INDENTURE
Dated as of September 16, 1997
Between
UNITED AUTO GROUP, INC.,
THE GUARANTORS PARTY HERETO,
and
THE BANK OF NEW YORK, Trustee
---------------
$50,000,000
11% Senior Subordinated Notes due 2007, Series B
CROSS-REFERENCE TABLE
Indenture
Trust Indenture Act Section Section
--------------------------- -------
ss.310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.08; 7.10; 13.02
(c) N.A.
ss.311(a) 7.11
(b) 7.11
(c) N.A.
ss.312(a) 2.05
(b) 13.03
(c) 13.03
ss.313(a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 7.06; 13.02
(d) 7.06
ss.314(a) 4.11; 4.12; 13.02
(b) N.A.
(c)(1) 13.04
(c)(2) 13.04
(c)(3) N.A.
(d) N.A.
(e) 13.05
(f) N.A.
ss.315(a) 7.01
(b) 7.05; 13.02
(c) 7.01(a)
(d) 7.01(c)
(e) 6.11
ss.316(a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 10.04
ss.317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
ss.318(a) 13.01
--------------
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed
to be a part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions...................................................1
SECTION 1.2. Other Definitions............................................19
SECTION 1.3. Incorporation by Reference of Trust Indenture Act............19
SECTION 1.4. Rules of Construction........................................20
ARTICLE II.
THE SECURITIES
SECTION 2.1. Form and Dating..............................................20
SECTION 2.2. Execution and Authentication.................................22
SECTION 2.3. Registrar and Paying Agent...................................23
SECTION 2.4. Paying Agent To Hold Money in Trust..........................23
SECTION 2.5. Securityholder Lists.........................................24
SECTION 2.6. Transfer and Exchange........................................24
SECTION 2.7. Replacement Securities.......................................33
SECTION 2.8. Outstanding Securities.......................................33
SECTION 2.9. Treasury Securities..........................................34
SECTION 2.10. Temporary Securities.........................................34
SECTION 2.11. Cancellation.................................................34
SECTION 2.12. Defaulted Interest...........................................35
SECTION 2.13. CUSIP or CINS Number.........................................35
SECTION 2.14. Payments of Interest.........................................35
ARTICLE III.
REDEMPTION
SECTION 3.1. Notices to Trustee...........................................36
SECTION 3.2. Selection of Securities To Be Redeemed.......................36
SECTION 3.3. Notice of Redemption.........................................36
SECTION 3.4. Effect of Notice of Redemption...............................37
SECTION 3.5. Deposit of Redemption Price..................................38
SECTION 3.6. Securities Redeemed in Part..................................38
ARTICLE IV.
COVENANTS
SECTION 4.1. Payment of Securities........................................38
SECTION 4.2. Maintenance of Office or Agency..............................38
SECTION 4.3. Limitation on Transactions with Affiliates...................39
SECTION 4.4. Limitation on Incurrence of Indebtedness.....................40
SECTION 4.5. Limitation on Certain Asset Dispositions.....................41
SECTION 4.6. Limitation on Restricted Payments............................42
SECTION 4.7. Corporate Existence..........................................46
SECTION 4.8. Payment of Taxes and Other Claims............................46
(i)
SECTION 4.9. Notice of Defaults...........................................47
SECTION 4.10. Maintenance of Properties....................................47
SECTION 4.11. Compliance Certificate.......................................47
SECTION 4.12. Provision of Financial Information...........................47
SECTION 4.13. Waiver of Stay, Extension or Usury Laws......................48
SECTION 4.14. Change of Control............................................48
SECTION 4.15. Limitation on Senior Subordinated Indebtedness...............50
SECTION 4.16. Limitation on Restrictions Affecting Restricted
Subsidiaries...............................................50
SECTION 4.17. Limitation on Liens..........................................51
SECTION 4.18. Subsidiary Guarantees........................................52
ARTICLE V.
MERGERS; SUCCESSOR CORPORATION
SECTION 5.1. Successor Corporation Substituted............................54
ARTICLE VI.
DEFAULT AND REMEDIES
SECTION 6.1. Events of Default............................................54
SECTION 6.2. Acceleration.................................................56
SECTION 6.3. Other Remedies...............................................56
SECTION 6.4. Waiver of Past Default.......................................56
SECTION 6.5. Control by Majority..........................................57
SECTION 6.6. Limitation on Suits..........................................57
SECTION 6.7. Rights of Holders to Receive Payment.........................58
SECTION 6.8. Collection Suit by Trustee...................................58
SECTION 6.9. Trustee May File Proofs of Claim.............................59
SECTION 6.10. Priorities...................................................59
SECTION 6.11. Undertaking for Costs........................................60
ARTICLE VII.
TRUSTEE
SECTION 7.1. Duties of Trustee............................................60
SECTION 7.2. Rights of Trustee............................................61
SECTION 7.3. Individual Rights of Trustee.................................62
SECTION 7.4. Trustee's Disclaimer.........................................62
SECTION 7.5. Notice of Defaults...........................................63
SECTION 7.6. Reports by Trustee to Holders................................63
SECTION 7.7. Compensation and Indemnity...................................63
SECTION 7.8. Replacement of Trustee.......................................65
SECTION 7.9. Successor Trustee by Merger, etc.............................66
SECTION 7.10. Eligibility; Disqualification................................66
ARTICLE VIII.
SUBORDINATION OF SECURITIES
SECTION 8.1. Securities Subordinated to Senior Debt.......................66
SECTION 8.2. Payment Over of Proceeds upon Dissolution, etc...............68
SECTION 8.3. Subrogation..................................................69
(ii)
SECTION 8.4. Obligations of Company Unconditional.........................70
SECTION 8.5. Notice to Trustee............................................70
SECTION 8.6. Trustee's Relation to Senior Debt............................71
SECTION 8.7. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt...................72
SECTION 8.8. Securityholders Authorize Trustee To Effectuate
Subordination of Securities................................72
SECTION 8.9. This Article Not to Prevent Events of Default................72
SECTION 8.10. Trustee's Compensation Not Prejudiced........................73
SECTION 8.11. No Waiver of Subordination Provisions........................73
SECTION 8.12. Subordination Provisions Not Applicable to Money Held
in Trust for Securityholders; Payments May Be Paid
Prior to Dissolution.......................................73
ARTICLE IX.
DISCHARGE OF INDENTURE
SECTION 9.1. Termination of Company's Obligations.........................74
SECTION 9.2. Application of Trust Money...................................75
SECTION 9.3. Repayment to Company.........................................76
SECTION 9.4. Reinstatement................................................76
ARTICLE X.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1. Without Consent of Holders...................................77
SECTION 10.2. With Consent of Holders......................................78
SECTION 10.3. Compliance with Trust Indenture Act..........................79
SECTION 10.4. Revocation and Effect of Consents............................79
SECTION 10.5. Notation on or Exchange of Securities........................80
SECTION 10.6. Trustee To Sign Amendments, etc..............................80
ARTICLE XI.
GUARANTEE
SECTION 11.1. Unconditional Guarantee......................................81
SECTION 11.2. Severability.................................................82
SECTION 11.3. Release of a Guarantor.......................................82
SECTION 11.4. Limitation of Guarantor's Liability..........................82
SECTION 11.5. Contribution.................................................83
SECTION 11.6. Execution of Guarantee.......................................83
SECTION 11.7. Subordination of Subrogation and Other Rights................83
ARTICLE XII.
SUBORDINATION OF GUARANTEE
SECTION 12.1. Guarantee Obligations Subordinated to Senior Debt of
Guarantor..................................................84
SECTION 12.2. No Payment on Guarantees in Certain Circumstances............84
(iii)
SECTION 12.3. Payment Over of Proceeds upon Dissolution, etc...............85
SECTION 12.4. Subrogation..................................................87
SECTION 12.5. Obligations of Guarantors Unconditional......................87
SECTION 12.6. Notice to Trustee............................................88
SECTION 12.7. Reliance on Judicial Order or Certificate of Liquidating
Agent......................................................89
SECTION 12.8. Trustee's Relation to Senior Debt of Guarantors..............89
SECTION 12.9. Subordination Rights Not Impaired by Acts or Omissions
of the Guarantors or Holders of Senior Debt of Guarantors..89
SECTION 12.10. Securityholders Authorize Trustee to Effectuate
Subordination of Guarantee.................................90
SECTION 12.11. This Article Not to Prevent Events of Default................90
SECTION 12.12. Trustee's Compensation Not Prejudiced........................90
SECTION 12.13. No Waiver of Guarantee Subordination Provisions..............90
SECTION 12.14. Payments May Be Paid Prior to Dissolution....................91
ARTICLE XIII.
MISCELLANEOUS
SECTION 13.1. Trust Indenture Act Controls.................................91
SECTION 13.2. Notices......................................................91
SECTION 13.3. Communications by Holders with Other Holders.................93
SECTION 13.4. Certificate and Opinion as to Conditions Precedent...........93
SECTION 13.5. Statements Required in Certificate or Opinion................93
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar....................94
SECTION 13.7. Governing Law................................................94
SECTION 13.8. No Recourse Against Others...................................94
SECTION 13.9. Successors...................................................94
SECTION 13.10. Counterpart Originals........................................94
SECTION 13.11. Severability.................................................95
SECTION 13.12. No Adverse Interpretation of Other Agreements................95
SECTION 13.13. Legal Holidays...............................................95
EXHIBIT A - FORM OF SECURITY................................................A-1
EXHIBIT B - FORM OF CERTIFICATE OF TRANSFER.................................B-1
EXHIBIT C - FORM OF CERTIFICATE OF EXCHANGE.................................C-1
==============
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of this Indenture.
(iv)
INDENTURE dated as of September 16, 1997, between UNITED AUTO
GROUP, INC., a Delaware corporation (the "Company"), the Guarantors party
hereto and THE BANK OF NEW YORK, a bank and trust company organized under the
New York Banking Law, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of the
Company's 11% Senior Subordinated Notes due 2007, Series B:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person (a)
assumed in connection with an Acquisition of such Person or (b) existing at the
time such Person becomes a Restricted Subsidiary or is merged or consolidated
with or into the Company or any Restricted Subsidiary; provided, however, that
such Indebtedness (x) was not Incurred in connection with, or in contemplation
of, such Acquisition, such Person becoming a Restricted Subsidiary or such
merger or consolidation and (y) is not recourse to any Person or assets other
than such Person or its assets (including its Subsidiaries and their assets).
"Acquisition" means (i) any capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) by the Company or any
Restricted Subsidiary to any other Person, or any acquisition or purchase of
Capital Stock of any other Person by the Company or any Restricted Subsidiary,
in either case pursuant to which such Person shall become a Restricted
Subsidiary or shall be consolidated or merged with or into the Company or any
Restricted Subsidiary or (ii) any acquisition by the Company or any Restricted
Subsidiary of the assets of any Person which constitute substantially all of an
operating unit or line of business of such Person or which is otherwise outside
of the ordinary course of business.
"Additional Interest" shall have the meaning set forth in
the Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar.
See Section 2.03.
"Applicable Procedures" means with respect to any transfer or
exchange of interests in a Global Security, the rules and procedures of DTC,
Euroclear and Cedel that apply to such transfer or exchange.
"Asset Disposition" means any sale, transfer or other
disposition (including, without limitation, by merger, consolidation or
sale-and-leaseback transaction) of (i) shares of Capital Stock of any
Restricted Subsidiary (other than directors' qualifying shares) or (ii)
property or assets (other than any cash or Cash Equivalents) of the Company or
any Restricted Subsidiary; provided, however, that an Asset Disposition shall
not include (a) any such sale, transfer or other disposition to the Company or
to any Restricted Guarantor, (b) any sale, transfer or other disposition of
defaulted receivables for collection or any sale, transfer or other disposition
of property or assets in the ordinary course of business, (c) any sale,
transfer or other disposition that does not (together with all related sales,
transfers or dispositions) involve aggregate consideration in excess of $2.5
million, (d) the granting of any Lien (or foreclosure thereon) to the extent
that such Lien is granted in compliance with Section 4.17, (e) any Restricted
Payment permitted by Section 4.06, (f) the sale, assignment, lease, conveyance
or disposition or other transfer (however effected, including, without
limitation, by merger or consolidation) of all or substantially all of the
assets of the Company and the Restricted Subsidiaries, taken as a whole, in
accordance with Section 5.01 or (g) any disposition that constitutes a Change
of Control.
"Atlantic Finance" means Atlantic Auto Finance Corporation
and its successors.
"Atlantic Finance Loan" means any loan by Atlantic Finance to
the Company which is due not later than the business day next following the day
such loan was made; provided, however, that (x) the proceeds of such loan are
deposited with a floor plan lender (including any bank holding Floor Plan
Notes) and (y) such loan bears interest at a rate not higher than that accruing
on such deposit.
"Average Life" means, as of the date of determination, with
respect to any Indebtedness for borrowed money or Preferred Stock, the quotient
obtained by dividing (i) the sum of the products of the number of years from
the date of determination to the dates of each successive scheduled principal
or liquidation value payments of such Indebtedness or Preferred Stock,
respectively, and the amount of such principal or liquidation value payments,
by (ii) the sum of all such principal or liquidation value payments.
-2-
"Basket" has the meaning set forth in Section 4.06.
"Board of Directors" means the Board of Directors of the
Company or any Guarantor, as the case may be, or any authorized committee of
that Board.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in the
City of New York, New York are authorized or obligated by law or executive
order to close.
"Capital Lease Obligations" of any Person means the
obligations to pay rent or other amounts under a lease of (or other
Indebtedness arrangements conveying the right to use) real or personal property
of such Person which are required to be classified and accounted for as a
capital lease or liability on the face of a balance sheet of such Person in
accordance with GAAP. The amount of such obligations shall be the capitalized
amount thereof in accordance with GAAP and the stated maturity thereof shall be
the date of the last payment of rent or any other amount due under such lease
prior to the first date upon which such lease may be terminated by the lessee
without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, partnership interests, participations or other equivalents (however
designated) of ownership of such Person.
"Cash Equivalents" means (i) marketable direct obligations
issued or guaranteed by the United States of America, or any governmental
entity or agency or political subdivision thereof (provided, that the full
faith and credit of the United States of America is pledged in support
thereof), maturing within one year of the date of purchase; (ii) commercial
paper issued by corporations or financial institutions maturing within 180 days
from the date of the original issue thereof, and rated "P-1" or better by
Xxxxx'x Investors Service or "A-1" or better by Standard & Poor's Ratings Group
or an equivalent rating or better by any other nationally recognized securities
rating agency; (iii) certificates of deposit issued or acceptances accepted by
or guaranteed by any bank or trust company organized under the laws of the
United States of America or any state thereof or the District of Columbia, in
each case having capital, surplus and undivided profits totaling more than
$500,000,000, maturing within one year of the date of purchase; and (iv) money
market funds substantially all of whose assets comprise securities of the type
described in clauses (i) through (iii).
"Common Stock" of any Person means Capital Stock of such
Person that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary
-3-
or involuntary liquidation, dissolution or winding up of such Person, to
shares of Capital Stock of any other class of such Person.
"Consolidated Cash Flow Available for Fixed Charges" means
for any period the Consolidated Net Income for such period (x) increased (to
the extent Consolidated Net Income for such period has been reduced thereby) by
the sum of (without duplication) (i) Consolidated Fixed Charges for such
period, plus (ii) Consolidated Income Tax Expense for such period, plus (iii)
the consolidated depreciation and amortization expense included in the income
statement of the Company prepared in accordance with GAAP for such period, plus
(iv) any other non-cash charges to the extent deducted from or reflected in
such Consolidated Net Income except for any non-cash charges that represent
accruals of, or reserves for, cash disbursements to be made in any future
accounting period and (y) decreased by interest income on deposits with floor
plan lenders (including any bank holding Floor Plan Notes) made with proceeds
of Atlantic Finance Loans.
"Consolidated Cash Flow Ratio" means for any period the ratio
of (i) Consolidated Cash Flow Available for Fixed Charges for such period to
(ii) Consolidated Fixed Charges for such period; provided, however, that all
Incurrences and repayments of Indebtedness (including the Incurrence giving
rise to such calculation and any repayments in connection therewith) and all
dispositions (including discontinued operations) or acquisitions of assets
(other than in the ordinary course of business) made during or after such
period and on or prior to the date of determination shall be given pro forma
effect as if they occurred on the first day of such four-quarter period, except
that Indebtedness under the Senior Credit Facility shall be deemed to be the
average daily balance of such Indebtedness during such four-quarter period.
Calculations of pro forma amounts in accordance with this definition may take
into account a reduction of cost of goods sold in the amount of interest earned
on financing proceeds deposited with any holder of Floor Plan Notes.
"Consolidated Fixed Charges" means for any period, without
duplication, (a) the consolidated interest expense included in a consolidated
income statement (without deduction of interest or finance charge income) of
the Company and the Restricted Subsidiaries for such period calculated on a
consolidated basis in accordance with GAAP (it being understood that the
foregoing does not include interest on Floor Plan Notes), but excluding (x) the
amortization of deferred financing costs and (y) interest on Atlantic Finance
Loans, and (b) dividend requirements of the Company and the Restricted
Subsidiaries with respect to Disqualified Stock and with respect to all other
Preferred Stock of Restricted Subsidiaries (in each case (i) whether in cash or
otherwise (except dividends payable solely in shares of Capital Stock (other
than any Disqualified Stock) of the Company or any Restricted Subsidiary) and
(ii) other than dividends with respect to Capital Stock held by the
-4-
Company or any Restricted Guarantor) paid, declared, accrued or accumulated
during such period times, in the case of this clause (b), a fraction the
numerator of which is one and the denominator of which is one minus the then
effective consolidated federal, state and local income tax rate of the
Company, expressed as a decimal.
"Consolidated Income Tax Expense" means for any period the
consolidated provision for income taxes of the Company and the Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with GAAP.
"Consolidated Net Income" means for any period the
consolidated net income (or loss) of the Company and the Restricted
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP; provided, however, that there shall be excluded therefrom (a) the
net income (or loss) of any Person acquired by the Company or any Restricted
Subsidiary in a pooling-of-interests transaction for any period prior to the
date of such transaction, (b) the net income (or loss) of any Restricted
Subsidiary (other than any Guarantor) which is then subject to restrictions
that prevent or limit the payment of dividends or the making of distributions
to such Person to the extent of such restrictions (regardless of any waiver
thereof), (c) non-cash gains and losses due solely to fluctuations in currency
values, (d) the net income (or loss) of any Person that is not a Restricted
Subsidiary, except to the extent of the amount of dividends or other
distributions representing the Company's proportionate share of such Person's
net income for such period actually paid in cash to the Company by such Person
during such period, (e) other than for calculating the Basket, gains or losses
on Asset Dispositions by the Company or any Restricted Subsidiary, (f) other
than for calculating the Basket, all extraordinary or non-recurring gains or
losses determined in accordance with GAAP, (g) the effect of FASB 52
(hyperinflationary accounting) and interpretations by the SEC thereof and (h)
in the case of a successor to the Company by consolidation or merger or as a
transferee of the Company's assets, any earnings (or losses) of the successor
corporation prior to such consolidation, merger or transfer of assets.
"Consolidated Net Worth" of any Person means the
consolidated stockholders' equity of such Person, determined on a consolidated
basis in accordance with GAAP, less (without duplication) amounts attributable
to Disqualified Stock of such Person or attributable to Unrestricted
Subsidiaries.
"Continuing Director" means a director who either was a
member of the Board of Directors of the Company on the Issue Date or who became
a director of the Company subsequent to the Issue Date and whose election, or
nomination for election by the Company's stockholders, was duly approved by a
majority of the Continuing Directors then on the Board of Directors of the
Company, either by a specific vote or by approval of the proxy
-5-
statement issued by the Company on behalf of the entire Board of Directors of
the Company in which such individual is named as nominee for director.
"Currency Agreement" means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement
or arrangement, which may include the use of derivatives, designed to protect
such Person against, or to expose such Person to, fluctuations in currency
values.
"Default" means any event that is, or after notice or lapse
of time or both would become, an Event of Default.
"Designated Senior Debt" means (i) so long as the Senior
Credit Facility is in effect, the Senior Debt incurred thereunder and (ii) any
other Senior Debt which has at the time of initial issuance an aggregate
outstanding principal amount in excess of $25 million which has been so
designated as Designated Senior Debt by the Board of Directors of the Company
at the time of initial issuance in a resolution delivered to the Trustee.
"Disinterested Director" means a member of the Board of
Directors of the Company who does not have any material direct or indirect
financial interest in or with respect to the transaction being considered.
"Disqualified Stock" of any Person means any Capital Stock of
such Person which, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the final maturity of the Notes; provided,
however, that any such Capital Stock that so matures or is redeemable in part
shall be deemed Disqualified Stock only to the extent that it so matures or is
so redeemable.
"DTC" means The Depository Trust Company or its successors.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York
(Brussels Office) as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Exchange Registration Statement" has the meaning set forth
in the Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset, the
price (after taking into account any liabilities relating to such asset) which
could be negotiated in an arm's-length transaction, for cash, between a willing
seller and a willing and
-6-
able buyer, neither of which is under any compulsion to complete the
transaction; provided, however, that the Fair Market Value of any such asset
or assets shall be determined conclusively (i) for any determination pursuant
to the covenant described under Section 4.05 or 4.06 by the Board of Directors
of the Company acting in good faith, which determination shall be evidenced by
a resolution of such Board delivered to the Trustee, and (ii) for any other
determination by an officer of the Company acting in good faith.
"Floor Plan Notes" means Indebtedness of the Company or any
Restricted Subsidiary all of the proceeds of which are used to purchase
vehicles and/or vehicle parts and supplies to be sold in the ordinary course of
business of the Company and the Restricted Subsidiaries.
"GAAP" means generally accepted accounting principles,
consistently applied, as in effect on the Issue Date in the United States of
America, as set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as is approved by a significant
segment of the accounting profession in the United States.
"Guarantee" means a guarantee of the Notes by a Guarantor
under this Indenture.
"guarantee" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of negotiable instruments for collection
in the ordinary course of business), direct or indirect, in any manner, of any
part or all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any way
the payment or performance (or payment of damages in the event of
non-performance) of all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of credit.
A guarantee shall include, without limitation, any agreement to maintain or
preserve any other Person's financial condition or to cause any other Person to
achieve certain levels of operating results. It is understood that the
obligations of the Company under the Support Agreement dated as of June 14,
1996 between the Company and Atlantic Auto Second Funding Corporation
constitute a guarantee for purposes of this Indenture only to the extent of the
accrued liability, if any, of the Company for any breach of the representations
and warranties of Atlantic Finance contained in Section 3.2 of the Purchase
Agreement dated as of June 14, 1996 between Atlantic Auto Second Funding
Corporation and Atlantic Finance, and that obligations of the Company under
similar agreements will constitute a guarantee for purposes of this Indenture
only to the extent of similar accrued liabilities.
-7-
"Guarantor" means (i) each Subsidiary of the Company that, on
the Issue Date, is an obligor (including as guarantor) under, or in respect of,
the Senior Credit Facility and (ii) each Subsidiary of the Company that
pursuant to the terms of this Indenture executes a supplemental indenture to
this Indenture as a Guarantor, in each case, until such Subsidiary is released
from its Guarantee.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable in respect
of such Indebtedness or other obligation or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "Incurrence," "Incurred" and "Incurring"
shall have meanings correlative to the foregoing). Indebtedness of any Person
or any of its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary (or is merged into or consolidates with the Company or
any Restricted Subsidiary), whether or not such Indebtedness was incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary (or being merged into or consolidated with the Company or any
Restricted Subsidiary), shall be deemed Incurred at the time any such Person
becomes a Restricted Subsidiary or merges into or consolidates with the Company
or any Restricted Subsidiary. Neither the accrual of interest, nor the
accretion of accreted value, shall be deemed to be an Incurrence.
"Indebtedness" means (without duplication), with respect to
any Person, whether recourse is to all or a portion of the assets of such
Person and whether or not contingent, (i) all indebtedness of such Person for
money borrowed, (ii) all indebtedness of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses, (iii)
every reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such Person, (iv) all indebtedness of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business), (v)
every Capital Lease Obligation of such Person, (vi) every net obligation under
interest rate swap or similar agreements or foreign currency hedge, exchange or
similar agreements of such Person and (vii) every obligation of the type
referred to in clauses (i) through (vi) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable for, directly or indirectly, as obligor, guarantor
or otherwise. Indebtedness (a) shall include (without duplication) the
-8-
liquidation preference and any mandatory redemption payment obligations in
respect of any Disqualified Stock of the Company, and any Preferred Stock of a
Subsidiary of the Company, (b) shall never be calculated taking into account
any cash and cash equivalents held by such Person, (c) shall not include
obligations arising from agreements of the Company or a Subsidiary to provide
for indemnification, adjustment of purchase price, earn-out or other similar
obligations, in each case, Incurred in connection with the acquisition or
disposition of any business or assets of a Subsidiary, (d) which provides that
an amount less than the principal amount thereof shall be due upon any
declaration of acceleration thereof shall be deemed to be incurred or
outstanding in an amount equal to the accreted value thereof at the date of
determination determined in accordance with GAAP and (e) shall not be deemed to
be Incurred upon the issuance of a guarantee by the Company, in connection with
an Acquisition, of the price of its Common Stock, unless such guarantee is
evidenced by a bond, debenture, note or similar instrument.
"Indenture" means this Indenture as amended or supplemented
from time to time in accordance with its terms.
"Initial Global Securities" means the Regulation S Global
Security and the 144A Global Security, each of which contains a Securities Act
Legend.
"Initial Securities" means the Securities containing a
Securities Act Legend.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D promulgated under the Securities Act.
"interest" means, with respect to the Notes, the sum of any
cash interest and any Additional Interest on the Notes.
"Interest Payment Date" has the meaning given to such term
in the Securities.
"Interest Rate Obligations" means, with respect to any
Person, the obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and (ii)
other agreements or arrangements designed to protect such Person against, or to
expose such Person to, fluctuations in interest rates.
"Investment" by any Person means any direct or indirect loan,
advance, guarantee or other extension of credit or capital contribution to (by
means of transfers of cash or other property to others or payments for property
or services for the account or use of others, or otherwise), or purchase or
acquisition of
-9-
Capital Stock, bonds, notes, debentures or other securities or evidence of
Indebtedness issued by, any other Person.
"Issue Date" means July 23, 1997, the original issue date of
the Series A Notes.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Net Available Proceeds" from any Asset Disposition by any
Person means cash or Cash Equivalents received (including by way of sale or
discounting of a note, installment receivable or other receivable, but
excluding any other consideration received (x) in the form of assumption by the
acquiror of Indebtedness or other obligations relating to such properties or
assets or (y) in any other non-cash form) therefrom by such Person, including
any cash received by way of deferred payment or upon the monetization or other
disposition of any non-cash consideration (including notes or other securities)
received in connection with such Asset Disposition, net of (i) all legal, title
and recording tax expenses, commissions, any relocation expenses incurred as a
result thereof and other fees and expenses incurred and all federal, state,
foreign and local taxes required to be accrued as a liability as a consequence
of such Asset Disposition, (ii) all payments made by such Person or any of its
Restricted Subsidiaries on, or in respect of, any Indebtedness (A) which is
secured by such assets in accordance with the terms of any Lien upon or with
respect to such assets or (B) which must, by the terms of such Lien or
otherwise (including the obtaining of any necessary consent in respect thereof
to such Asset Disposition) or by applicable law, be repaid as a result of such
Asset Disposition, (iii) all payments made with respect to liabilities
associated with the assets which are the subject of the Asset Disposition,
including, without limitation, trade payables and other accrued liabilities,
(iv) appropriate amounts to be provided by such Person or any Restricted
Subsidiary thereof, as the case may be, as a reserve in accordance with GAAP
against any liabilities associated with such assets and retained by such Person
or any Restricted Subsidiary thereof, as the case may be, after such Asset
Disposition, including, without limitation, liabilities under any
indemnification obligations and severance and other employee termination costs
associated with such Asset Disposition, until such time as such amounts are no
longer reserved or such reserve is no longer necessary (at which time any
remaining amounts will become Net Available Proceeds to be allocated in
accordance with the provisions of the second and third sentences of Section
4.05) and (v) all distributions and
10
other payments made to minority interest holders in Restricted Subsidiaries of
such Person or joint ventures as a result of such Asset Disposition.
"Net Investment" means, in respect of any Investment and the
issuer thereof (and its Subsidiaries), the excess of (i) the aggregate amount
of all Investments made therein by the Company or any Restricted Subsidiary on
or after the Issue Date (including the Fair Market Value of all such
Investments not made in cash or Cash Equivalents, valued at the time of each
such Investment) over (ii) the aggregate amount returned in cash or Cash
Equivalents on or with respect to Investments in such Person (whenever such
Investment was made) whether through the sale or other disposition of the
Investment in such Person (or portion thereof) or through interest payments,
principal payments, dividends or other distributions or payments; provided,
however, that such payments or distributions shall not be (and have not been)
included in Section 4.06(a)(3)(D).
"Offer to Purchase" means a written offer (the "Offer") sent
by the Company by first class mail, postage prepaid, to each Holder at his
address appearing in the register for the Securities on the date of the Offer
offering to purchase up to the principal amount of Securities specified in such
Offer at the purchase price specified in such Offer (as determined pursuant to
this Indenture). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "Expiration Date") of the Offer to Purchase
which shall be not less than 30 days nor more than 60 days after the date of
such Offer and a settlement date (the "Purchase Date") for purchase of
Securities within five Business Days after the Expiration Date. The Company
shall notify the Trustee in writing at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of
the Company's obligation to make an Offer to Purchase, and the Offer shall be
mailed by the Company or, at the Company's written request, by the Trustee in
the name and at the expense of the Company. The Offer shall contain all the
information required by applicable law to be included therein. The Offer shall
contain all instructions and materials necessary to enable such holders to
tender Securities pursuant to the Offer to Purchase. The Offer shall also
state:
(i) the Section of this Indenture pursuant to which the
Offer to Purchase is being made;
(ii) the Expiration Date and the Purchase Date;
(iii) the aggregate principal amount of the outstanding
Securities offered to be purchased by the Company pursuant to the
Offer to Purchase (including, if less than 100%, the manner by which
such amount has been determined pursuant to the Section of this
Indenture requiring the Offer to Purchase) (the "Purchase Amount");
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(iv) the purchase price to be paid by the Company for each
$1,000 aggregate principal amount of Securities accepted for payment
(as specified pursuant to this Indenture) (the "Purchase Price");
(v) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount;
(vi) the place or places where Securities are to be
surrendered for tender pursuant to the Offer to Purchase;
(vii) that interest on any Security not tendered or tendered
but not purchased by the Company pursuant to the Offer to Purchase
will continue to accrue;
(viii) that on the Purchase Date the Purchase Price will
become due and payable upon each Security being accepted for payment
pursuant to the Offer to Purchase and that interest thereon shall
cease to accrue on and after the Purchase Date;
(ix) that each Holder electing to tender all or any portion
of a Security pursuant to the Offer to Purchase will be required to
surrender such Security at the place or places specified in the Offer
prior to the close of business on the Expiration Date (such Security
being duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing);
(x) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or its Paying Agent)
receives, not later than the close of business on the fifth Business
Day next preceding the Expiration Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
the Securities the holder tendered, the certificate number of the
Securities the Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(xi) that (a) if Securities in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall
purchase all such Securities and (b) if Securities in an aggregate
principal amount in excess of the Purchase Amount are tendered and
not withdrawn pursuant to the Offer to Purchase, the Company shall
purchase Securities having an aggregate principal amount equal to the
Purchase Amount on a pro rata basis (with such adjustments as may be
deemed appropriate so that only
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Securities in denominations of $1,000 or integral multiples thereof
shall be purchased); and
(xii) that in the case of any Holder whose Security is
purchased only in part, the Company shall execute and the Trustee
shall authenticate and deliver to the holder of such Security without
service charge, a new Security or Securities, of any authorized
denomination as requested by such holder in writing, in an aggregate
principal amount equal to and in exchange for the unpurchased portion
of the Security so tendered.
An Offer to Purchase shall be governed by and effected in
accordance with the provisions above pertaining to any Offer. An Offer to
Purchase may be conditioned on the consummation of the applicable Change of
Control events.
"Officer" means the Chairman of the Board, the Chief
Executive Officer, any Executive Vice President, any Senior Vice President, the
Chief Financial Officer, the Treasurer, or the Secretary of the Company.
"Officers' Certificate" means a certificate, signed by two
Officers (at least one of whom shall be the Chief Financial Officer or Senior
Vice President-Finance of the Company) or by an Officer and an Assistant
Treasurer or Assistant Secretary of the Company, complying with Sections 13.04
and 13.05.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Participant" means any Person who has an account with DTC.
"Permitted Holder" means any of Trace, Harvard Private
Capital Group, Inc., Aeneas Venture Corporation and Apollo Advisors, L.P. and
their Affiliates.
"Permitted Investments" means (i) Investments in Cash
Equivalents; (ii) Investments representing Capital Stock or obligations issued
to the Company or any Restricted Subsidiary in the course of the good faith
settlement of claims against any other Person or by reason of a composition or
readjustment of debt or a reorganization of any debtor of the Company or any
Restricted Subsidiary; (iii) deposits, including interest-bearing deposits,
maintained in the ordinary course of business in banks or with floor plan
lenders; (iv) trade receivables and prepaid expenses, in each case arising in
the ordinary course of business; provided, however, that such receivables and
prepaid expenses would be recorded as assets of such Person in accordance with
GAAP; (v) endorsements for collection or deposit in the ordinary course of
business by such Person of bank drafts and similar negotiable instruments of
such other Person received as
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payment for ordinary course of business trade receivables; (vi) any Interest
Rate Obligations or Currency Agreements with an unaffiliated Person permitted
by Section 4.14; (vii) Investments received as consideration for an Asset
Disposition in compliance with Section 4.05; (viii) Investments in the Company
or any Restricted Subsidiary or any Person that after giving effect to such
Investment will be a Restricted Subsidiary; and (ix) prepaid expenses and
loans or advances to employees of the Company or any Restricted Subsidiary in
the ordinary course of business.
"Permitted Refinancing" means, with respect to any
Indebtedness, Indebtedness to the extent representing a Refinancing of such
Indebtedness; provided, however, that (a) such Indebtedness does not exceed the
amount of Indebtedness so Refinanced plus the amount of any premium required to
be paid in connection with such Refinancing pursuant to the terms of the
Indebtedness Refinanced or the amount of any premium reasonably determined by
the issuer of such Indebtedness as necessary to accomplish such Refinancing by
means of a tender offer, exchange offer or privately negotiated repurchase,
plus the expenses of such issuer reasonably incurred in connection therewith,
(b) in the case of any Refinancing of Indebtedness that is pari passu with the
Securities, such Refinancing Indebtedness is made pari passu with or
subordinate in right of payment to the Securities, and, in the case of any
Refinancing of Indebtedness that is subordinate in right of payment to the
Securities, such Refinancing Indebtedness is subordinate in right of payment to
the Securities on terms no less favorable to the Holders than those contained
in the Indebtedness being Refinanced, (c) the Refinancing Indebtedness by its
terms, or by the terms of any agreement or instrument pursuant to which such
Indebtedness is issued, does not have an Average Life that is less than the
remaining Average Life of the Indebtedness being Refinanced and does not permit
redemption or other retirement (including pursuant to any required offer to
purchase to be made by the Company or a Restricted Subsidiary) of such
Indebtedness at the option of the holder thereof prior to the final stated
maturity of the Indebtedness being Refinanced, other than a redemption or other
retirement at the option of the holder of such Indebtedness (including pursuant
to a required offer to purchase made by the Company or a Restricted Subsidiary)
which is conditioned upon a change of control of the Company pursuant to
provisions substantially similar to those contained in Section 4.14 or which is
otherwise on terms substantially similar to those in such Indebtedness being
Refinanced and (d) such Refinancing Indebtedness is Incurred by the obligor on
the Indebtedness being Refinanced or by the Company or any Restricted
Guarantor.
"Person" means any individual, corporation, limited or
general partnership, limited liability company, limited liability partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
-14-
"Preferred Stock" means Capital Stock of any Person of any
class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to Capital Stock of any
other class of such Person.
"principal" of any Security means principal of, and premium,
if any, with respect to, such Security.
"Private Exchange Securities" has the meaning set forth in
the Registration Rights Agreement.
"Public Equity Offering" means an underwritten public
offering of Common Stock of the Company pursuant to an effective registration
statement filed under the Securities Act (excluding any registration statements
filed on Form S-8 or any successor form).
"Purchase Date" has the meaning set forth in the definition
of "Offer to Purchase."
"Purchase Money Debt" means Indebtedness of the Company or
any Restricted Subsidiary Incurred for the purpose of financing all or any part
of the purchase price, or the cost of construction or improvement, of any
property; provided, however, that the aggregate amount of such Indebtedness
shall not exceed the lesser of (x) the Fair Market Value of such property or
(y) such purchase price or cost.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified under Rule 144A under the Securities Act.
"Qualified Stock" means any Capital Stock of the Company
other than Disqualified Stock.
"Refinance" means refinance, renew, extend, replace, defease
or refund; and "Refinancing" and "Refinanced" have correlative meanings.
"Registration Rights Agreement" means the Registration
Rights Agreement dated the date hereof among the Company, the guarantors party
thereto and X.X. Xxxxxx Securities Inc. and Scotia Capital Markets (USA) Inc.
"Regulation S" means Regulation S under the Securities Act.
"Replacement Assets" means (x) properties and assets (other
than cash or any Capital Stock or other security) that will be used in a
business of the Company and the Restricted Subsidiaries conducted on the Issue
Date or in a business reasonably related thereto or (y) Capital Stock of any
Person
-15-
that will become on the date of Acquisition thereof a Restricted Subsidiary as
a result of such Acquisition.
"Restricted Guarantor" means, at any time of determination, a
Restricted Subsidiary that is a Guarantor at such time.
"Restricted Physical Security" means a Physical Security
containing, or required to contain, a Securities Act Legend.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 11% Senior Subordinated Notes due
2007, Series B issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Senior Credit Facility" means the Credit Agreement, dated as
of March 20, 1997, among the Company, as borrower, the guarantors party
thereto, The Bank of Nova Scotia, as administrative agent, Xxxxxx Guaranty
Trust Company of New York, as documentation agent, and the lenders named
therein, including any deferrals or Refinancings thereof, or amendments,
modifications or supplements thereto (including, without limitation, any
amendment increasing the amount borrowed thereunder), and any agreement
providing therefor whether by or with the same or any other lender, creditors
or group of creditors and including related notes, guarantee agreements and
other instruments and agreements executed in connection therewith.
"Senior Debt" means, with respect to any Person at any date,
(i) in the case of the Company or any Guarantor, all Indebtedness under the
Senior Credit Facility, including principal, premium, if any, and interest on
such Indebtedness and all other amounts due on or in connection with such
Indebtedness, including all charges, fees and expenses, (ii) all other
Indebtedness of such Person for borrowed money, including principal, premium,
if any, and interest on such Indebtedness, unless the agreement or instrument
under which such Indebtedness for borrowed money is created, incurred, assumed
or guaranteed expressly provides that such Indebtedness for borrowed money is
not senior or superior in right of payment to the Securities, and all
Refinancings or amendments thereof and (iii) all interest on
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any Indebtedness referred to in clauses (i) and (ii) accruing during the
pendency of any bankruptcy or insolvency proceeding, whether or not allowed or
allowable as a claim in such proceeding thereunder. Notwithstanding the
foregoing, Senior Debt of any Person shall not include (a) Indebtedness which
is pursuant to its terms or any agreement or instrument relating thereto
subordinated or junior in right of payment or otherwise to any other
Indebtedness of such Person (including, without limitation, Indebtedness
represented by Disqualified Stock); provided, however, that no Indebtedness
shall be deemed to be subordinated or junior in right of payment or otherwise
to any other Indebtedness of a Person solely by reason of such other
Indebtedness being secured and such Indebtedness not being secured, (b) the
Securities or the Guarantees, (c) any Indebtedness of such Person to any of
its Subsidiaries, (d) Indebtedness Incurred in violation of Section 4.04, (e)
obligations for goods, materials or services purchased or rendered in the
ordinary course of business or obligations consisting of trade payables, (f)
any liability for federal, state, local or other taxes owed or owing by such
Person and (g) any Indebtedness which, when incurred and without respect to
any election under Section 1111(b) of the Bankruptcy Code, is without recourse
to such Person.
"Series A Indenture" means the Indenture dated as of July 23,
1997 among the Company, the guarantors party thereto and The Bank of New York,
as trustee.
"Series A Notes" means the 11% Senior Subordinated Notes due
2007 issued under the Series A Indenture or substantially identical securities
for which such notes are exchanged pursuant to the Registration Rights
Agreement dated as of July 23, 1997 among the Company, the guarantors party
thereto and the initial purchasers party thereto.
"Shelf Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Subordinated Indebtedness" of the Company or any Guarantor
means any Indebtedness (whether outstanding on the date hereof or hereafter
Incurred) which is by its terms expressly subordinate or junior in right of
payment to the Securities or the Guarantee of such Guarantor, as the case may
be.
"Subsidiary" of any Person means (i) a corporation more than
50% of the outstanding Voting Stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more other Subsidiaries thereof or (ii) any other Person
(other than a corporation) 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 at least a majority ownership and voting
power relating to the policies, management and affairs thereof.
-17-
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
xx.xx. 77aaa-77bbbb), as in effect on the date of this Indenture, except as
provided in Section 10.03.
"Trace" means Trace International Holdings, Inc. and its
successors.
"Trust Officer" means any officer within the corporate trust
department (or any successor group) of the Trustee including any vice
president, assistant vice president, assistant secretary or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at that time shall be such officers, and
also means, with respect to a particular corporate trust matter, any other
officer to whom such trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Unrestricted Global Securities" means one or more Global
Securities that do not and are not required to bear the Securities Act Legend.
"Unrestricted Physical Securities" means one or more Physical
Securities that do not and are not required to bear the Securities Act Legend.
"Unrestricted Securities" means the Securities that do not
and are not required to bear the Securities Act Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination has been designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below, (ii) any
Subsidiary of an Unrestricted Subsidiary and (iii) until it is redesignated as
a Restricted Subsidiary in the manner provided below, Atlantic Finance. Any
such designation by the Board of Directors will be evidenced to the Trustee by
promptly filing with the Trustee a copy of the board resolution giving effect
to such designation and an officers' certificate certifying that such
designation complied with the foregoing provisions. The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, at any
time, (a) be liable for any Indebtedness of any Unrestricted Subsidiary (other
than in the form of an Investment therein in accordance with Section 4.06) or
(b) be liable for any Indebtedness that provides that the holder thereof may
(upon notice, lapse of time or both) declare a default thereon or cause the
payment thereof to be accelerated or payable prior to its stated final maturity
upon the occurrence of a default with respect to any Indebtedness of any
Unrestricted Subsidiary. The Board of Directors may redesignate any
Unrestricted Subsidiary to
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be a Restricted Subsidiary; provided, however, that (i) no Default shall have
occurred and be continuing and (ii) Indebtedness of such Unrestricted
Subsidiary and all Liens on any asset of such Unrestricted Subsidiary
outstanding immediately following such redesignation would, if Incurred at
such time, be permitted to be Incurred under this Indenture.
"Voting Stock" of any Person means the Capital Stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason
of any contingency.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all
of the outstanding Capital Stock or other ownership interests of which (other
than directors' qualifying shares) shall at the time be owned by the Company
and/or by one or more Wholly Owned Subsidiaries.
SECTION 1.2. Other Definitions.
Term Defined in Section
---- ------------------
"Bankruptcy Law" 6.01
"Change of Control" 4.14
"Custodian" 6.01
"Event of Default" 6.01
"Funding Guarantor" 11.05
"Global Security" 2.01(a)
"Guarantor Blockage Period" 12.02(a)
"Guarantor Payment Blockage Notice" 12.02(a)
"144A Global Security" 2.01(a)
"Paying Agent" 2.03
"Payment Blockage Notice" 8.02(a)
"Payment Blockage Period" 8.02(a)
"Physical Security" 2.01(b)
"Registrar" 2.03
"Regulation S Global Security" 2.01(a)
"Required Filing Date" 4.12
"Securities Act Legend" 2.06(f)
"United States Government Obligation" 9.01
SECTION 1.3. Incorporation by Reference of Trust Indenture
Act.
Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Securities.
-19-
"indenture security holder" means a Holder or 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 Securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by
Commission rule and not otherwise defined herein 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 generally accepted accounting
principles in effect from time to time, and any other reference in
this Indenture to "generally accepted accounting principles" refers
to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in
the plural include the singular;
(5) Section and Article references are to sections and
articles of this Indenture;
(6) provisions apply to successive events and transactions;
and
(7) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE II.
THE SECURITIES
SECTION 2.1. Form and Dating.
(a) Global Securities. Securities offered and sold to QIBs in
reliance on Rule 144A shall be issued initially substantially in the form of
Exhibit A hereto in the name of Cede & Co. as nominee of DTC, duly executed by
the Company and
-20-
authenticated by the Trustee as hereinafter provided. Such Security shall be
referred to herein as the "144A Global Security." Securities offered and sold
in reliance on Regulation S shall be issued initially substantially in the
form of Exhibit A hereto in the name of Cede & Co. as nominee of DTC, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. Such Security shall be referred to herein as the "Regulation S
Global Security." Unrestricted Global Securities shall be issued initially in
accordance with Sections 2.06(b)(iv), 2.06(c)(ii) and 2.06(e) in the name of
Cede & Co. as nominee of DTC, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The 144A Global Security, Regulation S
Global Security and Unrestricted Global Security are collectively referred to
herein as the "Global Securities." The aggregate principal amount of each of
the Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee as hereinafter provided.
Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Securities from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Securities represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges, redemptions and transfers of interests
therein in accordance with the terms of this Indenture. Any endorsement of a
Global Security to reflect the amount of any increase or decrease in the
principal amount of outstanding Securities represented thereby shall be made by
the Trustee in accordance with instructions given by the Holder thereof as
required by Section 2.06.
Upon the issuance of the Global Security to DTC, DTC shall
credit, on its internal book-entry registration and transfer system, its
Participants' accounts with the respective interests owned by such
Participants. Interests in the Global Securities shall be limited to
Participants, including Euroclear and Cedel, and indirect Participants.
The Participants shall not have any rights either under this
Indenture or under any Global Security with respect to such Global Security
held on their behalf by DTC, and DTC may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such
Global Security for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest on the
Global Securities and for all other purposes. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by DTC or impair, as between DTC and its
Participants, the operation of customary practices of DTC governing the
exercise of the rights of an owner of a beneficial interest in any Global
Security.
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The provisions of the "Operating Procedures of the Euroclear
System," "Terms and Conditions Governing Use of Euroclear," the "General Terms
and Conditions of Cedel Bank" and "Customer Handbook" of Cedel, and successors
provisions, shall be applicable to interests in the Regulation S Global
Security that are held by the Participants through Euroclear or Cedel.
(b) Physical Securities. Securities offered and sold to
Institutional Accredited Investors who are not also QIBs shall be issued
substantially in the form of Exhibit A hereto, in certificated form and issued
in the names of the purchasers thereof (or their nominees), duly executed by
the Company and authenticated by the Trustee as hereinafter provided.
Securities in certificated form shall be referred to herein as the "Physical
Securities."
(c) Securities. The provisions of the form of Securities
contained in Exhibit A hereto are incorporated herein by reference. The
Securities and the Trustee's Certificates of Authentication shall be
substantially in the form of Exhibit A hereto. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall approve the form of the Securities and any notation,
legend or endorsement (including notations relating to the Guarantee) on them.
If required, the Securities shall bear the appropriate legend regarding
original issue discount for federal income tax purposes. Each Security shall be
dated the date of its authentication. The terms and provisions contained in the
Securities shall constitute, and are hereby expressly made, a part of this
Indenture.
SECTION 2.2. Execution and Authentication.
Two Officers of the Company shall sign the Securities for the
Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer
holds that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless.
A Security shall not be valid until an authorized officer of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Securities for
original issue in the aggregate principal amount of up to $50,000,000 in one or
more series, (ii) Private Exchange Securities from time to time only in
exchange for a like principal amount of Initial Global Securities and (iii)
Unrestricted Securities from time to time only (x) in exchange for a like
principal amount of Initial Securities or (y) in an aggregate principal amount
of not more than the excess of
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$50,000,000 over the sum of the aggregate principal amount of (A) Initial
Securities then outstanding, (B) Private Exchange Securities then outstanding
and (C) Unrestricted Securities issued in accordance with clause (iii)(x), in
each case upon a written order signed by an Officer of the Company. The order
shall specify the amount of Securities to be authenticated and the date on
which the original issue of Securities is to be authenticated. The order shall
also provide instructions concerning registration, amounts for each Holder and
delivery. The aggregate principal amount of Securities outstanding at any time
may not exceed $50,000,000 except as provided in Section 2.07. The Securities
shall be issued only in registered form, without coupons and only in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Securities may be presented for
payment ("Paying Agent"). The Company may have one or more co-Registrars and
one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent and shall, if required,
incorporate the provisions of the TIA. 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 or Paying Agent, the Trustee shall act as such and shall
be entitled to appropriate compensation in accordance with the provisions of
Section 7.07.
The Company initially appoints the Trustee as Registrar and
Paying Agent. The Company shall give written notice to the Trustee in the
event that the Company decides to act as Registrar. None of the Company, its
Subsidiaries or any of their Affiliates may act as Paying Agent.
SECTION 2.4. Paying Agent To Hold Money in Trust.
The Company shall require each Paying Agent to agree in
writing to hold in trust for the benefit of Securityholders or the Trustee all
money held by the Paying Agent for the payment of principal of or interest on
the Securities (whether such money has been paid to it by the Company or any
other obligor on the Securities), and the Company and the Paying Agent shall
each notify the Trustee in writing of any default by the Company (or any other
obligor on the Securities) in making any such payment. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed and the Trustee may at any time during the
continuance
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of any payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon making such payment the Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 2.5. 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 Securityholders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least five Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders.
SECTION 2.6. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. Transfer of
the Global Securities shall be by delivery.
Global Securities will be exchanged by the Company for
Physical Securities only (i) if DTC notifies the Company that it is unwilling
or unable to continue to act as depositary with respect to the Global
Securities or ceases to be a clearing agency registered under the Exchange Act
and, in either case, a successor depositary registered as a clearing agency
under the Exchange Act is not appointed by the Company within 120 days, (ii) at
any time if the Company in its sole discretion determines that the Global
Securities (in whole but not in part) should be exchanged for Physical
Securities or (iii) if the owner of an interest in the Global Securities
requests such Physical Securities, following an Event of Default under the
Indenture, in a writing delivered through DTC to the Trustee.
Upon the occurrence of any of the events specified in the
previous paragraph, Physical Securities shall be issued in such names as DTC
shall instruct the Trustee in writing and the Trustee shall cause the aggregate
principal amount of the applicable Global Security to be reduced accordingly
and direct DTC to make a corresponding reduction in its book-entry system. The
Company shall execute and the Trustee shall authenticate and make available for
delivery to the Person designated in the instructions a Physical Security in
the appropriate principal amount. The Trustee shall make available for delivery
such Physical Securities to the Persons in whose names such Securities are so
registered. Physical Securities issued in exchange for an Initial Global
Security pursuant to this Section 2.06(a) shall bear the Securities Act Legend
and shall be subject to all restrictions on transfer contained therein. Global
Securities may also be exchanged or replaced, in whole or in part, as provided
in Sections 2.07 and 2.10. Every Security authenticated and made available for
delivery in exchange for, or in lieu of, a
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Global Security or any portion thereof, pursuant to Section .2.07 or 2.10,
shall be authenticated and made available for delivery in the form of, and
shall be, a Global Security. A Global Security may not be exchanged for
another Security other than as provided in this Section 2.06(a).
(b) Transfer and Exchange of Interests in Global Securities.
The transfer and exchange of interests in Global Securities shall be effected
through DTC, in accordance with this Indenture and the procedures of DTC
therefor. Interests in Initial Global Securities shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. The Trustee shall have no obligation to
ascertain DTC's compliance with any such restrictions on transfer. Transfers of
interests in Global Securities shall also require compliance with subparagraph
(i) below, as well as one or more of the other following subparagraphs as
applicable:
(i) All Transfers and Exchanges of Interests in Global
Securities. In connection with all transfers and exchanges of
interests in Global Securities (other than transfers of interests in a
Global Security to Persons who take delivery thereof in the form of an
interest in the same Global Security), the transferor of such interest
must deliver to the Registrar (1) instructions given in accordance
with the Applicable Procedures from a Participant or an indirect
Participant directing DTC to credit or cause to be credited an
interest in the specified Global Security in an amount equal to the
interest to be transferred or exchanged, (2) a written order given in
accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase
and (3) instructions given by the Holder of the Global Security to
effect the transfer referred to in (1) and (2) above.
(ii) Transfer of Interests in the Same Initial Global
Security. Interests in any Initial Global Security may be transferred
to Persons who take delivery thereof in the form of an interest in
the same Initial Global Security in accordance with the transfer
restrictions set forth in Section 2.06(f) hereof.
(iii) Transfer of Interests to Another Initial Global
Security. Interests in any Initial Global Security may be transferred
to Persons who take delivery thereof in the form of an interest in
another Initial Global Security if the Registrar receives the
following:
(A) (A)if the transferee will take delivery in the
form of an interest in the 144A Global Security, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item 1 thereof; or
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(B) (B)if the transferee will take delivery in the
form of an interest in the Regulation S Global Security,
then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item 2
thereof.
(iv) Transfer and Exchange of Interests in Initial Global
Security for Interests in an Unrestricted Global Security. Interests
in any Initial Global Security may be exchanged by the holder thereof
for an interest in the Unrestricted Global Security or transferred to
a Person who takes delivery thereof in the form of an interest in the
Unrestricted Global Security if:
(A) such exchange or transfer is effected pursuant
to the Exchange Registration Statement in accordance with
the Registration Rights Agreement;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement; or
(C) the Registrar receives the following:
(1) if the holder of such an interest in an Initial
Global Security proposes to exchange it for an interest in
the Unrestricted Global Security, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item 1(a) thereof;
(2) if the holder of such an interest in an Initial
Global Security proposes to transfer it to a Person who
shall take delivery thereof in the form of an interest in an
Unrestricted Global Security, a certificate in the form of
Exhibit B hereto, including the certification in item 4
thereof; and
(3) in each such case set forth in this paragraph
(C), an Opinion of Counsel in form reasonably acceptable to
the Company, to the effect that such exchange or transfer is
in compliance with the Securities Act and that the
restrictions on transfer contained herein and in Section
2.06(f) hereof are not required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a
time when an Unrestricted Global Security has not yet been issued, the
Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.02, the Trustee shall authenticate one or
more Unrestricted Global Securities in an aggregate principal amount
equal to
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the principal amount of interests in the Initial Global Security
transferred pursuant to paragraph (B) above.
(v) Notation by the Trustee of Transfer of Interests
Among Global Securities. Upon satisfaction of the requirements for
transfer of interests in Global Securities pursuant to clauses (iii)
or (iv) above, the Trustee, as Registrar, shall reduce or cause to be
reduced the aggregate principal amount of the relevant Global Security
from which the interests are being transferred, and increase or cause
to be increased the aggregate principal amount of the Global Security
to which the interests are being transferred, in each case, by the
principal amount so transferred and shall direct DTC to make
corresponding adjustments in its book-entry system. No transfer of
interests of a Global Security shall be effected until, and any
transferee pursuant thereto shall succeed to the rights of a holder of
such interests only when, the Registrar has made appropriate
adjustments to the applicable Global Security in accordance with this
paragraph.
(c) Transfer or Exchange of Physical Securities for
Interests in a Global Security.
(i) If any Holder of Physical Securities required to
contain the Securities Act Legend proposes to exchange such Securities
for an interest in a Global Security or to transfer such Physical
Securities to a Person who takes delivery thereof in the form of an
interest in a Global Security, then, upon receipt by the Registrar of
the following documentation (all of which may be submitted by
facsimile):
(A) if the Holder of such Physical Registered
Securities proposes to exchange such Securities for an
interest in an Initial Global Security, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item 2 thereof;
(B) if such Physical Securities are being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item 1
thereof; or
(C) if such Physical Securities are being
transferred to a Non-U.S. Person (as defined in Regulation
S) in an offshore transaction in accordance with Rule 904
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications item
2 thereof,
the Trustee shall cancel the Physical Securities, increase or cause to
be increased the aggregate principal amount of,
-27-
in the case of clause (B) above, the 144A Global Security, in the
case of clause (C) above, the Regulation S Global Security, and
direct DTC to make a corresponding increase in its book-entry system.
(ii) A Holder of Physical Securities required to contain
the Securities Act Legend may exchange such Securities for an interest
in the Unrestricted Global Security or transfer such Restricted
Physical Securities to a Person who takes delivery thereof in the form
of an interest in the Unrestricted Global Security only:
(A) if such exchange or transfer is effected
pursuant to the Exchange Registration Statement in
accordance with the Registration Rights Agreement;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) upon receipt by the Registrar of the following
documentation (all of which may be submitted by facsimile):
(1) if the Holder of such Physical
Securities proposes to exchange such Securities for
an interest in the Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item 1(b)
thereof;
(2) if the Holder of such Registered
Securities proposes to transfer such Securities to
a Person who shall take delivery thereof in the
form of an interest in the Unrestricted Global
Security, a certificate in the form of Exhibit B
hereto, including the certifications in item 4
thereof; and
(3) in each such case set forth in this
paragraph (C), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance
with the Securities Act and that the restrictions
on transfer contained herein and in Section 2.06(f)
hereof are not required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph
(B) above at a time when an Unrestricted Global Security has
not yet been issued, the Company shall issue and, upon
receipt of an authentication order in accordance with Section
2.02, the Trustee shall authenticate one or more Unrestricted
Global
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Securities in an aggregate principal amount equal
to the principal amount of Physical Securities
transferred pursuant to paragraph (B) above.
(d) Transfer and Exchange of Physical Securities.
(i) Transfer of a Physical Security to Another
Physical Security. Following the occurrence of one or more of the
events specified in Section 2.06(a), a Physical Security may be
transferred to Persons who take delivery thereof in the form of
another Physical Security if the Registrar receives the following:
(A) if the transfer is being effected pursuant to
and in accordance with Rule 144A, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item 3(a) thereof; or
(B) if the transfer is being effected pursuant to
and in accordance with Regulation S, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item 3(b) thereof.
(ii) Transfer and Exchange of Restricted Physical
Securities for Unrestricted Physical Securities. Following the
occurrence of one or more of the events specified in Section 2.06(a),
a Restricted Physical Security may be exchanged by the Holder thereof
for an Unrestricted Physical Security or transferred to a Person who
takes delivery thereof in the form of an Unrestricted Physical
Security if:
(A) such exchange or transfer is effected pursuant
to the Exchange Registration Statement in accordance with
the Registration Rights Agreement;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement; or
(C) the Registrar receives a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item 1(c) thereof and an Opinion of
Counsel in form reasonably acceptable to the Company, to the
effect that such exchange or transfer is in compliance with
the Securities Act and, that the restrictions on transfer
contained herein and in Section 2.06(f) hereof are not
required in order to maintain compliance with the Securities
Act.
(iii) Exchange of Physical Securities. When Physical
Securities are presented by a Holder to the Registrar with a request
to register the exchange of such Physical Securities
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for an equal principal amount of Physical Securities of other
authorized denominations, the Registrar shall make the exchange as
requested only if the Physical Securities are endorsed or accompanied
by a written instrument of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney duly
authorized in writing and shall be issued only in the name of such
Holder or its nominee. The Physical Securities issued in exchange for
Physical Securities shall bear the Securities Act Legend and shall be
subject to all restrictions on transfer contained herein in each case
to the same extent as the Physical Securities so exchanged.
(iv) Return of Physical Securities. In the event of a
transfer pursuant to clauses (i) or (ii) above and the Holder thereof
has delivered certificates representing an aggregate principal amount
of Securities in excess of that to be transferred, the Company shall
execute and the Trustee shall authenticate and make available for
delivery to the Holder of such Security, without service charge, a new
Physical Security or Securities of any authorized denomination
requested by the Holder, in an aggregate principal amount equal to the
portion of the Security not so transferred.
(e) Exchange Offer. Upon the occurrence of the Exchange Offer
(as defined in the Registration Rights Agreement) in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02, the Trustee shall
authenticate one or more Unrestricted Global Securities in an aggregate
principal amount equal to the principal amount of the interests in the Initial
Global Securities tendered for acceptance (and not withdrawn) by persons
participating therein. Concurrently with the issuance of such Securities, the
Trustee shall cause the aggregate principal amount of the applicable Initial
Global Securities to be reduced accordingly and direct DTC to make a
corresponding reduction in its book-entry system. The Trustee shall cancel any
Restricted Physical Certificates in accordance with Section 2.11 hereof.
In the case that one or more of the events specified in
Section 2.06(a) have occurred, upon the occurrence of such Exchange Offer, the
Company shall issue and, upon receipt of an authentication order in accordance
with Section 2.02, the Trustee shall authenticate Unrestricted Physical
Securities in an aggregate principal amount equal to the principal amount of
the Restricted Physical Securities tendered for acceptance by persons
participating therein.
(f) Legends. Each Initial Global Security and each Restricted
Physical Security shall bear the legend (the "Securities Act Legend") in
substantially the following form:
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"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE REOFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT OR (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(g) Global Security Legend. Each Global Security shall bear
a legend in substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO A NOMINEE OF DTC,
OR BY ANY SUCH NOMINEE OF DTC, OR BY DTC TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT 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
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OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
"TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE &
CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.06 OF THE INDENTURE."
(h) Cancellation and/or Adjustment of Global Securities. At
such time as all interests in the Global Securities have been exchanged for
Physical Securities, all Global Securities shall be returned to or retained and
canceled by the Trustee in accordance with Section 2.11 hereof. At any time
prior to such cancellation, if any interest in a Global Security is exchanged
for an interest in another Global Security or for Physical Securities, the
principal amount of Securities represented by such Global Security shall be
reduced accordingly and an endorsement shall be made on such Global Security,
by the Trustee to reflect such reduction.
(i) General Provisions Relating to All Transfers and
Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global
Securities and Physical Securities upon a written order signed by an
Officer of the Company or at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any stamp or transfer tax or
similar governmental charge payable in connection therewith (other
than any such stamp or transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.10, 3.06,
4.05, 4.14 and 10.05 hereof).
(iii) All Global Securities and Physical Securities issued
upon any registration of transfer or exchange of Global Securities or
Physical Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Securities or Physical Securities surrendered
upon such registration of transfer or exchange.
(iv) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Securities during a period
beginning at the opening of 15 Business Days before
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the day of any mailing of notice of redemption of Securities under
Section 3.02 and ending at the close of business on the day of such
mailing, (B) to register the transfer of or to exchange any Security
so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part or (C) to register the
transfer of or to exchange a Security between a record date and the
next succeeding Interest Payment Date.
(v) Prior to due presentment for the registration of a
transfer of any Security, the Trustee, any Agent and the Company may
deem and treat the Person in whose name any Security is registered as
the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Securities and for all
other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
(vi) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law with
respect to any transfers of any interest in any Security (including
any transfers between or among Participants or beneficial owners of
interests in any Global Security) or Physical Security other than to
reqire delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
SECTION 2.7. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if
the Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements are met. The Holder shall
provide an indemnity bond in an amount sufficient in the judgment of the
Company and the Trustee to protect the Company, the Trustee or any Agent from
any loss which any of them may suffer if a Security is replaced may be required
by the Trustee or the Company. The Company and the Trustee each may charge such
Holder for its expenses in replacing such Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.8. Outstanding Securities.
Securities outstanding at any time are all Securities that
have been authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Security does
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not cease to be outstanding because the Company or one of its Affiliates holds
the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a redemption date or Maturity
Date money sufficient to pay the principal of, and interest on Securities
payable on that date, then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.9. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company, any Subsidiary or any of their respective
Affiliates shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities that the Trustee actually knows are so owned shall
be so disregarded.
The Trustee may require an Officers' Certificate listing
securities owned by the Company, any Subsidiary or any of their respective
Affiliates.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges as definitive Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee and no one else shall cancel all Securities surrendered for
transfer, exchange, payment or cancellation. The Company may not issue new
Securities to replace, reissue or resell Securities which the Company has
redeemed, paid, purchased on the open market or otherwise, or otherwise
acquired or have been delivered to the Trustee for cancellation. The Trustee
(subject to the
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record-retention requirements of the Exchange Act) may, but shall not be
required to, destroy canceled Securities.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the
Securities, it shall pay the defaulted interest, plus any interest payable on
the defaulted interest pursuant to Section 4.01 hereof, to the persons who are
Securityholders on a subsequent special record date, and such term, as used in
this Section 2.12 with respect to the payment of any defaulted interest, shall
mean the fifteenth day next preceding the date fixed by the Company for the
payment of defaulted interest, whether or not such day is a Business Day. At
least 15 days before such special record date, the Company shall mail to each
Securityholder and to the Trustee a notice that states such special record
date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP or CINS Number.
The Company in issuing the Securities may use a "CUSIP" or
"CINS" number, and if so, such CUSIP or CINS number shall be included in
notices of redemption or exchange as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to
the correctness or accuracy of the CUSIP or CINS number printed in the notice
or on the Securities, and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company will promptly
notify the Trustee of any change in the CUSIP or CINS number.
SECTION 2.14. Payments of Interest.
The Holder of a Physical Security at the close of business on
the regular record date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding any transfer or exchange of such Physical Security subsequent
to the regular record date and prior to such Interest Payment Date, except if
and to the extent the Company shall default in the payment of the interest due
on such Interest Payment Date, in which case such defaulted interest shall be
paid in accordance with Section 2.12; and in the event of an exchange of a
Physical Security for a beneficial interest in any Global Security subsequent
to a regular record date or any special record date and prior to or on the
related Interest Payment Date or other payment date under Section 2.12, any
payment of the interest payable on such payment date with respect to any such
Physical Security shall be made to the Person in whose name such Physical
Security was registered on such record date. Payments of interest on the Global
Securities will be made on each Interest Payment Date to the Holder of the
Global Security on the record date with respect thereto; provided, however,
that, in the event of an exchange of all or a
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portion of a Global Security for a Physical Security subsequent to the regular
record date or any special record date and prior to or on the related Interest
Payment Date or other payment date under Section 2.12, any payment of interest
payable on such Interest Payment Date or other payment date with respect to
the Physical Security shall be made to the Holder of the Global Security as of
the applicable record date.
Subject to Section 4.01, interest shall be paid to DTC, with
respect to any Global Security held by DTC, on the applicable Interest Payment
Date in accordance with instructions received from DTC at least five Business
Days before the applicable Interest Payment Date.
ARTICLE III.
REDEMPTION
SECTION 3.1. Notices to Trustee.
If the Company elects to redeem Securities pursuant to
paragraph 5 of the Securities at the applicable redemption price set forth
thereon, it shall notify the Trustee in writing of the redemption date and the
principal amount of Securities to be redeemed.
The Company shall give the notice provided for in this
Section 3.01 at least 30 days before the redemption date (unless a shorter
notice shall be agreed to by the Trustee in writing) but not more than 60 days
before the redemption date, together with an Officers' Certificate stating that
such redemption will comply with the conditions contained herein.
SECTION 3.2. Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed
pursuant to paragraph 5 thereof, the Trustee shall select the Securities to be
redeemed pro rata or by lot or in such other manner as the Trustee shall deem
appropriate and fair. The Trustee shall make the selection from the Securities
then outstanding, subject to redemption and not previously called for
redemption. The Trustee may select for redemption portions (equal to $1,000 or
any integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption.
SECTION 3.3. Notice of Redemption.
At least 30 days but not more than 60 days before a
redemption date, the Company shall mail a notice of redemption by first class
mail to each Holder whose Securities are to be redeemed.
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The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the CUSIP number (subject to Section 2.13);
(4) the name and address of the Paying Agent to
which the Securities are to be surrendered for redemption;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(6) that, unless the Company defaults in making the
redemption payment, interest on Securities called for
redemption ceases to accrue on and after the redemption date
and the only remaining right of the Holders is to receive
payment of the redemption price upon surrender to the Paying
Agent; and
(7) if any Security is being redeemed in part, the
portion of the principal amount of such Security to be
redeemed and that, after the redemption date, upon surrender
of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion thereof will be
issued.
At the Company's request, the Trustee shall give the notice
of redemption on behalf of the Company, in the Company's name and at the
Company's expense.
SECTION 3.4. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued interest thereon to the redemption date, but
interest installments whose maturity is on or prior to such redemption date
shall be payable to the Holders of record at the close of business on the
relevant record dates referred to in the Securities. The Trustee shall not be
required to (i) issue, authenticate, register the transfer of or exchange any
Security during a period beginning 15 days before the date a notice of
redemption is mailed and ending at the close of business on the date the
redemption notice is mailed, or (ii) 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.
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SECTION 3.5. Deposit of Redemption Price.
On or prior to the redemption date, the Company shall deposit
with the Paying Agent money sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on that date other than
Securities or portions thereof called for redemption on that date which have
been delivered by the Company to the Trustee for cancellation.
SECTION 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Trustee shall authenticate for the Holder a new Security equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
SECTION 4.1. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities in the manner provided in the Securities. An installment of
principal or interest shall be considered paid on the date due if the Trustee
or Paying Agent holds on that date money designated for and sufficient to pay
the installment in full and is not prohibited from paying such money to the
Holders of the Securities pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
same rate per annum borne by the Securities. The Company shall pay interest on
overdue installments of interest at the same rate per annum borne by the
Securities, to the extent lawful.
SECTION 4.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the address of the Trustee set forth in Section 13.02.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may
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from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The
City of New York, for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
SECTION 4.3. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into any transaction with any of
their respective Affiliates, including, without limitation, the purchase, sale,
lease or exchange of property, the rendering of any service, or the making of
any guarantee, loan, advance or Investment, unless the terms of such
transaction are at least as favorable as the terms that could be obtained at
such time by the Company or such Restricted Subsidiary, as the case may be, in
a comparable transaction made on an arms'-length basis with a Person that is
not such an Affiliate; provided, however, that (x) if the aggregate
consideration exceeds $1.0 million, the Company shall deliver an Officers'
Certificate to the Trustee stating that a majority of the Disinterested
Directors have determined, in their good faith judgment, that the terms of such
transaction are at least as favorable as the terms that could be obtained at
such time by the Company or such Restricted Subsidiary, as the case may be, in
a comparable transaction made on an arms'-length basis with a Person that is
not such an Affiliate and (y) if the aggregate consideration exceeds $5.0
million the Company shall also deliver to the Trustee, prior to the
consummation of the transaction, the favorable written opinion of a nationally
recognized accounting, appraisal or investment banking firm as to the fairness
of the transaction to the Company or such Restricted Subsidiary, from a
financial point of view; provided, however, that this clause (y) shall not
apply to (I) transactions relating to the assumption by Trace of liabilities of
the Company or any Restricted Subsidiary under extended service contracts (or
Trace's indemnification of the Company or any Restricted Subsidiary for
liabilities thereof) or (II) the writing of extended service contracts by Trace
to customers of the Company or any Restricted Subsidiary. The provisions of
this covenant shall not apply to (i) transactions permitted by Section 4.06,
(ii) reasonable fees and compensation paid to, and indemnity provided on behalf
of, officers, directors and employees of the Company or any Restricted
Subsidiary in the ordinary course of business and on ordinary business terms or
as determined in good faith by the Board of Directors of the Company and (iii)
transactions solely between or among the Company and/or one or more Restricted
Subsidiaries.
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SECTION 4.4. Limitation on Incurrence of Indebtedness.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur any Indebtedness, except:
(i) Indebtedness of the Company or any Restricted
Guarantor, if the Consolidated Cash Flow Ratio for the four full
fiscal quarters for which quarterly or annual financial statements are
available next preceding the Incurrence of such Indebtedness would be
greater than 2.0 to 1.0, and Permitted Refinancings thereof;
(ii) Indebtedness of the Company Incurred under the Senior
Credit Facility in an aggregate amount not to exceed $100.0 million
less any amount of Indebtedness repaid from the proceeds of Asset
Dispositions as provided under Section 4.05, which repayment results
in a permanent reduction of the commitments under the Senior Credit
Facility;
(iii) Indebtedness owed by the Company to any Restricted
Guarantor or Indebtedness owed by a Restricted Subsidiary to the
Company or a Restricted Guarantor; provided, however, upon either (x)
the transfer or other disposition by such Restricted Guarantor or the
Company of any Indebtedness so permitted under this clause (iii) to a
Person other than the Company or another Restricted Guarantor or (y)
such Restricted Guarantor's ceasing to be a Restricted Guarantor, the
provisions of this clause (iii) shall no longer be applicable to such
Indebtedness and such Indebtedness shall be deemed to have been
Incurred at the time of any such issuance, sale, transfer or other
disposition, as the case may be;
(iv) Interest Rate Obligations of the Company or any
Restricted Subsidiary relating to Indebtedness of the Company or such
Restricted Subsidiary permitted to be Incurred under this Indenture;
provided, however, that the notional amount of such Interest Rate
Obligations does not exceed the amount of the Indebtedness to which
such Interest Rate Obligations relate;
(v) Indebtedness of the Company or any Restricted
Subsidiary under Currency Agreements to the extent relating to (x)
Indebtedness of the Company or any Restricted Subsidiary permitted to
be Incurred under this Indenture and/or (y) obligations to purchase
assets, properties or services incurred in the ordinary course of
business of the Company or any Restricted Subsidiary; provided,
however, that such Currency Agreements do not increase the
Indebtedness or other obligations of the Company and the Restricted
Subsidiaries outstanding other than as a result of fluctuations in
foreign currency exchange rates or by
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reason of fees, indemnities or compensation payable thereunder;
(vi) Permitted Refinancings of any Indebtedness to the
extent outstanding on the Issue Date;
(vii) Indebtedness of the Company under the Securities
(including Unrestricted Securities), and Permitted Refinancings
thereof;
(viii) Floor Plan Notes;
(ix) Acquired Indebtedness and Permitted Refinancings
thereof;
(x) guarantees by the Company or any Restricted Guarantor of
Indebtedness of the Company or any Restricted Subsidiary otherwise
permitted to be Incurred under this Indenture;
(xi) Purchase Money Debt, and Permitted Refinancings
thereof, in an aggregate amount not to exceed $35.0 million at any
time outstanding;
(xii) Atlantic Finance Loans; and
(xiii) Indebtedness of the Company or any Restricted
Guarantor not otherwise permitted to be Incurred pursuant to clauses
(i) through (xii) above which, together with any other outstanding
Indebtedness Incurred pursuant to this clause (xiii) or Incurred
prior to the date hereof pursuant to Section 4.04(xiii) of the Series
A Indenture, does not exceed $20.0 million in the aggregate at any
time outstanding.
SECTION 4.5. Limitation on Certain Asset Dispositions.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, make one or more Asset Dispositions
unless: (i) the Company or such Restricted Subsidiary, as the case may be,
receives consideration for such Asset Disposition at least equal to the Fair
Market Value of the assets sold or disposed of; and (ii) not less than 80% of
the consideration for the disposition consists of (A) cash or Cash Equivalents
(including any held in escrow); (B) the assumption of Indebtedness (other than
non-recourse Indebtedness or any Subordinated Indebtedness) of the Company or
such Restricted Subsidiary or other obligations relating to such assets
(provided, however, that the Company and the Restricted Subsidiaries are
released from any liability for such Indebtedness); (C) Replacement Assets; or
(D) any combination of the foregoing clauses (A), (B) and (C). All Net
Available Proceeds of an Asset Disposition shall be applied within 360 days of
such Asset Disposition (i) to capital investments in
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properties or assets that will be used in a business of the Company and the
Restricted Subsidiaries conducted on the Issue Date or in a business
reasonably related thereto and/or (ii) to the permanent reduction and
prepayment of any Senior Debt of the Company then outstanding (including a
permanent reduction of commitments in respect thereof). Any Net Available
Proceeds from any Asset Disposition that are not applied as provided in the
immediately preceding sentence shall be used not later than the 361st day
after such Asset Disposition to make an Offer to Purchase outstanding
Securities at a purchase price in cash equal to 100% of their principal
amount, plus accrued and unpaid interest to the Purchase Date; provided,
however, that so long as the Series A Notes are outstanding and the Series A
Indenture so requires, the Company may purchase the Series A Notes before
purchasing the Securities pursuant to an Offer to Purchase under this Section
4.05. Notwithstanding the foregoing, the Company may defer making any Offer to
Purchase outstanding Securities until there are aggregate unutilized Net
Available Proceeds from Asset Dispositions otherwise subject to the two
immediately preceding sentences equal to or in excess of $10.0 million (at
which time, the entire unutilized Net Available Proceeds from Asset
Dispositions otherwise subject to the two immediately preceding sentences, and
not just the amount in excess of $10.0 million, shall be applied as required
pursuant to this paragraph). Any remaining Net Available Proceeds following
the completion of the required Offer to Purchase may be used by the Company
for any other purpose (subject to the other provisions of this Indenture) and
the amount of Net Available Proceeds then required to be otherwise applied in
accordance with this Section 4.05 shall be reset to zero, subject to any
subsequent Asset Disposition. These provisions will not apply to a transaction
consummated in compliance with Section 5.01.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and
Rule 14e-1 under, the Exchange Act.
SECTION 4.6. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend, or make any distribution
of any kind or character (whether in cash, property or securities), in
respect of any class of Capital Stock of the Company or any Restricted
Subsidiary (excluding any (x) dividends or distributions payable
solely in shares of Qualified Stock or in options, warrants or other
rights to acquire such shares, or (y) in the case of any Restricted
Subsidiary, dividends or distributions payable to the Company or a
Restricted Subsidiary),
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(ii) purchase, redeem or otherwise acquire or retire for
value any shares of Capital Stock of the Company or any Restricted
Subsidiary, any options, warrants or rights to purchase or acquire
such shares or any securities convertible or exchangeable into such
shares (excluding any such shares, options, warrants, rights or
securities that are owned by the Company or a Restricted Subsidiary),
(iii) make any Investment (other than a Permitted
Investment), or make any payment on a guarantee of any obligation of
any Person other than the Company or a Restricted Subsidiary, or
(iv) redeem, defease, repurchase, retire or otherwise
acquire or retire for value, prior to any scheduled maturity,
repayment or sinking fund payment, Subordinated Indebtedness (each of
the transactions described in clauses (i) through (iv) (other than
any exception to any such clause) being a "Restricted Payment")
if, at the time thereof:
(1) a Default shall have occurred and be
continuing, or
(2) upon giving effect to such Restricted Payment,
the Company could not Incur at least $1.00 of additional
Indebtedness pursuant to Section 4.04(i), or
(3) upon giving effect to such Restricted Payment,
the aggregate amount of all Restricted Payments (other than
any Restricted Payment described in clause (ii), (iii),
(iv), (v), (vi), (vii) or (viii) of the next paragraph)
(including the Fair Market Value of all Restricted Payments
not made in cash or Cash Equivalents, valued at the time of
each such Restricted Payment) declared or made on or after
the Issue Date exceeds the sum of the following (the
"Basket"):
(A) 50% of cumulative Consolidated Net
Income of the Company (or, in the case cumulative
Consolidated Net Income of the Company shall be
negative, less 100% of such deficit) for the period
(treated as one accounting period) from the
beginning of the fiscal quarter in which the Issue
Date occurs through the last day of the fiscal
quarter for which financial statements are
available; plus
(B) the aggregate net cash proceeds
received (other than from a Subsidiary of the
Company) after the Issue Date from the issuance of,
or equity contribution with respect to, shares of
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Qualified Stock and warrants, rights or options to
purchase or acquire such shares; plus
(C) the amount by which Indebtedness of
the Company or any Restricted Subsidiary (other
than Subordinated Indebtedness) is reduced on the
Company's balance sheet upon the conversion or
exchange (other than by a Subsidiary of the
Company) subsequent to the Issue Date into
Qualified Stock (less the amount of any cash, or
the Fair Market Value of any other property,
distributed by the Company or any Restricted
Subsidiary upon such conversion or exchange to the
extent such cash or other property reduces the
amount of such Indebtedness); plus
(D) the aggregate after-tax net proceeds
(consisting of cash and Cash Equivalents) from the
sale or other disposition of, or any distribution
in respect of, any Investment (other than any such
proceeds that the Company elects to be applied
toward the calculation of Net Investment under
clause (vii) or (viii) of the next paragraph)
constituting a Restricted Payment made after the
Issue Date; provided, however, that any gain (or
loss) on such sale or disposition or any such
distribution included in such after-tax net
proceeds shall not be included in determining
Consolidated Net Income for purposes of clause (a)
above; provided, further, that amounts included in
this clause (d) shall not exceed the Net Investment
by the Company in the Person (or its Subsidiaries)
in respect of which such Investment was made; plus
(E) $10.00 million.
(b) The foregoing provisions will not prohibit any of the
following:
(i) any dividend on any class of Capital Stock of the
Company or any Restricted Subsidiary paid within 60 days after the
declaration thereof if, on the date when the dividend was declared,
the Company or such Restricted Subsidiary, as the case may be, could
have paid such dividend in accordance with the provisions of this
Indenture;
(ii) the Refinancing of any Subordinated Indebtedness
otherwise permitted pursuant to Section 4.04(v);
(iii) the exchange or conversion of any Indebtedness of the
Company or any Restricted Subsidiary for or into Qualified Stock;
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(iv) any Restricted Payment made with the proceeds of a
substantially concurrent sale (other than to a Subsidiary of the
Company) for cash of Qualified Stock;
(v) any Investment to the extent that the consideration
therefor consists of Qualified Stock;
(vi) required or ratable payments to holders of minority
interests in any Restricted Subsidiary;
(vii) any Investments in Atlantic Finance or any of its
Subsidiaries; provided, however, that the Net Investment in respect
of Investments made pursuant to this clause (vii) or made prior to
the date hereof pursuant to Section 4.06(b)(vii) of the Series A
Indenture shall not exceed $25.0 million in the aggregate at any time
outstanding; and
(viii) Investments not otherwise permitted pursuant to
clauses (i) through (vii) above; provided, however, that the Net
Investment in respect of Investments made pursuant to this clause
(viii) or made prior to the date hereof pursuant to Section
4.06(b)(viii) of the Series A Indenture shall not exceed $20.0
million in the aggregate at any time outstanding;
provided, however, that (I) with respect to each of clauses (iv), (v), (vi),
(vii) and (viii) no Default shall have occurred and be continuing and (II) no
issuance of Qualified Stock pursuant to clause (ii), (iii), (iv), (v), (vi),
(vii) or (viii) shall increase the Basket.
(c) For purposes of this Section 4.06, (i) an "Investment"
shall be deemed to be made at the time any Restricted Subsidiary is designated
as an Unrestricted Subsidiary in an amount (proportionate to the Company's
equity interest in such Restricted Subsidiary) equal to the Fair Market Value
of such Restricted Subsidiary at such time; provided, however, that in the
event that any Subsidiary acquired after the Issue Date is designated an
Unrestricted Subsidiary, the amount of Investment deemed made at such time
shall be equal to the Net Investment of the Company and the Restricted
Subsidiaries in such Restricted Subsidiary at such time; (ii) upon the
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the
Basket shall be increased by the amount (proportionate to the Company's equity
interest in such Unrestricted Subsidiary) equal to the lesser of (x) the Fair
Market Value of such Unrestricted Subsidiary at the time of such redesignation
and (y) the Net Investment of the Company and the Restricted Subsidiaries in
such Unrestricted Subsidiary; provided, however, that in the event that any
Subsidiary acquired after the Issue Date is redesignated a Restricted
Subsidiary, the amount of such increase shall be equal to the Net Investment of
the Company and the Restricted Subsidiaries in such Unrestricted Subsidiary at
such time; and (iii) an "Investment" shall be deemed to be made at the time
that
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the ownership or voting power of the Company and the Restricted Subsidiaries
in any Restricted Subsidiary is reduced to below majority (but greater than
zero) in an amount equal to the Fair Market Value of such former Restricted
Subsidiary at such time multiplied by the percentage ownership or voting power
(whichever is less) of the Company and the Restricted Subsidiaries in such
former Restricted Subsidiary; provided, however, that in the event that the
ownership or voting power of any Subsidiary acquired after the Issue Date is
so reduced, the amount of Investment deemed made at such time shall be equal
to the Net Investment of the Company and the Restricted Subsidiaries in such
former Restricted Subsidiary at such time. Notwithstanding the foregoing,
Atlantic Finance and its Subsidiaries shall be designated Unrestricted
Subsidiaries as of the Issue Date and such designation shall not be deemed an
Investment.
SECTION 4.7. Corporate Existence.
Subject to Article Five, the Company shall do or shall cause
to be done all things necessary to preserve and keep in full force and effect
its corporate existence and the corporate, partnership or other existence of
each of its Subsidiaries in accordance with the respective organizational
documents of each such Subsidiary and the rights (charter and statutory) and
material franchises of the Company and its Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right or franchise,
or the corporate existence of any Subsidiary, if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not, and will not be, adverse in any
material respect to the Holders; provided, further, however, that a
determination of the Board of Directors of the Company shall not be required in
the event of a merger of one or more Wholly Owned Subsidiaries with or into
another Wholly Owned Subsidiary or another Person, if the surviving Person is a
Wholly Owned Subsidiary organized under the laws of the United States or a
State thereof or of the District of Columbia.
SECTION 4.8. 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, all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
of its Subsidiaries or upon the income, profits or property of the Company or
any of its Subsidiaries; 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 or where the failure to
effect such payment is not adverse in any material respect to the Holders.
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SECTION 4.9. Notice of Defaults.
Within five days after becoming aware of any Default, if such
Default is then continuing, the Company shall promptly deliver an Officers'
Certificate to the Trustee specifying the details of such Default and the
action which the Company proposes to take with respect thereto.
SECTION 4.10. Maintenance of Properties.
The Company shall cause all material properties owned by or
leased to it or any of its Subsidiaries and used or useful in the conduct of
its business or the business of any of its Subsidiaries to be maintained and
kept in normal condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 4.10 shall prevent the Company or any of
its Subsidiaries from discontinuing the use, operation or maintenance of any of
such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors or of the board of
directors of the Subsidiary concerned, or of an officer (or other agent
employed by the Company or of any of its Subsidiaries) of the Company or such
Subsidiary having managerial responsibility for any such property, desirable in
the conduct of the business of the Company or any of its Subsidiaries, and if
such discontinuance or disposal is not adverse in any material respect to the
Holders.
SECTION 4.11. Compliance Certificate.
The Company shall deliver to the Trustee within 45 days after
the end of each of the first three fiscal quarters of the Company and within 90
days after the close of each fiscal year a certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
stating that a review of the activities of the Company has been made under the
supervision of the signing officers with a view to determining whether a
Default has occurred and whether or not the signers know of any Default by the
Company that occurred during such fiscal quarter or fiscal year. If they do
know of such a Default, the certificate shall describe all such Defaults, their
status and the action the Company is taking or proposes to take with respect
thereto. The first certificate to be delivered by the Company pursuant to this
Section 4.11 shall be for the fiscal quarter ending December 31, 1997.
SECTION 4.12. Provision of Financial Information.
Whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provision thereto,
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the Company shall file with the Commission the annual reports, quarterly
reports and other documents which the Company would have been required to file
with the Commission pursuant to such Section 13(a) or 15(d) or any successor
provision thereto if the Company were so required, such documents to 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 required. The Company shall also in any event
(a) within 15 days of each Required Filing Date (i) transmit by mail to all
Holders of Securities as their names and addresses appear in the Security
Register, without cost to such Holders, and (ii) file with the Trustee, copies
of such annual reports, quarterly reports and other documents which the
Company is required to file with the Commission pursuant to the foregoing
sentence, and (b) if, notwithstanding the preceding sentence, filing such
documents by the Company with the Commission is not permitted under the
Exchange Act, promptly upon written request supply copies of such documents to
any prospective holder of Securities.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law, which would prohibit or forgive the Company from
paying all or any portion of the principal of and/or interest on the Securities
as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Indenture;
and (to the extent that it may lawfully do so) the Company hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall
not hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.14. Change of Control.
Within 30 days following a Change of Control, the Company
will commence an Offer to Purchase all outstanding Securities at a purchase
price in cash equal to 101% of their principal amount, plus accrued and unpaid
interest to the Purchase Date. Such Offer to Purchase will be consummated not
earlier than 30 days and not later than 60 days after the commencement thereof.
Each Holder shall be entitled to tender
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all or any portion of the Securities owned by such Holder pursuant to the
Offer to Purchase, subject to the requirement that any portion of a Security
tendered must bear an integral multiple of $1,000 principal amount.
A "Change of Control" will be deemed to have occurred in the
event that (whether or not otherwise permitted by this Indenture) after the
Issue Date (a) any transaction (including, without limitation, any merger or
consolidation) shall be consummated after which any Person or any Persons
acting together that would constitute a group (for purposes of Section 13(d) of
the Exchange Act, or any successor provision thereto) (a "Group"), together
with any Affiliates, other than Permitted Holders, shall "beneficially own" (as
defined in Rule 13d-3 under the Exchange Act, or any successor provision
thereto) at least (x) 50% of the voting power of the outstanding Voting Stock
of the Company or (y) 40% of the voting power of the Voting Stock of the
Company, and the Permitted Holders own in the aggregate less than such Person
or Group (in doing the "own less than" comparison in this clause (ii), the
holdings of the Permitted Holders who are members of the new Group shall not be
counted in the voting power of such new Group); (b) (x) the Company or any
Restricted Subsidiary sells, leases or otherwise transfers all or substantially
all of the assets of the Company and the Restricted Subsidiaries, taken as a
whole, to any Person other than a Wholly Owned Subsidiary, or (y) the Company
consolidates with or merges with or into another Person or any Person
consolidates with, or merges with or into, the Company, in either case under
this clause (b), in one transaction or series of related transactions in which
immediately after the consummation thereof Persons owning a majority of the
voting power of the Voting Stock of the Company immediately prior to such
consummation shall cease to own a majority of the voting power of the Voting
Stock of the Company or the surviving or transferee entity if other than the
Company; (c) Continuing Directors cease to constitute at least a majority of
the Board of Directors of the Company; or (d) the stockholders of the Company
approve any plan or proposal for the liquidation or dissolution of the Company.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and
Rule 14e-1 under, the Exchange Act. The Company will not be required to make an
Offer to Purchase upon a Change of Control if a third party makes the Offer to
Purchase in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to an Offer to Purchase
made by the Company and purchases all Securities validly tendered and not
withdrawn under such Offer to Purchase.
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SECTION 4.15. Limitation on Senior Subordinated Indebtedness.
The Company (i) shall not Incur any Indebtedness that by its
terms (or by the terms of the agreement or instrument governing such
Indebtedness) is subordinate in right of payment to any other Indebtedness of
the Company unless such Indebtedness is also by its terms (or by the terms of
the agreement or instrument governing such Indebtedness) made expressly either
(x) pari passu in right of payment with the Securities or (y) subordinate in
right of payment to the Securities in the same manner and at least to the same
extent as the Securities are subordinate to Senior Debt of the Company, or (ii)
shall not permit any Guarantor to Incur any Indebtedness that by its terms (or
by the terms of the agreement or instrument governing such Indebtedness) is
subordinate in right of payment to any other Indebtedness of such Guarantor
unless such Indebtedness is also by its terms (or by the terms of the agreement
governing such Indebtedness) made expressly either (x) pari passu in right of
payment with the Guarantee of such Guarantor or (y) subordinate in right of
payment to the Guarantee of such Guarantor in the same manner and at least to
the same extent as the Guarantee of such Guarantor is subordinate to Senior
Debt of such Guarantor.
SECTION 4.16. Limitation on Restrictions Affecting
Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary (other than a Restricted Guarantor) to, directly or indirectly,
create or otherwise cause or suffer to exist any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to (i) pay dividends or
make any other distributions in respect of its Capital Stock or pay any
Indebtedness or other obligation owed to the Company or any Restricted
Subsidiary, (ii) make loans or advances to, or guarantee any Indebtedness of,
the Company or any Restricted Subsidiary or (iii) transfer any of its property
or assets to the Company or any Restricted Subsidiary, except for (a) any
encumbrance or restriction existing under or by reason of any agreement in
effect on the Issue Date (including the Senior Credit Facility) as any such
agreement is in effect on such date or as such agreement is amended thereafter
but only if such encumbrance or restriction is no more restrictive than in the
agreement being amended, (b) any encumbrance or restriction under any agreement
of or relating to such Restricted Subsidiary prior to the date on which such
Restricted Subsidiary was acquired by the Company and outstanding on such date
and not Incurred in anticipation or contemplation of becoming a Restricted
Subsidiary and provided such encumbrance or restriction shall not apply to any
assets of the Company or any Restricted Subsidiary other than the Restricted
Subsidiary so acquired or its assets, (c) customary provisions contained in an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of a Restricted Subsidiary;
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provided, however, that such encumbrance or restriction is applicable only to
such Restricted Subsidiary or assets, (d) any encumbrance or restriction
existing under or by reason of applicable law, (e) customary provisions
restricting subletting or assignment of any lease governing any leasehold
interest of any Restricted Subsidiary, (f) covenants in franchise agreements
with car manufacturers customary for franchise agreements in the automobile
retailing industry, (g) covenants in purchase money obligations for property
restricting transfer of such property, (h) covenants in security agreements
securing Indebtedness of a Restricted Subsidiary (to the extent that such Liens
were otherwise incurred in accordance with Section 4.17) that restrict the
transfer of property subject to such agreements and (i) customary covenants in
Floor Plan Notes.
SECTION 4.17. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, incur or suffer to exist any Lien on or with respect to any
property or assets of the Company or any Restricted Subsidiary owned on the
Issue Date or thereafter acquired or on the income or profits thereof to secure
Indebtedness, without making, or causing such Restricted Subsidiary to make,
effective provision for securing the Securities or the Guarantee of such
Restricted Subsidiary (and, if the Company shall so determine, any other
Indebtedness of the Company or such Restricted Subsidiary, including
Subordinated Indebtedness; provided, however, that Liens securing the
Securities and any Indebtedness pari passu with the Securities are senior to
such Liens securing such Subordinated Indebtedness) equally and ratably with
such Indebtedness or, in the event such Indebtedness is subordinate in right of
payment to the Securities or the Guarantee, prior to such Indebtedness, as to
such property or assets for so long as such Indebtedness shall be so secured.
The foregoing restrictions shall not apply to (i) Liens
existing on the Issue Date securing Indebtedness existing on the Issue Date;
(ii) Liens securing Senior Debt (including Liens securing Floor Plan Notes and
Indebtedness under the Senior Credit Facility) and any guarantees thereof to
the extent that the Indebtedness secured thereby is permitted to be incurred
pursuant to Section 4.04; (iii) Liens securing only the Securities and the
Guarantees, if any; (iv) Liens in favor of the Company or a Guarantor, if any;
(v) Liens to secure Indebtedness Incurred for the purpose of financing all or
any part of the purchase price or the cost of construction or improvement of
the property (or any other capital expenditure financing) subject to such
Liens; provided, however, that (a) the aggregate principal amount of any
Indebtedness secured by such a Lien does not exceed 100% of such purchase price
or cost, (b) such Lien does not extend to or cover any other property other
than such item of property and any improvements on such item, (c) the
Indebtedness secured by such Lien is Incurred by the Company within 180 days of
the acquisition, construction or improvement of such property
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and (d) the Incurrence of such Indebtedness is permitted pursuant to Section
4.04; (vi) Liens on property existing immediately prior to the time of
acquisition thereof (and not created in anticipation or contemplation of the
financing of such acquisition); (vii) Liens on property of a Person existing
at the time such Person is acquired or merged with or into or consolidated
with the Company or any such Restricted Subsidiary (and not created in
anticipation or contemplation thereof); (viii) Liens to secure Indebtedness
Incurred to Refinance, in whole or in part, any Indebtedness secured by Liens
referred to in the foregoing clauses (i)-(vii) so long as such Liens do not
extend to any property other than the property securing the Indebtedness being
Refinanced and the principal amount of Indebtedness so secured is not
increased except for the amount of any premium required to be paid in
connection with such Refinancing pursuant to the terms of the Indebtedness
Refinanced or the amount of any premium reasonably determined by the Company
as necessary to accomplish such Refinancing by means of a tender offer,
exchange offer or privately negotiated repurchase, plus the expenses of the
issuer of such Indebtedness reasonably incurred in connection with such
Refinancing; and (viii) Liens in favor of the Trustee as provided for in this
Indenture on money or property held or collected by the Trustee in its
capacity as Trustee.
SECTION 4.18. Subsidiary Guarantees.
The Company shall not permit any Subsidiary to become an
obligor (including as guarantor) under, or in respect of, the Senior Credit
Facility without causing such Subsidiary to become a Guarantor. Any such
Subsidiary shall (a) execute and deliver a supplemental indenture in form
reasonably satisfactory to the Trustee pursuant to which such Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Securities
and this Indenture on the terms set forth in Articles Eleven and Twelve and (b)
deliver to the Trustee an Opinion of Counsel that such supplemental indenture
has been duly authorized, executed and delivered by such Subsidiary and
constitutes a valid and legally binding and enforceable obligation of such
Subsidiary (subject, in the case of enforceability, to customary bankruptcy,
insolvency, fraudulent conveyance and similar exceptions).
Any Subsidiary of the Company that ceases to be an obligor
(including as guarantor) under, or in respect of, the Senior Credit Facility
shall be released from its Guarantee upon delivery of an Officers' Certificate
to the Trustee certifying to such effect.
The Company may, at its option, cause any of its Subsidiaries
to be a Guarantor.
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ARTICLE V.
MERGERS; SUCCESSOR CORPORATION
SECTION 5.1. Restriction on Mergers, Consolidations and
Certain Sales of Assets.
The Company will not consolidate or merge with or into any
Person, or sell, assign, lease, convey or otherwise dispose of (or cause or
permit any Restricted Subsidiary to sell, assign, lease, convey or otherwise
dispose of (however effected, including, without limitation, by merger or
consolidation)) all or substantially all of the Company's assets (determined on
a consolidated basis for the Company and the Restricted Subsidiaries), whether
as an entirety or substantially an entirety in one transaction or a series of
related transactions, including by way of liquidation or dissolution, to any
Person unless, in each such case: (i) the entity formed by or surviving any
such consolidation or merger (if other than the Company or such Restricted
Subsidiary, as the case may be), or to which such sale, assignment, lease,
conveyance or other disposition shall have been made (the "Surviving Entity"),
is a corporation organized and existing under the laws of the United States,
any state thereof or the District of Columbia; (ii) the Surviving Entity
assumes by supplemental indenture all of the obligations of the Company on the
Securities and under the Indenture and the Registration Rights Agreement (upon
which assumption the Company will be discharged of any and all obligations on
the Securities and under this Indenture and the Registration Rights Agreement);
(iii) immediately after giving effect to such transaction and the use of any
net proceeds therefrom on a pro forma basis, the Company or the Surviving
Entity, as the case may be, (A) shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of the Company immediately prior to
such transaction and (B) could Incur at least $1.00 of additional Indebtedness
pursuant to Section 4.04(i); (iv) immediately before and after giving effect to
such transaction and treating any Indebtedness that becomes an obligation of
the Company or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Company or such Restricted Subsidiary, as the case
may be, at the time of the transaction, no Default shall have occurred and be
continuing; and (v) if, as a result of any such transaction, property or assets
of the Company or a Restricted Subsidiary would become subject to a Lien not
excepted from Section 4.17, the Company, Restricted Subsidiary or the Surviving
Entity, as the case may be, shall have secured the Securities or its Guarantee,
as applicable, as required by Section 4.17. The provisions of this Section 5.01
shall not apply to any merger of a Restricted Subsidiary with or into the
Company or a Wholly Owned Subsidiary or any transaction pursuant to which a
Guarantor is to be released in accordance with the terms of its Guarantee and
this Indenture in connection with any transaction complying with Section 4.05.
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SECTION 5.1. Successor Corporation Substituted.
Upon the execution of a supplemental indenture by the
Surviving Person in form and substance satisfactory to the Trustee (as
evidenced by the Trustee's execution thereof) in accordance with Section 5.01,
the Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of and shall assume all obligations of, the Company or
such Subsidiary, as the case may be, under this Indenture, the Registration
Rights Agreement and the Securities or the Guarantees, as the case may be, with
the same effect as if such Surviving Person had been named as the Company or
such Subsidiary, as the case may be, herein and therein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture, the Registration Rights
Agreement and the Securities or the Guarantees, as the case may be.
ARTICLE VI.
DEFAULT AND REMEDIES
SECTION 6.1. Events of Default.
An "Event of Default" occurs if:
(a) the Company fails to pay principal of any Security when
due (whether or not prohibited by Article Eight or Twelve);
(b) the Company fails to pay any interest on any Security
when due, continued for 30 days (whether or not prohibited by Article Eight or
Twelve);
(c) the Company defaults in the payment of principal of and
interest on Securities required to be purchased pursuant to an Offer to
Purchase under Sections 4.05 or 4.14 hereof when due and payable (whether or
not prohibited by Article Eight or Twelve);
(d) the Company fails to perform or comply with any of the
provisions of Section 5.01;
(e) the Company fails to perform any other covenant or
agreement of the Company under the Indenture or the Securities continued for
60 days after written notice to the Company by the Trustee or holders of at
least 25% in aggregate principal amount of outstanding Securities;
(f) the Company defaults under the terms of one or more
instruments evidencing or securing Indebtedness of the Company or any
Restricted Subsidiary having an outstanding principal amount of $10.0 million
or more individually or in the aggregate that has resulted in the acceleration
of the payment of
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such Indebtedness or failure to pay principal when due at the stated final
maturity of any such Indebtedness;
(g) the rendering of a final judgment or judgments (not
subject to appeal) against the Company or any Restricted Subsidiary in an
amount of $10.0 million or more which remains undischarged or unstayed for a
period of 60 days after the date on which the right to appeal has expired;
(h) the Company or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding,
(2) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(3) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(4) makes a general assignment for the benefit of
its creditors;
(i) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(1) is for relief against the Company or any
Restricted Subsidiary in an involuntary case or proceeding,
(2) appoints a Custodian of the Company or any
Restricted Subsidiary or for all or substantially all of its
property, or
(3) orders the liquidation of the Company or any
Restricted Subsidiary,
(4) and in each case the order or decree remains
unstayed and in effect for 60 days; provided, however, that
if the entry of such order or decree is appealed and
dismissed on appeal then the Event of Default hereunder by
reason of the entry of such order or decree shall be deemed
to have been cured; or
(j) any Guarantee, ceases to be in full force and effect or
is declared null and void and unenforceable or is found to be invalid or any
Guarantor denies its liability under its Guarantee (other than by reason of a
release of such Guarantor from its Guarantee in accordance with the terms of
this Indenture and such Guarantee).
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal, state or foreign law for the relief of debtors. The term
"Custodian" means any receiver, trustee,
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assignee, liquidator, sequestrator or similar official under any Bankruptcy
Law.
SECTION 6.2. Acceleration.
If an Event of Default (other than an Event of Default with
respect to the Company specified in Section 6.01(h) or (i)) shall occur and be
continuing, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the outstanding Securities may accelerate the maturity of
all Securities; provided, however, that after such acceleration, but before a
judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of outstanding Securities may rescind and annul such
acceleration if all Defaults, other than the non-payment of accelerated
principal, have been cured or waived as provided in this Indenture; provided,
however, that so long as the Senior Credit Facility shall be in full force and
effect, if an Event of Default shall have occurred and be continuing (other
than an Event of Default with respect to the Company specified in Section
6.01(h) or (i)), the Securities shall not become due and payable until the
earlier to occur of (x) five Business Days following delivery of a written
notice of such acceleration of the Securities to the agent under the Senior
Credit Facility and (y) the acceleration of any Indebtedness under the Senior
Credit Facility. If an Event of Default with respect to the Company specified
in Section 6.01(h) or (i) occurs, the outstanding Securities will ipso facto
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
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 of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy maturing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.4. Waiver of Past Default.
Subject to Sections 2.09, 6.07 and 10.02, prior to the
declaration of acceleration of the Securities, (i) the Holders of not less than
a majority in aggregate principal amount of the outstanding Securities by
written notice to the Trustee may waive an existing Default and its
consequences, except a Default in the
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payment of principal of or interest on any Security as specified in Section
6.01(a) or (b), a default arising from failure to effect an Offer to Purchase
required under Section 4.14 or a Default in respect of any term or provision
of this Indenture that may not be amended or modified without the consent of
each Holder affected as provided in Section 10.02 and (ii) the Holders of
three-fourths of the aggregate principal amount of Notes affected thereby, on
behalf of all Holders, may waive a default arising from failure to effect an
Offer to Purchase required under Section 4.14. The Company shall deliver to
the Trustee an Officers' Certificate stating that the requisite percentage of
Holders have consented to such waiver and attaching copies of such consents.
In case of any such waiver, the Company, the Trustee and the Holders shall be
restored to their former positions and rights hereunder and under the
Securities, respectively. This paragraph of this Section 6.04 shall be in lieu
of ss. 316(a)(1)(B) of the TIA and such ss. 316(a)(1)(B) of the TIA is hereby
expressly excluded from this Indenture and the Securities, as permitted by the
TIA.
Upon any such waiver, such Default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture and the Securities, but no such waiver
shall extend to any subsequent or other Default or impair any right consequent
thereon.
SECTION 6.5. Control by Majority.
Subject to Section 2.09, the Holders of a majority in
principal amount of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction. In the event the
Trustee takes any action or follows any direction pursuant to this Indenture,
the Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against any loss or expense caused by taking such action or
following such direction. This Section 6.05 shall be in lieu of ss.
316(a)(1)(A) of the TIA, and such ss. 316(a)(1)(A) of the TIA is hereby
expressly excluded from this Indenture and the Securities, as permitted by the
TIA.
SECTION 6.6. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to
this Indenture or the Securities unless:
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(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal
amount of the outstanding Securities make a written request to the
Trustee to pursue a remedy;
(3) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any
loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested,
the provision of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the outstanding Securities (excluding Affiliates
of the Company) do not give the Trustee a direction which, in the
opinion of the Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
such other Securityholder.
Section 6.06 limitations do not apply to a suit instituted by
a Holder of a Note for enforcement of payment of the principal or of interest
on such Security on or after the respective due dates therefor.
SECTION 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on the
Securities, on or after the respective due dates therefor, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Securities for the whole amount of
principal and accrued interest remaining unpaid, together with interest overdue
on principal and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per
annum borne by the Securities and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation,
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expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.9. 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
Securityholders 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,
and any Custodian in any such judicial proceedings 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
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent
and counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to
this Article Six, it shall pay out the money or property in the following
order:
First: to the Trustee for amounts due under Section 7.07;
Second: subject to Articles Eight and Twelve, to Holders for
amounts due and unpaid on the Securities for principal and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may
fix a record date and payment date for any payment to Securityholders pursuant
to this Section 6.10.
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SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 shall not apply to a suit by the
Trustee, a suit by a Holder or group of Holders of more than 10% in aggregate
principal amount of the outstanding Securities, or to any suit instituted by
any Holder for the enforcement or the payment of the principal or interest on
any Securities on or after the respective due dates therefor.
ARTICLE VII.
TRUSTEE
SECTION 7.1. Duties of Trustee.
(a) If a Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(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 conforming to the
requirements of this Indenture; provided, however, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee shall not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
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(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(2) The Trustee shall not be liable for any error
of judgment made in good faith by a Trust Officer, unless it
is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05.
(d) 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 to take or omit to take any
action under this Indenture or take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that repayment of
such funds is not assured to it or it does not receive an indemnity
satisfactory to it in its sole discretion against such risk, liability, loss,
fee or expense which might be incurred by it in compliance with such request or
direction.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this
Section 7.01.
(f) The Trustee shall not be liable for interest on any
money or assets received by it except as the Trustee may agree in writing with
the Company. Money or assets held in trust by the Trustee need not be
segregated from other funds or assets except to the extent required by law.
SECTION 7.2. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting on any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel of its selection and may require an Officers' Certificate
and an Opinion of Counsel, which shall conform to the provisions of Section
13.05. The Trustee shall not be liable for any action it takes, suffers or
omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through attorneys and agents of its
selection and shall not be responsible for the misconduct
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or negligence of any agent or attorney (other than an agent who is an employee
of the Trustee) 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 reasonably believes to be authorized
or within its rights or powers conferred upon it by this Indenture.
(e) 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 Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
(f) Provided the Trustee acts in good faith, the Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole cost of
the Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(g) The Trustee shall not be deemed to have notice of any
Default unless a Trust Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture.
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. However, the Trustee is
subject to Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any statement of the
Company in this Indenture or any document issued in connection with the sale of
Securities or
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any statement in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.5. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of any
Default with respect to the Securities, give the Holders notice of all uncured
Defaults known to it; provided, however, that, except in the case of an Event
of Default or a Default in payment with respect to the Securities or a Default
in complying with Section 5.01, the Trustee shall be protected in withholding
such notice if and so long as the Board of Directors of the Trustee, the
executive committee or a trust committee of directors or responsible officers
of the Trustee in good faith determine that the withholding of such notice is
in the interest of the Holders.
SECTION 7.6. Reports by Trustee to Holders.
If required by TIA ss.313(a), within 60 days after each
July 1 beginning with the July 1 following the date of this Indenture, the
Trustee shall mail to each Securityholder a report dated as of such July 1 that
complies with TIA ss.313(a). The Trustee also shall comply with TIA ss.313(b),
(c) and (d).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the Commission, the Company and each stock
exchange, if any, on which the Securities are listed in accordance with TIA ss.
313(d).
The Company shall promptly notify the Trustee in writing if
the Securities become listed on any securities exchange or of any delisting
therefrom.
SECTION 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for its services. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances (including reasonable fees, disbursements and expenses of its
agents and counsel) incurred or made by it in addition to the compensation for
its services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, disbursements and expenses of the
Trustee's agents, accountants, experts and counsel and any taxes or other
expenses incurred by a trust created pursuant to Section 9.01 hereof.
The Company shall indemnify the Trustee or any predecessor
Trustee and their agents for, and hold them harmless
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against any and all loss, damage, claims, liability or expense, including
taxes (other than franchise taxes imposed on the Trustee and taxes based upon,
measured by or determined by the income of the Trustee), arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of enforcing this Indenture
against the Company (including Section 7.07) and of defending itself against
any claim (whether asserted by any Securityholder or the Company or any other
person) or liability in connection with the exercise or performance of any of
their powers or duties hereunder, except to the extent that such loss, damage,
claim, liability or expense is due to their own negligence or bad faith. The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. However, the failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations
hereunder (unless and only to the extent that such failure results in the loss
or compromise of any rights or defenses). The Company shall defend the claim
and the Trustee shall cooperate in the defense (and may employ its own
counsel) at the Company's expense; provided, however, that the Company's
reimbursement obligation with respect to counsel employed by the Trustee will
be limited to the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its written consent, which
consent shall not be unreasonably withheld. The Company need not reimburse any
expense or indemnify against any loss or liability incurred by the Trustee as
a result of the violation of this Indenture by the Trustee.
To the extent permitted by the Senior Credit Facility, to
secure the Company's payment obligations in this Section 7.07, the Trustee
shall have a Lien prior to the Securities against all money or property held or
collected by the Trustee or any predecessor Trustee, in their capacity as
Trustee, except money or property held in trust to pay principal of or interest
on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(h) or (i) occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the Holders
in a proceeding under any Bankruptcy Law and are intended to constitute
expenses of administration under any Bankruptcy Law. The Company's obligations
under this Section 7.07 and any claim arising hereunder shall survive the
resignation or removal of any Trustee, the discharge of the Company's
obligations pursuant to Article Nine and any rejection or termination under any
Bankruptcy Law.
The provisions of this Section 7.07 shall survive the
termination of this Indenture.
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SECTION 7.8. Replacement of Trustee.
The Trustee may resign at any time by so notifying the
Company in writing. The Holders of a majority in aggregate principal amount of
the outstanding Securities may remove the Trustee by so notifying the Trustee
and the Company in writing and may appoint a successor Trustee with the
Company's 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 under any Bankruptcy Law;
(3) a custodian or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties
of the Trustee under this Indenture. A successor Trustee shall mail notice of
its succession to each Securityholder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in aggregate principal amount of the
outstanding Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
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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 business to, another
corporation or banking corporation, the resulting, surviving or transferee
corporation or banking corporation without any further act shall be the
successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be
eligible to act as Trustee under TIA xx.xx. 310(a)(1) and 310(a)(5). The
Trustee (or in the case of a corporation included in a bank holding company,
the related bank holding company) shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report of
condition. If the Trustee has or shall acquire any "conflicting interest"
within the meaning of TIA ss. 310(b), the Trustee and the Company shall comply
with the provisions of TIA ss. 310(b); provided, however, that there shall be
excluded from the operation of TIA ss. 310(b)(1) any indenture or indentures
under which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA ss. 310(b)(1) are met. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
hereinbefore specified in this Article Seven.
SECTION 7.10.1. Preferential Collection of Claims Against
Company.
The Trustee shall comply with 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 VIII.
SUBORDINATION OF SECURITIES
SECTION 8.1. Securities Subordinated to Senior Debt.
The Company covenants and agrees, and the Trustee and each
Holder by acceptance of the Securities likewise covenant and agree, that all
Securities shall be issued subject to the provisions of this Article; and each
person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that all payments of the
principal of and interest on the Securities by the Company shall, to the extent
and in the manner set forth in this Article, be subordinated and junior in
right of payment to the prior payment in full of all Senior Debt of the
Company.
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SECTION 8.1.1. No Payment on Securities in Certain
Circumstances.
(a) No direct or indirect payment by or on behalf of the
Company of principal of or interest on the Securities (other than payments to
Holders from funds held in trust for the benefit of Holders pursuant to Section
9.01), whether pursuant to the terms of the Securities or upon acceleration or
otherwise, will be made if, at the time of such payment, there exists a default
in the payment of all or any portion of the obligations on any Designated
Senior Debt, whether at maturity, on account of mandatory redemption or
prepayment, acceleration or otherwise, and such default shall not have been
cured or waived. In addition, during the continuance of any non-payment default
or non-payment event of default with respect to any Designated Senior Debt
pursuant to which the maturity thereof may be accelerated, and upon receipt by
the Trustee of written notice (a " Payment Blockage Notice") from a holder or
holders of such Designated Senior Debt or the trustee or agent acting on behalf
of such Designated Senior Debt, then, unless and until such default or event of
default has been cured or waived or has ceased to exist or such Designated
Senior Debt has been discharged or repaid in full, or the requisite holders of
such Designated Senior Debt have otherwise agreed in writing, no payment or
distribution will be made by or on behalf of the Company on account of or with
respect to the Securities (except payments to Holders from funds held in trust
for the benefit of Holders pursuant to Section 9.01), during a period (a
"Payment Blockage Period") commencing on the date of receipt of such Payment
Blockage Notice by the Trustee and ending 179 days thereafter.
Notwithstanding anything herein to the contrary, (x) in no
event will a Payment Blockage Period extend beyond 179 days from the date the
Payment Blockage Notice in respect thereof was given and (y) there must be 180
days in any 365 day period during which no Payment Blockage Period is in
effect. Not more than one Payment Blockage Period may be commenced with respect
to the Securities during any period of 365 consecutive days. No default or
event of default that existed or was continuing on the date of commencement of
any Payment Blockage Period with respect to the Designated Senior Debt
initiating such Payment Blockage Period may be, or be made, the basis for the
commencement of any other Payment Blockage Period by the holder or holders of
such Designated Senior Debt or the trustee or agent acting on behalf of such
Designated Senior Debt, whether or not within a period of 365 consecutive days,
unless such default or event of default has been cured or waived for a period
of not less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by Section 8.02(a), such payment shall be held in trust for the
benefit of, and shall be paid over or
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delivered to, the holders of Designated Senior Debt or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Designated Senior Debt may have been issued, as their
respective interests may appear, but only to the extent that, upon notice from
the Trustee to the holders of Designated Senior Debt that such prohibited
payment has been made, the holders of the Designated Senior Debt (or their
representative or representatives or a trustee) notify the Trustee in writing
of the amounts then due and owing on the Designated Senior Debt, if any, and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Designated Senior Debt.
SECTION 8.2. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities
of the Company of any kind or character (whether in cash, property or
securities) upon any dissolution or winding up or total or partial liquidation
or reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or
to become due with respect to Senior Debt of the Company (including any
interest accruing subsequent to an event of bankruptcy or insolvency, whether
or not allowed or allowable thereunder) shall first be paid in full, or payment
provided for, before the Holders or the Trustee on their behalf shall be
entitled to receive any payment by the Company of the principal of or interest
on the Securities, or any payment to acquire any of the Securities for cash,
property or securities, or any distribu tion with respect to the Securities of
any cash, property or securities. Before any payment may be made by, or on
behalf of, the Company of the principal of or interest on the Securities upon
any such dissolution or winding up or liquidation or reorganization, any
payment or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Securities or the Trustee on their behalf would be entitled, but for the
subordination provisions of this Indenture, shall be made by the Company or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, directly to the holders of Senior Debt of
the Company (pro rata to such holders on the basis of the respective amounts of
Senior Debt held by such holders) or their representative(s) or to the
trustee(s) under any indenture pursuant to which any such Senior Debt may have
been issued as their respective interests may appear, to the extent necessary
to pay all such Senior Debt in full after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of such
Senior Debt.
(b) In the event that, notwithstanding the foregoing
provision prohibiting such payment or distribution, any payment or distribution
of assets or securities of the Company of any
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kind or character, whether in cash, property or securities, shall be received
by the Trustee or any Holder at a time when such payment or distribution is
prohibited by Section 8.03(a) and before all obligations in respect of Senior
Debt are paid in full, or payment provided for, such payment or distribution
shall be received and held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Debt or their respective
representative(s), or to the trustee(s) under any indenture pursuant to which
any of such Senior Debt may have been issued, as their respective interests
may appear, for application to the payment of Senior Debt remaining unpaid
until all such Senior Debt has been paid in full after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders
of such Senior Debt.
(c) The consolidation of the Company with, or the merger of
the Company with or into, another corporation or the liquidation or dissolution
of the Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided in Article Five shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
Five.
SECTION 8.3. Subrogation.
Upon the payment in full of all Senior Debt, or provision for
payment, the Holders shall be subrogated (equally and ratably with all pari
passu Indebtedness) to the rights of the holders of Senior Debt to receive
payments or distributions of cash, property or securities of the Company made
on such Senior Debt until the principal of and interest on the Securities shall
be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders or the Trustee on their behalf would be
entitled except for the provisions of this Article, and no payment over
pursuant to the provisions of this Article to the holders of Senior Debt by
Holders or the Trustee on their behalf shall, as between the Company, its
creditors other than holders of Senior Debt, and the Holders, be deemed to be a
payment by the Company to or on account of the Senior Debt. It is understood
that the provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders, on the one hand, and the
holders of the Senior Debt, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article shall have
been applied, pursuant to the provisions of this Article, to the payment of all
amounts payable under Senior Debt, then and in such case, the Holders shall be
entitled to receive from the holders of such Senior Debt any payments or
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distributions received by such holders of Senior Debt in excess of the amount
required to make payment in full, or provision for payment, of such Senior
Debt.
SECTION 8.4. Obligations of Company Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior Debt,
nor shall anything herein or therein prevent any Holder or the Trustee on their
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of the Senior Debt in respect of cash, property or securities of
the Company received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing
contained in this Article shall restrict the right of the Trustee or the
Holders to take any action to declare the Securities to be due and payable
prior to their stated maturity pursuant to Section 6.01 or to pursue any rights
or remedies hereunder; provided, however, that all Senior Debt then due and
payable shall first be paid in full before the Holders or the Trustee are
entitled to receive any direct or indirect payment from the Company of
principal of or interest on the Securities.
SECTION 8.5. Notice to Trustee.
The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making of any payment
to or by the Trustee in respect of the Securities pursuant to the provisions of
this Article. Failure to give such notice to the Trustee shall not affect the
subordination of the Securities to Senior Debt. The Trustee shall not be
charged with knowledge of the existence of any default or event of default with
respect to any Senior Debt or of any other facts which would prohibit the
making of any payment to or by the Trustee unless and until the Trustee shall
have received notice in writing to that effect signed by an Officer of the
Company, or by a holder of Senior Debt or trustee or agent therefor; and prior
to the receipt of any such written notice, the Trustee shall, subject to
Article Seven, be entitled to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section 8.06 at least three Business Days prior to the date upon which by
the terms of this Indenture any moneys shall become payable for any purpose
(including, without limitation, the payment of the principal of or interest on
any Security), then,
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regardless of anything herein to the contrary, the Trustee shall have full
power and authority to receive any moneys from the Company and to apply the
same to the purpose for which they were received, and shall not be affected by
any notice to the contrary which may be received by it on or after such prior
date. Nothing contained in this Section 8.06 shall limit the right of the
holders of Senior Debt to recover payments as contemplated by Section 8.02 or
8.03. The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself or itself to be a holder of any Senior
Debt (or a trustee on behalf of, or other representative of, such holder) to
establish that such notice has been given by a holder of such Senior Debt or a
trustee or representative on behalf of any such holder.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 8.5.1. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets or securities
referred to in this Article, the Trustee and the Holders of the Securities
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 8.6. Trustee's Relation to Senior Debt.
The Trustee and any Paying Agent shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee or any Paying Agent of any of its rights as such holder.
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With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt (except as provided in Section
8.03(b)). The Trustee shall not be charged with knowledge of the existence of
Senior Debt or of any facts that would prohibit any payment hereunder unless
the Trustee shall have received notice to that effect at the address of the
Trustee set forth in Section 13.02.
SECTION 8.7. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt
to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of
any knowledge thereof which any such holder may have or otherwise be charged
with. The provisions of this Article are intended to be for the benefit of, and
shall be enforceable directly by, the holders of Senior Debt.
SECTION 8.8. Securityholders Authorize Trustee To Effectuate
Subordination of Securities.
Each Holder of Securities by his acceptance of such
Securities authorizes and expressly directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article, and appoints the Trustee his attorney-in-fact for
such purposes, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the filing of a claim
for the unpaid balance of its or his Securities in the form required in those
proceedings.
SECTION 8.9. This Article Not to Prevent Events of Default.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article shall not
be construed as preventing the occurrence of an Event of Default specified in
Section 6.01(a), (b) or (c).
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SECTION 8.10. Trustee's Compensation Not Prejudiced.
Nothing in this Article shall apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
SECTION 8.11. No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 8.09,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do
any one or more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding or secured; (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (c) release any
Person liable in any manner for the collection of Senior Debt; and (d) exercise
or refrain from exercising any rights against the Company and any other Person.
SECTION 8.12. Subordination Provisions Not Applicable to
Money Held in Trust for Securityholders; Payments May Be Paid Prior to
Dissolution.
All money and United States Government Obligations deposited
in trust with the Trustee pursuant to and in accordance with Article Nine shall
be for the sole benefit of the Holders and shall not be subject to this Article
Eight.
Nothing contained in this Article or elsewhere in this
Indenture shall prevent (i) the Company, except under the conditions described
in Section 8.02, from making payments of principal of and interest on the
Securities, or from depositing with the Trustee any moneys for such payments or
from effecting a termination of the Company's and the Guarantors' obligations
under the Securities and this Indenture as provided in Article Nine, or (ii)
the application by the Trustee of any moneys deposited with it for the purpose
of making such payments of principal of and interest on the Securities, to the
holders entitled thereto unless at least three Business Days prior to the date
upon which such payment becomes due and payable, the Trustee shall have
received the written notice provided for in Section 8.02(b) or in Section 8.06.
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ARTICLE IX.
DISCHARGE OF INDENTURE
SECTION 9.1. Termination of Company's Obligations.
(a) Discharge. Subject to the provisions of Article Eight,
the Company may terminate its substantive obligations and the substantive
obligations of the Guarantors, if any, in respect of the Securities and the
Guarantees by delivering all outstanding Securities to the Trustee for
cancellation and paying all sums payable by the Company on account of principal
of and interest on all Securities or otherwise.
(b) Covenant Defeasance. In addition to the provisions of
Section 9.01(a), the Company may, provided that no Default has occurred and is
continuing or would arise therefrom (or, with respect to a Default specified in
Section 6.01(h) or (i), any time on or prior to the 91st calendar day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until after such 91st day)) and provided that no default under
any Senior Debt would result therefrom, terminate its substantive obligations
and the substantive obligations of the Guarantors, if any, in respect of the
Securities and the Guarantees (except for the Company's obligation to pay the
principal of and the interest on the Securities and such Guarantors' guarantee
thereof) by (i) depositing with the Trustee, under the terms of an irrevocable
trust agreement, money or direct non-callable obligations of the United States
of America for the payment of which its full faith and credit is pledged
("United States Government Obligations") sufficient (without reinvestment) to
pay all remaining indebtedness on the Securities to maturity or to redemption,
(ii) deliver ing to the Trustee either an Opinion of Counsel or a ruling
directed to the Trustee from the Internal Revenue Service to the effect that
the Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and termination of obligations, (iii)
delivering to the Trustee an Opinion of Counsel to the effect that the
Company's exercise of its option under this paragraph will not result in the
Company, the Trustee or the trust created by the Company's deposit of funds
pursuant to this provision becoming or being deemed to be an "investment
company" under the Investment Company Act of 1940, as amended, and (iv)
delivering to the Trustee an Officers' Certificate and an Opinion of Counsel
each stating that there has been compliance with all conditions precedent
provided for herein.
(c) Legal Defeasance. In addition to the provisions of
Section 9.01(a) and (b), the Company may, provided that no Default has occurred
and is continuing or would arise therefrom (or, with respect to a Default
specified in Section 6.01(h) or (i), any time on or prior to the 91st calendar
day after the date of such deposit (it being understood that this condition
shall
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not be deemed satisfied until after such 91st day)) and provided that no
default under any Senior Debt would result therefrom, terminate all of its
substantive obligations and all of the substantive obligations of the
Guarantors, if any, in respect of the Securities and the Guarantees (including
the Company's obligation to pay the principal of and interest on the
Securities and such Guarantors' guarantee thereof) by (i) depositing with the
Trustee, under the terms of an irrevocable trust agreement, money or United
States Government Obligations sufficient (without reinvestment) to pay all
remaining indebtedness on the Securities to maturity or to redemption, (ii)
delivering to the Trustee either a ruling directed to the Trustee from the
Internal Revenue Service to the effect that the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit and termination of obligations or an Opinion of Counsel based upon
such a ruling addressed to the Trustee or a change in the applicable Federal
tax law since the date of this Indenture, to such effect, (iii) delivering to
the Trustee an Opinion of Counsel to the effect that the Company's exercise of
its option under this paragraph will not result in the Company, the Trustee or
the trust created by the Company's deposit of funds pursuant to this provision
becoming or being deemed to be an "investment company" under the Investment
Company Act of 1940, as amended, and (iv) delivering to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that there has
been compliance with all conditions precedent provided for herein.
(d) Notwithstanding the foregoing paragraphs 9.01(b) and (c)
above, the Company's obligations contained in Sections 2.03, 2.05, 2.06, 2.07,
4.02, 7.07, 7.08, 9.03 and 9.04 shall survive until the Securities are no
longer outstanding. In addition, notwithstanding the foregoing paragraph
9.01(b), in that instance the Company's obligations contained in Section 4.01
shall also survive until the Securities are no longer outstanding. Thereafter
the Company's obligations in Section 7.07, 9.03 and 9.04 shall survive. The
Company may make an irrevocable deposit pursuant to this Section 9.01 only if
at such time it is not prohibited from doing so under the subordination
provisions of this Indenture and the Company has delivered to the Trustee and
any Paying Agent an Officers' Certificate to that effect. After such delivery
or irrevocable deposit and delivery of an Officers' Certificate and Opinion of
Counsel, the Trustee upon request of the Company shall acknowledge in writing
the discharge of the Company's and the Guarantors' (if any) obligations under
the Securities, the Guarantees and this Indenture other than those surviving
obligations specified in this paragraph (d).
SECTION 9.2. Application of Trust Money.
The Trustee shall hold in trust money or United States
Government Obligations deposited with it pursuant to Section 9.01, and shall
apply the deposited money and the money from United States Government
Obligations in accordance with this
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Indenture solely to the payment of principal of and interest on the
Securities. The Company shall indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the United States Government
Obligations deposited pursuant to Section 9.01 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 outstanding Securities.
SECTION 9.3. Repayment to Company.
Subject to Sections 7.07 and 9.01, the Trustee shall promptly
pay to the Company upon receipt by the Trustee of the Company's written request
accompanied by an Officers' Certificate any excess money held by it at any
time. The Trustee shall pay to the Company upon such request any money held by
it for the payment of principal or interest that remains unclaimed for two
years; provided, however, that the Trustee before being required to make any
payment may at the expense of the Company cause to be published once in a
newspaper of general circulation in The City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that, after
a date specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining
shall be repaid to the Company. After payment to the Company, Securityholders
entitled to money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person, and all
liability of the Trustee or Paying Agent with respect to such money shall
thereupon cease.
SECTION 9.4. Reinstatement.
If the Trustee is unable to apply any money or United States
Government Obligations in accordance with Section 9.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and the Guarantors'(if any) obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.01 until such time as the Trustee is permitted to apply
all such money or United States Government Obligations in accordance with
Section 9.01; provided, however, that if the Company has made any payment of
interest on or principal of any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or United States
Government Obligations held by the Trustee.
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ARTICLE X.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1. Without Consent of Holders.
The Company and the Guarantors, if any, when authorized by a
resolution of their respective Boards of Directors, and the Trustee may amend
or supplement this Indenture or the Securities without notice to or consent of
any Securityholder:
(i) to cure any ambiguity, defect or inconsistency;
provided, however, that such amendment or supplement does not adversely affect
the rights of any Holder;
(ii) to effect the assumption by a successor Person of all
obligations of the Company under the Securities and this Indenture in
connection with any transaction complying with Article Five of this
Indenture;
(iii) to provide for uncertificated Securities in addition
to or in place of certificated Securities;
(iv) to comply with any requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the TIA;
(v) to make any change that would provide any additional
benefit or rights to the Holders;
(vi) to make any other change that does not adversely affect
the rights of any Holder under this Indenture;
(vii) to evidence the succession of another Person to any
Guarantor and the assumption by any such successor of the covenants
of such Guarantor herein and in the Guarantee;
(viii) to add to the covenants of the Company or the
Guarantors for the benefit of the Holders, or to surrender any right
or power herein conferred upon the Company or any Guarantor;
(ix) to secure the Securities pursuant to the requirements
of Section 4.17 or otherwise; or
(x) to reflect the release of a Guarantor from its
obligations with respect to its Guarantee in accordance with the
provisions of Section 11.03 and to add a Guarantor pursuant to the
requirements of Section 4.18;
provided, however, that the Company has delivered to the
Trustee an Opinion of Counsel and an Officers' Certificate each stating that
such amendment or supplement complies with the provisions of this Section
10.01.
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SECTION 10.2. With Consent of Holders.
The Company, the Guarantors, if any, and the Trustee may
amend or supplement this Indenture or the Securities with the written consent
of the Holders of at least a majority in principal amount of the outstanding
Securities. However, without the consent of each Holder affected, an
amendment, supplement or waiver may not:
(1) change the Stated Maturity of the principal of
any Security;
(2) alter the optional redemption or repurchase
provisions of any Security or this Indenture in a manner
adverse to the holders of the Securities (other than the
provisions of this Indenture relating to any Offer to
Purchase required under Section 4.05 or 4.14);
(3) reduce the principal amount of any Security;
(4) reduce the rate of or extend the time for
payment of interest on any Security;
(5) change the place or currency of payment of the
principal of or interest on any Security;
(6) modify any provisions of this Indenture
relating to the waiver of past defaults (other than to add
sections of this Indenture subject thereto) or the right of
the Holders to institute suit for the enforcement of any
payment on or with respect to any Security or the
Guarantees, or the modification and amendment of this
Indenture and the Securities (other than to add sections of
this Indenture or the Securities which may not be amended,
supplemented or waived without the consent of each Holder
affected);
(7) reduce the percentage of the principal amount
of outstanding Securities necessary for amendment to or
waiver of compliance with any provision of this Indenture or
the Securities or for waiver of any Default;
(8) waive a default in the payment of principal of,
interest on, or redemption payment with respect to, any
Security (except a rescission of acceleration of the
Securities by the Holders as provided in this Indenture and
a waiver of the payment default that resulted from such
acceleration);
(9) modify the ranking or priority of the
Securities or the Guarantee, if any, or modify the
definition of Senior Debt or Designated Senior Debt or
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amend or modify the subordination provisions of this
Indenture in any manner adverse to the Holders; or
(10) release any Guarantor from its Guarantee or
this Indenture otherwise than in accordance with this
Indenture (it being understood that nothing in this clause
(10) requires the consent of Holders of more than a majority
in aggregate principal amount of outstanding Securities to
amend or modify Section 4.05).
In addition, no such modification or amendment may, without
the consent of the Holders of three-fourths of the aggregate principal amount
of Securities affected thereby, modify any of the provisions (including the
definitions relating thereto) relating to any Offer to Purchase required under
Section 4.14 in a manner materially adverse to the Holders.
The Holders of a majority in aggregate principal amount of
the outstanding Securities, on behalf of all holders of Securities, may waive
compliance by the Company with certain restrictive provisions of this
Indenture. Subject to certain rights of the Trustee, as provided in this
Indenture, (i) the Holders of a majority in aggregate principal amount of the
outstanding Securities, on behalf of all Holders of Securities, may waive any
past default under this Indenture, except a default in the payment of principal
or interest or a default arising from failure to purchase any Security tendered
pursuant to an Offer to Purchase required pursuant to Section 4.14, or a
default in respect of a provision that under this Indenture cannot be modified
or amended without the consent of the Holder of each outstanding Security
affected and (ii) the Holders of three-fourths of the aggregate principal
amount of Securities affected thereby, on behalf of all Holders, may waive a
default arising from failure to effect an Offer to Purchase required under
Section 4.14.
It shall not be necessary for the consent of the Holders
under this Section 10.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
SECTION 10.3. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 10.4. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is
not made on any
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Security. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Security or portion of such
Security by written notice to the Trustee or the Company received before the
date on which the Trustee receives an Officers' Certificate certifying that
the Holders of the requisite principal amount of Securities have consented
(and not theretofore revoked such consent) to the amendment, supplement or
waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date.
No such consent shall be valid or effective for more than 90 days after such
record date.
After an amendment, supplement or waiver becomes effective,
it shall bind every Securityholder, unless it makes a change described in the
second sentence of Section 10.02. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security.
SECTION 10.5. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Failure to make the appropriate notation or issue a new Security
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 10.6. Trustee To Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Ten is authorized or permitted by this
Indenture and that such amendment, supplement or waiver constitutes the legal,
valid and binding obligation of the Company and the Guarantors, enforceable in
accordance with its terms (subject to customary exceptions). The Trustee shall
execute any amendment, supplement or waiver authorized pursuant to this Article
Ten, provided,
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however, that the Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise. In signing any amendment,
supplement or waiver, the Trustee shall be entitled to receive an indemnity
reasonably satisfactory to it.
ARTICLE XI.
GUARANTEE
SECTION 11.1. Unconditional Guarantee.
Each Guarantor who becomes a party to this Indenture hereby
unconditionally, jointly and severally, guarantees to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns that: the principal of and interest on the Securities
will be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration or otherwise, and interest on the overdue
principal and interest on any overdue interest on the Securities and all other
obligations of the Company to the Holders or the Trustee hereunder or under the
Securities will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; subject, however, to the limitations set forth in
Section 11.04. Each such Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each such Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that the Guarantee
will not be discharged except by complete performance of the obligations
contained in the Securities, this Indenture, and this Guarantee. If any Holder
or the Trustee is required by any court or otherwise to return to the Company,
any Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or any Guarantor, any amount paid by the
Company or any Guarantor to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between each Guarantor, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six for
the purpose of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
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guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Six, such obligations (whether or not due and payable)
shall forthwith become due and payable by each Guarantor for the purpose of
this Guarantee.
SECTION 11.2. Severability.
In case any provision of this Guarantee shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.3. Release of a Guarantor.
If the Securities are defeased in accordance with Section
9.01(c), or if all of the Capital Stock of any Guarantor is sold (including by
issuance or otherwise) by the Company or any of its Subsidiaries in a
transaction constituting an Asset Disposition (or which, but for the provisions
of clause (c) of the definition of such term, would constitute an Asset
Disposition), and, if required by this Indenture, (x) the Net Available
Proceeds from such Asset Disposition are used in accordance with Section 4.05
or (y) the Company delivers to the Trustee an Officers' Certificate covenanting
that the Net Available Proceeds from such Asset Disposition will be used in
accordance with Section 4.05 and within the time limits specified by such
Section 4.05, then such Guarantor shall be released and discharged from all
obligations under this Article Eleven upon such use in the case of clause (x)
or upon such delivery in the case of clause (y). The Trustee shall, at the sole
cost and expense of the Company and upon receipt at the reasonable request of
the Trustee of an Opinion of Counsel that the provisions of this Section 11.03
have been complied with, deliver an appropriate instrument evidencing such
release upon receipt of a request by the Company accompanied by an Officers'
Certificate certifying as to the compliance with this Section. Any Guarantor
not so released remains liable for the full amount of principal of and interest
on the Securities and the other obligations of the Company hereunder as
provided in this Article Eleven.
SECTION 11.4. Limitation of Guarantor's Liability.
Each Guarantor, and by its acceptance hereof each Holder and
the Trustee, hereby confirms that it is the intention of all such parties that
the guarantee by such Guarantor pursuant to its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of title 11 of the United States
Code, as amended, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar U.S. Federal or state or other applicable law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the obligations of such Guarantor under the Guarantee
shall be limited to the maximum amount as will, after giving effect to all
other contingent and fixed liabilities of such Guarantor and
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after giving effect to any collections from or payments made by or on behalf
of any other Guarantor in respect of the obligations of such other Guarantor
under its Guarantee or pursuant to Section 11.05, result in the obligations of
such Guarantor under the Guarantee not constituting such fraudulent transfer
or conveyance.
SECTION 11.5. Contribution.
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, inter se, that in the event any payment
or distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount, based on the net assets of each
Guarantor (including the Funding Guarantor), determined in accordance with
GAAP, subject to Section 11.04, for all payments, damages and expenses incurred
by that Funding Guarantor in discharging the Company's obligations with respect
to the Securities or any other Guarantor's obligations with respect to the
Guarantee.
SECTION 11.6. Execution of Guarantee.
To further evidence their Guarantee to the Holders, any
Guarantor required to Guarantee the Securities pursuant to Section 4.18 shall
execute the endorsement of Guarantee in substantially the form set forth in
Exhibit A hereto, which endorsement shall be delivered to each Holder to be
attached to each Security. Each such Guarantor hereby agrees that its Guarantee
set forth in Section 11.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Guarantee. Each such Guarantee shall be signed on behalf of each Guarantor by
its Chairman of the Board, its President or one of its Vice Presidents prior to
the authentication of the Security on which it is endorsed, and the delivery of
such Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such Guarantee on behalf of such Guarantor. Such
signature upon the Guarantee may be manual or facsimile signature of such
officer and may be imprinted or otherwise reproduced on the Guarantee, and in
case such officer who shall have signed the Guarantee shall cease to be such
officer before the Security on which such Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the Person who signed the Guarantee had not ceased to be such officer of
the Guarantor.
SECTION 11.7. Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the
Company that arises from the payment, performance or enforcement of such
Guarantor's obligations under its Guarantee or this
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Indenture, including, without limitation, any right of subrogation, shall be
subject and subordinate to, and no payment with respect to any such claim of
such Guarantor shall be made before, the payment in full in cash of all
outstanding Securities in accordance with the provisions provided therefor in
this Indenture.
ARTICLE XII.
SUBORDINATION OF GUARANTEE
SECTION 12.1. Guarantee Obligations Subordinated to Senior
Debt of Guarantor.
Each Guarantor covenants and agrees, and the Trustee and each
Holder of the Securities by his acceptance thereof likewise covenant and agree,
that the Guarantees shall be issued subject to the provisions of this Article;
and each person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that all payments
of the principal of and interest on the Securities pursuant to the Guarantee
made by or on behalf of any Guarantor shall, to the extent and in the manner
set forth in this Article, be subordinated and junior in right of payment to
the prior payment in full of all Senior Debt of such Guarantor.
SECTION 12.2. No Payment on Guarantees in Certain
Circumstances.
(a) No direct or indirect payment by or on behalf of any
Guarantor of principal of or interest on the Securities (other than payments to
Holders from funds held in trust for the benefit of Holders pursuant to Section
9.01) pursuant to such Guarantor's Guarantee, whether pursuant to the terms of
the Securities, upon acceleration or otherwise, will be made if, at the time of
such payment, there exists a default in the payment of all or any portion of
the obligations on any Designated Senior Debt of such Guarantor whether at
maturity, on account of mandatory redemption or prepayment, acceleration or
otherwise, and such default shall not have been cured or waived. In addition,
during the continuance of any non-payment default or non-payment event of
default with respect to any Designated Senior Debt pursuant to which the
maturity thereof may be accelerated, and upon receipt by the Trustee of written
notice (the "Guarantor Payment Blockage Notice") from a holder or holders of
such Designated Senior Debt or the trustee or agent acting on behalf of such
Designated Senior Debt, then, unless and until such default or event of default
has been cured or waived or has ceased to exist or such Designated Senior Debt
has been discharged or repaid in full, or the requisite holders of such
Designated Senior Debt have otherwise agreed in writing, no payment or
distribution will be made by or on behalf of such Guarantor on account of or
with respect to the Securities (other than payments to Holders from funds held
in trust for the benefit
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of Holders pursuant to Section 9.01), during a period (a "Guarantor Blockage
Period") commencing on the date of receipt of such Guarantor Payment Blockage
Notice by the Trustee and ending 179 days thereafter.
Notwithstanding anything herein or in the Securities to the
contrary, (x) in no event shall a Guarantor Blockage Period extend beyond 179
days from the date the Guarantor Payment Blockage Notice was given and (y)
there must be 180 days in any 365 day period during which no Guarantor Payment
Blockage Period is in effect with respect to such Guarantor. Not more than one
Guarantor Blockage Period may be commenced with respect to each Guarantor
during any period of 365 consecutive days. No default or event of default that
existed or was continuing on the date of commencement of any Guarantor Blockage
Period with respect to the Designated Senior Debt initiating such Guarantor
Payment Blockage Period may be, or be made, the basis for the commencement of
any Guarantor Blockage Period by the holder or holders of such Designated
Senior Debt or the trustee or agent acting on behalf of such Designated Senior
Debt, whether or not within a period of 365 consecutive days, unless such
default or event of default has been cured or waived for a period of not less
than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by Section 12.02(a), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of such
Designated Senior Debt or their respective representatives, or to the trustee
or trustees under any indenture pursuant to which any of such Designated Senior
Debt may have been issued, as their respective interests may appear, but only
to the extent that, upon notice from the Trustee to the holders of such
Designated Senior Debt that such prohibited payment has been made, the holders
of such Designated Senior Debt (or their representative or representatives or a
trustee) notify the Trustee in writing of the amounts then due and owing on
such Designated Senior Debt, if any, and only the amounts specified in such
notice to the Trustee shall be paid to the holders of such Designated Senior
Debt.
SECTION 12.3. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities
of any Guarantor of any kind or character (whether in cash, property or
securities) upon any dissolution or winding-up or total or partial liquidation
or reorganization of such Guarantor, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or
to become due with respect to all Senior Debt of such Guarantor shall first be
paid in full, or payment provided for, before the Holders or the Trustee on
their behalf shall be entitled to receive any payment by such Guarantor of the
principal of or
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interest on the Securities pursuant to such Guarantor's Guarantee, or any
payment to acquire any of the Securities for cash, property or securities, or
any distribution with respect to the Securities of any cash, property or
securities. Before any payment may be made by, or on behalf of, any Guarantor
of the principal of or interest on the Securities upon any such dissolution or
winding-up or liquidation or reorganization, any payment or distribution of
assets or securities of such Guarantor of any kind or character, whether in
cash, property or securities, to which the Holders of the Securities or the
Trustee on their behalf would be entitled, but for the subordination
provisions of this Indenture, shall be made by such Guarantor or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, directly to the holders of the Senior
Debt of such Guarantor or their representative(s) or to the trustee(s) under
any indenture pursuant to which any of such Senior Debt may have been issued,
as their respective interests may appear, to the extent necessary to pay all
such Senior Debt in full after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Senior Debt.
(b) In the event that, notwithstanding the foregoing
provision prohibiting such payment or distribution, any payment or distribution
of assets or securities of any kind or character, whether in cash, property or
securities, shall be received by the Trustee or any Holder at a time when such
payment or distribution is prohibited by Section 12.03(a) and before all
obligations in respect of the Senior Debt of such Guarantor are paid in full,
or payment provided for, such payment or distribution shall be received and
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of such Senior Debt or their respective representative(s), or to the
trustee(s) under any indenture pursuant to which any of such Senior Debt may
have been issued, as their respective interests may appear, for application to
the payment of such Senior Debt remaining unpaid until all such Senior Debt has
been paid in full after giving effect to any concurrent payment, distribution
or provision therefor to or for the holders of such Senior Debt.
(c) The consolidation of any Guarantor with, or the merger of
any Guarantor with or into, another corporation or the liquidation or
dissolution of any Guarantor following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided in Article Five or Section
11.03 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Five or such Guarantor or successor
entity shall be released from the Guarantee pursuant to the terms of Section
11.03.
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SECTION 12.4. Subrogation.
Upon the payment in full of all Senior Debt of a Guarantor,
or provision for payment, the Holders shall be subrogated (equally and ratably
with all pari passu Indebtedness) to the rights of the holders of such Senior
Debt to receive payments or distributions of cash, property or securities of
such Guarantor made on such Senior Debt until the principal of and interest on
the Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior Debt of
any cash, property or securities to which the Holders or the Trustee on their
behalf would be entitled except for the provisions of this Article, and no
payment over pursuant to the provisions of this Article to the holders of such
Senior Debt by Holders or the Trustee on their behalf shall, as between such
Guarantor, its creditors other than holders of such Senior Debt, and the
Holders, be deemed to be a payment by such Guarantor to or on account of such
Senior Debt. It is understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders,
on the one hand, and the holders of Senior Debt of the Guarantors, on the other
hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article shall have
been applied, pursuant to the provisions of this Article, to the payment of all
amounts payable under Senior Debt, then and in such case, the Holders shall be
entitled to receive from the holders of such Senior Debt any payments or
distributions received by such holders of Senior Debt in excess of the amount
required to make payment in full, or provision for payment, of such Senior
Debt.
SECTION 12.5. Obligations of Guarantors Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities or the Guarantee is intended to or shall impair,
as among the Guarantors and the Holders, the obligation of each Guarantor,
which is absolute and unconditional, to pay to the Holders the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with the terms of the Guarantee, or is intended to or shall affect
the relative rights of the Holders and creditors of any Guarantor other than
the holders of Senior Debt, nor shall anything herein or therein prevent any
Holder or the Trustee on their behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Debt in respect of
cash, property or securities of any Guarantor received upon the exercise of any
such remedy.
Without limiting the generality of the foregoing, nothing
contained in this Article shall restrict the right of the
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Trustee or the Holders to take any action to declare the Securities to be due
and payable prior to their stated maturity pursuant to Section 6.01 or to
pursue any rights or remedies hereunder; provided, however, that all Senior
Debt of any Guarantor then due and payable shall first be paid in full before
the Holders or the Trustee are entitled to receive any direct or indirect
payment from such Guarantor of principal of or interest on the Securities
pursuant to such Guarantor's Guarantee.
SECTION 12.6. Notice to Trustee.
The Company shall give prompt written notice to the Trustee
of any fact known to the Company or such Guarantor which would prohibit the
making of any payment to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article. Failure to give such notice to the
Trustee shall not affect the subordination of the Securities to Senior Debt of
Guarantors. The Trustee shall not be charged with knowledge of the existence of
any default or event of default with respect to any Senior Debt or of any other
facts which would prohibit the making of any payment to or by the Trustee
unless and until the Trustee shall have received notice in writing to that
effect signed by an Officer of the Company, or by a holder of Senior Debt or
trustee or agent therefor; and prior to the receipt of any such written notice,
the Trustee shall, subject to Article Seven, be entitled to assume that no such
facts exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section 12.06 at least three Business Days prior to
the date upon which by the terms of this Indenture any moneys shall become
payable for any purpose (including, without limitation, the payment of the
principal of or interest on any Security), then, regardless of anything herein
to the contrary, the Trustee shall have full power and authority to receive any
moneys from any Guarantor and to apply the same to the purpose for which they
were received, and shall not be affected by any notice to the contrary which
may be received by it on or after such prior date. Nothing contained in this
Section 12.06 shall limit the right of the holders of Senior Debt of a
Guarantor to recover payments as contemplated by Section 12.02 or 12.03. The
Trustee shall be entitled to rely on the delivery to it of a written notice by
a Person representing himself or itself to be a holder of any Senior Debt of a
Guarantor (or a trustee on behalf of, or other representative of, such holder)
to establish that such notice has been given by a holder of such Senior Debt of
a Guarantor or a trustee or representative on behalf of any such holder.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Senior Debt of a Guarantor to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Debt held by such Person, the extent to which such Person
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is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 12.7. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets or securities of a
Guarantor referred to in this Article, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of Senior Debt of such Guarantor and other
indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 12.8. Trustee's Relation to Senior Debt of
Guarantors.
The Trustee and any Paying Agent shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt of Guarantors
which may at any time be held by it in its individual or any other capacity to
the same extent as any other holder of such Senior Debt, and nothing in this
Indenture shall deprive the Trustee or any Paying Agent of any of its rights as
such holder.
With respect to the holders of a Guarantor's Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of such Senior Debt shall
be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt of Guarantors
(except as provided in Section 12.03(b)). The Trustee shall not be charged with
knowledge of the existence of Senior Debt or of any facts that would prohibit
any payment hereunder unless the Trustee shall have received notice to that
effect at the address of the Trustee set forth in Section 13.02.
SECTION 12.9. Subordination Rights Not Impaired by Acts or
Omissions of the Guarantors or Holders of Senior Debt of Guarantors.
No right of any present or future holders of any Senior Debt
of Guarantors to enforce subordination as provided herein
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shall at any time in any way be prejudiced or impaired by any act or failure
to act on the part of any Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by any Guarantor with the
terms of this Indenture, regardless of any knowledge thereof which any such
holder may have or otherwise be charged with. The provisions of this Article
are intended to be for the benefit of, and shall be enforceable directly by,
the holders of Senior Debt of Guarantors.
SECTION 12.10. Securityholders Authorize Trustee to
Effectuate Subordination of Guarantee.
Each Holder of Securities by his acceptance of such
Securities authorizes and expressly directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article, and appoints the Trustee his attorney-in-fact for
such purposes, including, in the event of any dissolution, winding up,
liquidation or reorganization of any Guarantor (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of such Guarantor, the filing of a claim
for the unpaid balance of its or his Securities in the form required in those
proceedings.
SECTION 12.11. This Article Not to Prevent Events of Default.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article shall not
be construed as preventing the occurrence of an Event of Default specified in
Section 6.01(a), (b) or (c).
SECTION 12.12. Trustee's Compensation Not Prejudiced.
Nothing in this Article shall apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
SECTION 12.13. No Waiver of Guarantee Subordination
Provisions.
Without in any way limiting the generality of Section 12.09,
the holders of Senior Debt of Guarantors may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt of Guarantors, do any one or more of the following: (a) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Debt of Guarantors or any instrument evidencing the same or any
agree-
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ment under which such Senior Debt is outstanding or secured; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Debt; (c) release any Person liable in any
manner for the collection of such Senior Debt; and (d) exercise or refrain
from exercising any rights against any Guarantor and any other Person.
SECTION 12.14. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article or elsewhere in this
Indenture shall prevent (i) a Guarantor, except under the conditions described
in Section 12.02, from making payments of principal of and interest on the
Securities, or from depositing with the Trustee any moneys for such payments,
or (ii) the application by the Trustee of any moneys deposited with it for the
purpose of making such payments of principal of and interest on the Securities,
to the holders entitled thereto unless at least three Business Days prior to
the date upon which such payment becomes due and payable, the Trustee shall
have received the written notice provided for in Section 12.02(b) or in Section
12.06.
ARTICLE XIII.
MISCELLANEOUS
SECTION 13.1. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that
are required to be a part of this Indenture, and shall, to the extent
applicable, be governed by such provisions. If any provision of this Indenture
modifies any TIA provision that may be so modified, such TIA provision shall be
deemed to apply to this Indenture as so modified. If any provision of this
Indenture excludes any TIA provision that may be so excluded, such TIA
provision shall be excluded from this Indenture.
The provisions of TIA xx.xx. 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 13.2. Notices.
Any notice or communication shall be sufficiently given if in
writing and delivered in person, by facsimile, by overnight courier, or mailed
by first-class mail addressed as follows:
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if to the Company:
United Auto Group, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chairman and Chief Executive Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxxx, Esq.
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when telephonic acknowledgment of receipt is
obtained, if telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight courier promising next Business Day delivery.
Any notice or communication to a Holder shall be mailed, by
first class mail, postage prepaid, or by overnight air courier promising next
Business Day delivery, including any notice delivered in connection with TIA
xx.xx. 310(b), 313(c), 314(a) and 315(b), to him at his address as set forth on
the registration books of the Registrar and shall be sufficiently given to him
if so mailed within the time prescribed. To the extent required by the TIA, any
notice or communication shall also be mailed to any Person described in TIA ss.
313(c).
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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 given in the
manner provided above, it is duly given, whether or not the addressee receives
it.
SECTION 13.3. 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 any other
person shall have the protection of TIA ss. 312(c).
SECTION 13.4. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee
to take or refrain from taking any action under this Indenture, the Company
shall furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance
satisfactory to the Trustee stating that, in the opinion of
the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been
complied with;
(2) an Opinion of Counsel in form and substance
satisfactory to the Trustee stating that, in the opinion of
such counsel, all such conditions precedent have been
complied with; and
(3) where applicable, a certificate or opinion by
an independent certified public accountant satisfactory to
the Trustee that complies with TIA ss. 314(c).
SECTION 13.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
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(3) a statement that, in the opinion of such
person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been
complied with; provided, however, that with respect to
matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 13.7. Governing Law.
The laws of the State of New York shall govern this
Indenture, the Securities and the Guarantee without regard to principles of
conflicts of law.
SECTION 13.8. No Recourse Against Others.
No director, officer, employee or stockholder, as such, of
the Company or any of its Subsidiaries shall have any liability for any
obligations of the Company or any Guarantor under the Securities, the
Guarantees or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities.
SECTION 13.9. Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of each Guarantor in this
Indenture and the Guarantee of such Guarantor shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its successor.
SECTION 13.10. Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
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SECTION 13.11. Severability.
In case any provision in this Indenture, in the Securities or
in the Guarantee shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and a Holder shall have no claim therefor against
any party hereto.
SECTION 13.12. No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a Subsidiary. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.13. Legal Holidays.
If a payment date is not a Business Day at a place of
payment, payment may be made at that place on the next succeeding Business Day,
and no interest shall accrue for the intervening period.
[Signature Pages Follow]
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
UNITED AUTO GROUP, INC.
By: __________________
Name:
Title:
GUARANTORS:
DIFEO PARTNERSHIP, INC.
DIFEO PARTNERSHIP RCT, INC.
DIFEO PARTNERSHIP RCM, INC.
DIFEO PARTNERSHIP HCT, INC.
DIFEO PARTNERSHIP SCT, INC.
DIFEO PARTNERSHIP VIII, INC.
DIFEO PARTNERSHIP IX, INC.
DIFEO PARTNERSHIP X, INC.
UAG NORTHEAST, INC.
UAG NORTHEAST (NY), INC.
XXXXXX TOYOTA, INC.
SOMERSET MOTORS, INC.
UAG WEST, INC.
SA AUTOMOTIVE, LTD.
SL AUTOMOTIVE, LTD.
SPA AUTOMOTIVE, LTD.
LRP, LTD.
SUN BMW, LTD.
6725 DEALERSHIP, LTD.
SCOTTSDALE MANAGEMENT GROUP, LTD.
SK MOTORS, LTD.
SCOTTSDALE AUDI, LTD.
UNITED XXXXXXX, INC.
XXXXXXX AUTO SALES, INC.
XXXXXXX UNITED AUTO GROUP, INC.
XXXXXXX UNITED AUTO GROUP NO. 2,
INC.
XXXXXXX UNITED AUTO GROUP NO. 3,
INC.
XXXXXXX UNITED AUTO GROUP NO. 4,
INC.
XXXXXXX BUICK-PONTIAC, INC.
UAG ATLANTA, INC.
ATLANTA TOYOTA, INC.
UAG ATLANTA II, INC.
UNITED NISSAN, INC.,
a Georgia corporation
UAG ATLANTA III, INC.
PEACHTREE NISSAN, INC.
UAG ATLANTA IV, INC.
UAG ATLANTA IV MOTORS, INC.
UAG ATLANTA V, INC.
XXXXXXX NISSAN, INC.
UAG TENNESSEE, INC.
UNITED NISSAN, INC.,
a Tennessee corporation
UAG TEXAS, INC.
UAG TEXAS II, INC.
UAG EAST, INC.
AMITY AUTO PLAZA, LTD.
AMITY NISSAN OF MASSAPEQUA, LTD.
AUTO MALL PAYROLL SERVICES, INC.
AUTOMALL STORAGE, INC.
FLORIDA CHRYSLER PLYMOUTH, INC.
J&S AUTO REFINISHING, LTD.
NORTHLAKE AUTO FINISH, INC.
PALM AUTO PLAZA, INC.
WEST PALM AUTO MALL, INC.
WEST PALM INFINITI, INC.
WEST PALM NISSAN, INC.
WESTBURY NISSAN, LTD.
WESTBURY SUPERSTORE, LTD.
UAG CAROLINA, INC.
XXXX XXXX CHEVROLET, INC.
XXXXXXX CHEVROLET-OLDSMOBILE, INC.
XXXX XXXXXXX CHEVROLET, INC.
UAG NEVADA, INC.
UNITED NISSAN, INC.,
a Nevada corporation
UNITED AUTOCARE, INC.
UNITED AUTOCARE PRODUCTS, INC.
UAG CAPITAL MANAGEMENT, INC.
UAG FINANCE COMPANY, INC.
UAG ATLANTA VI, INC.
UNITED JEEP EAGLE CHRYSLER PLYMOUTH
OF STONE MOUNTAIN, INC.
By: __________________
Name:
Title:
FAIR HYUNDAI PARTNERSHIP
FAIR CHEVROLET-GEO PARTNERSHIP
DANBURY AUTO PARTNERSHIP
DANBURY CHRYSLER PLYMOUTH
PARTNERSHIP
J&F OLDSMOBILE PARTNERSHIP
DIFEO HYUNDAI PARTNERSHIP
DIFEO LEASING PARTNERSHIP
DIFEO NISSAN PARTNERSHIP
DIFEO CHEVROLET-GEO PARTNERSHIP
DIFEO CHRYSLER PLYMOUTH JEEP
EAGLE PARTNERSHIP
DIFEO BMW PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.,
a general partner
By: __________________
Name:
Title:
XXXXXX MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP HCT, INC.,
a general partner
By: __________________
Name:
Title:
OCT PARTNERSHIP
By DIFEO PARTNERSHIP VIII, INC.,
a general partner
By: __________________
Name:
Title:
OCM PARTNERSHIP
By DIFEO PARTNERSHIP IX, INC.,
a general partner
By: __________________
Name:
Title:
SOMERSET MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP SCT, INC.,
a general partner
By: __________________
Name:
Title:
COUNTY AUTO GROUP PARTNERSHIP
By: DIFEO PARTNERSHIP RCT, INC.,
a general partner
By: __________________
Name:
Title:
ROCKLAND MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP RCM, INC.,
a general partner
By: __________________
Name:
Title:
6725 AGENT PARTNERSHIP
By: SCOTTSDALE AUDI, LTD.,
a general partner
By: __________________
Name:
Title:
XXXXXXX AUTOMOTIVE, LTD.
By: UAG TEXAS II, INC.,
its general partner
By: __________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: __________________
Name:
Title:
EXHIBIT A
UNITED AUTO GROUP, INC.
CUSIP No.
No. $
11% SENIOR SUBORDINATED NOTE DUE 2007, SERIES B
UNITED AUTO GROUP, INC. promises to pay to
or registered assigns the principal sum of
Dollars on July 15, 2007.
Interest Payment Dates: January 15 and July 15, beginning
January 15, 1998.
Record Dates: January 1 and July 1, beginning
January 1, 1998.
IN WITNESS WHEREOF, UNITED AUTO GROUP, INC. has caused this
instrument to be executed by duly authorized officers.
UNITED AUTO GROUP, INC.
By: ________________________
Name:
Title:
Dated: By: ________________________
Name:
Title:
Certificate of Authentication:
This is one of the 11% Senior Subordinated Notes due 2007,
Series B referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK
a Trustee
By
----------------------- Date:
Authorized Signatory
A-1
(REVERSE OF SECURITY)
UNITED AUTO GROUP, INC.
11% Senior Subordinated Note due 2007, Series B
1. Interest.
United Auto Group, Inc., a Delaware corporation (the "Company"),
promises to pay interest at the rate of 11% per annum on the principal amount
of this Security semiannually commencing on January 15, 1998, until the
principal hereof is paid or made available for payment. Interest on the
Securities will accrue from and including the most recent date to which
interest has been paid or, if no interest has been paid, from and including
September 16, 1997, through but excluding the date on which interest is paid.
If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
2. Method of Payment; Ranking.
The interest payable on the Securities, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture
(as defined below), be paid to the Person in whose name this Security is
registered at the close of business on the regular record date, which shall be
the January 1 or July 1 (whether or not a Business Day) next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for, and any interest payable on such defaulted interest (to the
extent lawful), will forthwith cease to be payable to the Holder on such
regular record date and shall be paid to the person in whose name this Security
is registered at the close of business on a special record date for the payment
of such defaulted interest to be fixed by the Company, notice of which shall be
given to Holders not less than 15 days prior to such special record date.
Payment of the principal of and interest on this Security will be made at the
agency of the Company maintained for that purpose in New York, New York and at
any other office or agency maintained by the Company for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security register.
The Securities will rank pari passu in right of payment with the
11% Senior Subordinated Notes due 2007 originally issued by the Company on July
23, 1997.
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3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders of Securities. The Company or any
of its Subsidiaries may act as Registrar or co-Registrar but may not act as
Paying Agent.
4. Indenture.
This Security is one of a duly authorized issue of Securities of
the Company, designated as its 11% Senior Subordinated Notes due 2007, Series B
(the "Securities"), limited in aggregate principal amount to $50,000,000
(except for Securities issued in substitution for destroyed, lost or stolen
Securities) issuable under an indenture dated as of September 16, 1997 (the
"Indenture"), among the Company, the guarantors party thereto (the
"Guarantors") and the Trustee. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by the Trust Indenture
Act of 1939 (the "Act") (15 U.S. Code xx.xx. 77aaa-77bbbb) as in effect on the
date of the Indenture. The Securities are subject to all such terms, and
Holders of Securities are referred to the Indenture and the Act for a statement
of them. Each Securityholder, by accepting a Security, agrees to be bound to
all of the terms and provisions of the Indenture, as the same may be amended
from time to time. Payment on each Security is guaranteed on a senior
subordinated basis, jointly and severally, by the Guarantors pursuant to
Article Eleven of the Indenture.
The Securities are subordinated in right of payment to all Senior
Debt of the Company to the extent and in the manner provided in the Indenture.
Each Holder of a Security, by accepting a Security, agrees to such
subordination, authorizes the Trustee to give effect to such subordination and
appoints the Trustee as attorney-in-fact for such purpose.
Capitalized terms contained in this Security to the extent not
defined herein shall have the meanings assigned to them in the Indenture.
5. Optional Redemption.
The Securities will be subject to redemption, at the option of the
Company, in whole or in part, at any time on or after July 15, 2002 and prior
to maturity, upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Securities to be redeemed, in amounts of $1,000 or an integral
multiple of $1,000, at the following redemption prices (expressed as
percentages of principal amount), plus accrued interest to but excluding the
date fixed for redemption (subject to the right of Holders on the relevant
Record Date to receive interest due on an Interest Payment Date that is on or
prior to the date fixed for
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redemption), if redeemed during the 12-month period beginning July 15 of the
years indicated:
Year Percentage
2002 105.500%
2003 103.667
2004 101.833
2005 and thereafter 100.000
In addition, prior to July 15, 2000, the Company may redeem
Securities with the net cash proceeds received by the Company from one or more
Public Equity Offerings at a redemption price equal to 111% of the principal
amount thereof, plus accrued and unpaid interest to (but excluding) the date
fixed for redemption; provided, however, that at least 66 2/3% in aggregate
principal amount of the Securities originally issued remains outstanding
immediately after any such redemption (excluding any Securities owned by the
Company or any of its Affiliates). Notice of redemption pursuant to this
paragraph must be mailed to Holders of Securities to be redeemed not later than
60 days following the consummation of the relevant Public Equity Offering.
Selection of Securities for any partial redemption shall be made by
the Trustee, in accordance with the rules of any national securities exchange
on which the Securities may be listed or, if the Securities are not so listed,
pro rata or by lot or in such other manner as the Trustee shall deem
appropriate and fair. Securities in denominations larger than $1,000 may be
redeemed in part but only in integral multiples of $1,000. Notice of redemption
will be mailed before the date fixed for redemption to each Holder of
Securities to be redeemed at his or her registered address.
On and after the date fixed for redemption, interest will cease to accrue on
Securities or portions thereof called for redemption.
The Securities will not have the benefit of any sinking fund.
6. Offer to Purchase upon Occurrence
of a Change of Control.
Within 30 days following a Change of Control, the Company will
offer to purchase the Securities at a purchase price equal to 101% of the
principal amount thereof plus any accrued and unpaid interest thereon.
7. Notice of Redemption.
Notice of redemption will be mailed by first class mail 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
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$1,000 may be redeemed in part. On and after the redemption date, interest
ceases to accrue on those Securities or portion of them called for redemption.
8. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not transfer or exchange any Securities
selected for redemption.
9. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of
it for all purposes.
10. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed
for two years, the Trustee or Paying Agent will repay the funds to the Company
at its request. After such repayment Holders of Securities entitled to such
funds must look to the Company for payment unless an abandoned property law
designates another person.
11. Discharge Prior to Redemption or Maturity.
The Indenture will be discharged and canceled except for certain
Sections thereof, subject to the terms of the Indenture, upon the payment of
all the Securities or upon the irrevocable deposit with the Trustee of funds or
United States Government Obligations sufficient for such payment or redemption.
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the outstanding Securities, and any past
default or compliance with any provision may be waived with the consent of the
Holders of a majority in principal amount of the outstanding Securities.
Without notice to or the consent of any Holder, the Company, the Guarantors and
the Trustee may amend or supplement the Indenture or the Securities to cure any
ambiguity, defect or inconsistency, or to make any change that does not
adversely affect the rights of any Holder of Securities.
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13. Restrictive Covenants.
The Indenture restricts, among other things, the ability of the
Company or any Restricted Subsidiary to permit any Liens to be imposed on their
assets, to make certain Restricted Payments and Investments, limits the
Indebtedness which the Company or any Restricted Subsidiary may incur and
limits the terms on which the Company may engage in certain Asset Dispositions.
The Company is also obligated under certain circumstances to make an offer to
purchase Securities with the net cash proceeds of certain Asset Dispositions.
The Company must report quarterly to the Trustee on compliance with the
covenants in the Indenture.
14. Successor Corporation.
Pursuant to the Indenture, the ability of the Company to
consolidate with, merge with or into or transfer its assets to another person
is conditioned upon certain requirements, including certain financial
requirements applicable to the surviving Person.
15. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the
principal of all of the outstanding Securities, plus all accrued and unpaid
interest, if any, to the date the Securities become due and payable, may be
declared due and payable in the manner and with the effect provided in the
Indenture.
16. Trustee Dealings with Company.
The Trustee in its individual or any other capacity, may become the
owner or pledgee of Securities and 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.
17. No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the
Company or any of its Subsidiaries shall have any liability for any obligations
of the Company or any Guarantor under the Securities, the Guarantee 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 issue of the Securities.
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18. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of Securityholder
or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
21. Governing Law.
The laws of the State of New York shall govern the Indenture, this
Security and the Guarantee without regard to principles of conflicts of law.
The Company will furnish to any Holder of record of Securities upon
written request and without charge a copy of the Indenture.
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[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantor(s) (as defined in the Indenture
referred to in the Security upon which this notation is endorsed) hereby,
jointly and severally, unconditionally guarantee on a senior subordinated basis
(such guarantee by each Guarantor being referred to herein as the
"Guarantee") the due and punctual payment of the principal of, premium, if any,
and interest on the Securities, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal,
premium and interest, if any, on the Securities, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee, all in accordance with the terms set forth in Article Eleven of the
Indenture.
The obligations of each Guarantor to the Holders of
Securities and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth, and are expressly subordinated and subject in right of
payment to the prior payment in full of all Senior Debt of such
Guarantor, to the extent and in the manner provided, in Article Twelve of the
Indenture, and reference is hereby made to such Indenture for the precise terms
of the Guarantee therein made.
The Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Securities upon
which the Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized
officers.
This Guarantee shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
This Guarantee is subject to release upon the terms
set forth in the Indenture.
[GUARANTORS]
By: _____________________________
Name:
Title:
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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:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code and social security or
tax ID number of assignee)
and irrevocably appoint , agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Dated: Signed:
------------------ ----------------
(Sign exactly as name
appears on the other side
of this Security)
Signature Guarantee:
------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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OPTION OF HOLDER TO ELECT PURCHASE
If you the Holder want to elect to have this Security purchased by the Company,
check the box: [ ]
If you want to elect to have only part of this Security purchased by the
Company, state the amount: $
------------
Dated: Your signature:
----------- ----------------------
(Sign exactly as name
appears on the other
side of this Security)
Signature Guarantee:
-------------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-10
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
UNITED AUTO GROUP, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
[Name and Address of Registrar]
Re: 11% Senior Subordinated Notes due 2007, Series B
Reference is hereby made to the Indenture, dated as of
September 16, 1997 (the "Indenture"), between United Auto Group, Inc. (the
"Company"), and The Bank of New York, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
________________, (the "Transferor") owns and proposes to
transfer the Security[s] specified in Annex A hereto in the principal amount of
$___ in such Security[s] (the "Transfer"), to ________ (the "Transferee"), as
further specified in Annex A hereto. In the event that Transferor holds
Physical Securities, this Certificate is accompanied by one or more
certificates aggregating at least the principal amount of Securities proposed
to be Transferred. In connection with the Transfer, the Transferor hereby
certifies that:
1. [ ] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE 144A GLOBAL SECURITY.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
Securities are being transferred to a Person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred Security will be subject to the restrictions on
transfer enumerated in the Securities Act Legend and in the Indenture and the
Securities Act.
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2. [ ] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE REGULATION S GLOBAL
SECURITY PURSUANT TO REGULATION S. The Transfer is being effected pursuant to
and in accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to
a person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 904(b) of
Regulation S under the Securities Act and (iii) the transaction is not part of
a plan or scheme to evade the registration requirements of the Securities Act.
Upon consummation of the proposed transfer in accordance with the terms of the
Indenture, the Security will be subject to the restrictions on Transfer
enumerated in the Securities Act Legend printed on the Regulation S Global
Security and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A RESTRICTED
PHYSICAL SECURITY PURSUANT TO RULE 144A OR REGULATION S. One or more of the
events specified in Section 2.06(a) of the Indenture have occurred and the
Transfer is being effected in compliance with the transfer restrictions
applicable to Securities bearing the Securities Act Legend and pursuant to and
in accordance with the Securities Act, and accordingly the Transferor hereby
further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144A under the Securities Act and the Transferor certifie
s to the effect set forth in paragraph 1 above; or
(b) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 904 under the Securities Act and the Transferor certifies
to the effect set forth in paragraph 2 above.
4. [ ] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE UNRESTRICTED GLOBAL
SECURITY The Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture, and the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred Securities will
no longer be subject to the restrictions on transfer enumerated in the
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Securities Act Legend and in the Indenture and the Securities Act.
5. [ ] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE PHYSICAL GLOBAL
SECURITY THAT DOES NOT BEAR THE SECURITIES ACT LEGEND One or more of the events
specified in Section 2.06(a) of the Indenture have occurred and the Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the
Indenture, and the restrictions on transfer contained in the Indenture and the
Securities Act Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred Securities will no longer be
subject to the restrictions on transfer enumerated in the
Securities Act Legend and in the Indenture and the Securities Act.
B-3
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuers.
[Insert Name of Transferor]
By: ___________________________
Name:
Title:
Dated:_________________
B-4
FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] Interests in the
(i) [ ] 144A Global Security (CUSIP _____), or
(ii) [ ] Regulation S Global Security (CINS _____).
(b) [ ] Physical Security.
2. That the Transferee will hold:
[CHECK ONE]
(a) [ ] Interests in the:
(i) [ ] 144A Global Security (CUSIP _____), or
(ii) [ ] Regulation S Global Security (CINS _____), or
(iii) [ ] Unrestricted Global Security (CUSIP _____); or
(b) [ ] Physical Securities that bear the Securities Act Legend;
(c) [ ] Physical Securities that do not bear the Securities Act
Legend;
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
UNITED AUTO GROUP, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
[Name and Address of Registrar]
Re: 11% Senior Subordinated Notes due 2007, Series B
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of
September 16, 1997 (the "Indenture"), between United Auto Group, Inc. (the
"Company") and The Bank of New York, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
__________, (the "Holder") owns and proposes to exchange the
Security[s] specified herein, in the principal amount of $___ in such
Security[s] (the "Exchange"). In the event Holder holds Physical Securities,
this Certificate is accompanied by one or more certificates aggregating at
least the principal amount of Securities proposed to be Exchanged. In
connection with the Exchange, the Holder hereby certifies that:
1. EXCHANGE OF RESTRICTED PHYSICAL SECURITIES OR INTERESTS IN THE INITIAL
GLOBAL SECURITY FOR PHYSICAL SECURITIES THAT DO NOT BEAR THE SECURITIES ACT
LEGEND OR UNRESTRICTED GLOBAL SECURITIES
(A) [ ] CHECK IF EXCHANGE IS FROM INITIAL GLOBAL SECURITIES TO THE
UNRESTRICTED GLOBAL SECURITY. In connection with the Exchange of the Holder's
Initial Global Security to the Unrestricted Global Security in an equal
principal amount, the Holder hereby certifies (i) the Unrestricted Global
Securities are being acquired for the Holder's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Initial Global Securities and pursuant to and in
accordance with the Securities Act of 1933, as amended (the "Securities Act")
and (iii) the restrictions on transfer contained in the Indenture and the
Securities Act Legend are not required in order to maintain compliance with the
Securities Act.
(B) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO AN
INTEREST IN THE UNRESTRICTED GLOBAL SECURITY. In connection with the Holder's
Exchange of Restricted Physical Securities for Interest in the Unrestricted
Global Security, (i) the Interest in the Unrestricted Global Security are being
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acquired for the Holder's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Physical Securities and pursuant to and in accordance with the
Securities Act and (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act.
(C) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO
PHYSICAL SECURITIES THAT DO NOT BEAR THE SECURITIES ACT LEGEND. In connection
with the Holder's Exchange of a Restricted Physical Security for Physical
Securities that do not bear the Securities Act Legend, the Holder hereby
certifies (i) the Physical Securities that do not bear the Securities Act
Legend are being acquired for the Holder's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Physical Securities and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act and (iv) one or more of the events specified
in Section 2.06(a) of the Indenture have occurred.
2. [ ] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO INTERESTS IN
AN INITIAL GLOBAL SECURITY . In connection with the Exchange of the Holder's
Restricted Physical Security for interests in an Initial Global Security
[[CHECK ONE] [ ] 144A Global Security, [ ] Regulation S Global Security], with
an equal principal amount, (i) the interests in the Initial Global Security are
being acquired for the Holder's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Physical Security and pursuant to and in
accordance with the Securities Act. Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the Initial Global Security
issued will be subject to the restrictions on transfer enumerated in the
Securities Act Legend printed on the Initial Global Securities and in the
Indenture and the Securities Act.
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This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuers.
-----------------------------------
[Insert Name of Holder]
By: ______________________________
Name:
Title:
Dated: __________________
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