TRISM, INC., as Issuer
AND
THE GUARANTORS
AND
____________________, as Trustee
INDENTURE
Dated as of _________, 1999
---------------------
$30,000,000
12% Senior Subordinated Notes Due 2004
CROSS-REFERENCE TABLE
TIA Section Indenture Section
310 (a) (1)................................................................7.10
(a) (2)....................................................................7.10
(a) (3)....................................................................N.A.
(a) (4)....................................................................N.A.
(a) (5)....................................................................7.10
(b)...........................................................7.08; 7.10; 13.02
(c)........................................................................N.A.
311 (a)....................................................................7.11
(b)........................................................................7.11
(c)........................................................................N.A.
312 (a)....................................................................2.05
(b).......................................................................13.03
(c).......................................................................13.03
313 (a)....................................................................7.06
(b) (1)....................................................................N.A.
(b) (2)..............................................................7.06; 7.07
(c).................................................................7.06; 13.02
(d)........................................................................7.06
314 (a).......................................................4.08; 4.10; 13.02
(b)........................................................................N/A
(c) (1).............................................................7.02; 13.04
(c) (2).............................................................7.02; 13.04
(c) (3)....................................................................N.A.
(d)........................................................................N.A.
(e).......................................................................13.05
(f)........................................................................N.A.
315 (a).................................................................7.01(b)
(b)........................................................................7.05
(c).....................................................................7.01(a)
(d)............................................................7.01(c); 7.01(d)
(e)........................................................................6.11
316(a) (last sentence).....................................................2.09
(a) (1) (A)................................................................6.05
(a) (1) (B)................................................................6.04
(a) (2)....................................................................N.A.
(b)........................................................................6.07
(c).......................................................................13.06
317 (a) (1)................................................................6.08
(a) (2)....................................................................6.09
(b)........................................................................2.04
318 (a)...................................................................13.01
(c).......................................................................13.01
------------------------------
N.A. means Not Applicable
NOTE:This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
i
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE.............1
SECTION 1.01 Definitions............................................1
SECTION 1.02 Incorporation by Reference of TIA.....................17
SECTION 1.03 Rules of Construction.................................18
ARTICLE TWO THE SENIOR SUBORDINATED NOTES.........................18
SECTION 2.01 Form and Dating.......................................18
SECTION 2.02 Execution and Authentication..........................19
SECTION 2.03 Registrar and Paying Agent............................19
SECTION 2.04 Paying Agent to Hold Assets in Trust..................20
SECTION 2.05 Securityholder Lists..................................20
SECTION 2.06 Transfer and Exchange.................................21
SECTION 2.07 Replacement Senior Subordinated Notes.................21
SECTION 2.08 Outstanding Senior Subordinated Notes.................21
SECTION 2.09 Treasury Senior Subordinated Notes....................22
SECTION 2.10 Temporary Senior Subordinated Notes...................22
SECTION 2.11 Cancellation..........................................22
SECTION 2.12 Defaulted Interest....................................23
SECTION 2.13 CUSIP Number..........................................23
ARTICLE THREE REDEMPTION............................................23
SECTION 3.01 Notices to Trustee....................................23
SECTION 3.02 Selection of Senior Subordinated Notes to Be
Redeemed..............................................24
SECTION 3.03 Notice of Redemption..................................24
SECTION 3.04 Effect of Notice of Redemption........................25
SECTION 3.05 Deposit of Redemption Price...........................25
SECTION 3.06 Senior Subordinated Notes Redeemed in Part............25
SECTION 3.07 Optional Redemption...................................25
SECTION 3.08 Mandatory Purchase Upon Asset Sale....................26
ARTICLE FOUR COVENANTS.............................................26
SECTION 4.01 Payment of Senior Subordinated Notes..................26
SECTION 4.02 Maintenance of Office or Agency.......................26
SECTION 4.03 Limitation on Restricted Payments.....................26
SECTION 4.04 Minimum Net Worth.....................................26
SECTION 4.05 Corporate Existence...................................27
SECTION 4.06 Payment of Taxes and Other Claims.....................27
SECTION 4.07 Maintenance of Properties and Insurance...............28
SECTION 4.08 Compliance Certificate; Notice of Default.............28
SECTION 4.09 Compliance with Laws..................................29
SECTION 4.10 Commission Reports....................................29
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SECTION 4.11 Waiver of Stay, Extension or Usury Laws...............30
SECTION 4.12 Limitation on Transactions with Affiliates............30
SECTION 4.13 Limitation on Incurrences of Additional
Indebtedness..........................................30
SECTION 4.14 Limitation on Payment Restrictions Affecting
Subsidiaries..........................................32
SECTION 4.15 Limitation on Liens...................................32
SECTION 4.16 Restrictions on Sale and Ownership of Subsidiaries....32
SECTION 4.17 Payments for Consent..................................33
SECTION 4.18 Limitation on Asset Sales.............................33
SECTION 4.19 Guarantees by Subsidiaries............................35
SECTION 4.20 Listing on Securities Exchange........................35
SECTION 4.21 Subsidiaries..........................................35
SECTION 4.22 Prohibition on Company and Guarantors Becoming an
Investment Company....................................35
SECTION 4.23 Maintenance Capital Expenditures......................35
SECTION 4.24 Line of Business......................................36
SECTION 4.25 Limitation on Issuance of Other Subordinated
Indebtedness Senior to the Senior Subordinated
Notes.................................................36
SECTION 4.26 Limitation of Guarantees by Subsidiaries..............36
ARTICLE FIVE SUCCESSOR CORPORATION.................................37
SECTION 5.01 Limitation on Merger, Etc.............................37
SECTION 5.02 Successor Corporation Substituted.....................39
ARTICLE SIX DEFAULT AND REMEDIES..................................39
SECTION 6.01 Events of Default.....................................39
SECTION 6.02 Acceleration..........................................41
SECTION 6.03 Other Remedies........................................42
SECTION 6.04 Waiver of Past Defaults...............................42
SECTION 6.05 Control by Majority...................................43
SECTION 6.06 Limitation on Suits...................................43
SECTION 6.07 Rights of Holders to Receive Payment..................43
SECTION 6.08 Collection Suit by Trustee............................44
SECTION 6.09 Trustee May File Proofs of Claim......................44
SECTION 6.10 Priorities............................................44
SECTION 6.11 Undertaking for Costs.................................45
SECTION 6.12 Event of Default from Willful Action..................45
SECTION 6.13 Rights and Remedies Cumulative........................45
SECTION 6.14 Delay or Omission Not Waiver..........................45
ARTICLE SEVEN TRUSTEE...............................................46
SECTION 7.01 Duties of Trustee.....................................46
SECTION 7.02 Rights of Trustee.....................................47
SECTION 7.03 Individual Rights of Trustee..........................48
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SECTION 7.04 Trustee's Disclaimer..................................48
SECTION 7.05 Notice of Default.....................................48
SECTION 7.06 Reports by Trustee to Holders.........................48
SECTION 7.07 Compensation and Indemnity............................49
SECTION 7.08 Replacement of Trustee................................49
SECTION 7.09 Successor Trustee by Merger, Etc......................50
SECTION 7.10 Eligibility; Disqualification.........................50
SECTION 7.11 Preferential Collection of Claims Against the
Company...............................................51
ARTICLE EIGHT SUBORDINATION.........................................51
SECTION 8.01 Senior Subordinated Notes Subordinate to Senior
Indebtedness..........................................51
SECTION 8.02 Payment Over of Proceeds Upon Dissolution, Etc........51
SECTION 8.03 Suspension of Payment When Senior Indebtedness
in Default............................................52
SECTION 8.04 Payment Permitted if No Default.......................53
SECTION 8.05 Subrogation to Rights of Holders of Senior
Indebtedness..........................................54
SECTION 8.06 Provisions Solely to Define Relative Rights...........54
SECTION 8.07 Trustee to Effectuate Subordination Provisions........54
SECTION 8.08 No Waiver of Subordination Provisions.................55
SECTION 8.09 Notice to Trustee.....................................55
SECTION 8.10 Reliance on Judicial Order or Certificate of
Liquidating Agent.....................................56
SECTION 8.11 Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights........56
SECTION 8.12 Article Applicable to Paying Agents...................57
SECTION 8.13 No Suspension of Remedies.............................57
SECTION 8.14 Trustee's Relation to Senior Indebtedness.............57
ARTICLE NINE LEGAL DEFEASANCE AND COVENANT DEFEASANCE..............57
SECTION 9.01 Option to Effect Legal Defeasance or
Covenant Defeasance...................................57
SECTION 9.02 Legal Defeasance and Discharge........................57
SECTION 9.03 Covenant Defeasance...................................58
SECTION 9.04 Conditions to Legal or Covenant Defeasance............58
SECTION 9.05 Deposited U.S. Legal Tender and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions..............................60
SECTION 9.06 Repayment to the Company..............................61
SECTION 9.07 Reinstatement.........................................61
ARTICLE TEN AMENDMENTS, SUPPLEMENTS AND WAIVER....................61
SECTION 10.01 Without Consent of Holders of Senior
Subordinated Notes....................................61
SECTION 10.02 With Consent of Holders of Senior Subordinated
Notes.................................................62
SECTION 10.03 Effect of Supplemental Indentures.....................64
SECTION 10.04 Compliance with TIA...................................65
SECTION 10.05 Revocation and Effect of Consents.....................65
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SECTION 10.06 Notation on or Exchange of Senior Subordinated
Notes.................................................65
SECTION 10.07 Trustee to Sign Supplemental Indentures...............66
ARTICLE ELEVEN MEETINGS OF SECURITYHOLDERS...........................67
SECTION 11.01 Purposes for Which Meetings May Be Called.............67
SECTION 11.02 Manner of Calling Meetings............................67
SECTION 11.03 Call of Meetings by the Company or Holders............67
SECTION 11.04 Who May Attend and Vote at Meetings...................68
SECTION 11.05 Regulations May Be Made by Trustee; Conduct of
the Meeting; Voting Rights; Adjournment...............68
SECTION 11.06 Voting at the Meeting and Record to Be Kept...........69
SECTION 11.07 Exercise of Rights of Trustee or Securityholders
May Not Be Hindered or Delayed by Call of Meeting.....69
ARTICLE TWELVE GUARANTEE OF SENIOR SUBORDINATED NOTES................69
SECTION 12.01 Unconditional Guarantee...............................69
SECTION 12.02 Seniority of Guarantee................................71
SECTION 12.03 Severability..........................................71
SECTION 12.04 Release of a Guarantor................................71
SECTION 12.05 Limitation of Guarantor's Liability...................71
SECTION 12.06 Guarantors May Consolidate, etc., on Certain Terms....71
SECTION 12.07 Contribution..........................................72
SECTION 12.08 Waiver of Subrogation.................................73
SECTION 12.09 Subordination of Guarantee............................73
SECTION 12.10 Execution of Guarantee................................73
SECTION 12.11 Guarantee Unconditional, Etc..........................74
SECTION 12.12 Additional Guarantors.................................75
SECTION 12.13 Waiver of Stay, Extension or Usury Laws...............75
ARTICLE THIRTEEN MISCELLANEOUS.........................................75
SECTION 13.01 TIA Controls..........................................75
SECTION 13.02 Notices...............................................75
SECTION 13.03 Communications by Holders with Other Holders..........76
SECTION 13.04 Certificate and Opinion as to Conditions Precedent....77
SECTION 13.05 Statements Required in a Certificate or Opinion.......77
SECTION 13.06 Acts of Holders.......................................78
SECTION 13.07 Rules by Trustee and Agents...........................79
SECTION 13.08 Legal Holidays........................................79
SECTION 13.09 Governing Law.........................................79
SECTION 13.10 Agent for Service; Submission to Jurisdiction;
Waiver of Immunities..................................80
SECTION 13.11 No Adverse Interpretation of Other Agreements.........80
SECTION 13.12 No Recourse Against Others............................81
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SECTION 13.13 Successors............................................81
SECTION 13.14 Counterpart Originals.................................81
SECTION 13.15 Severability..........................................81
SECTION 13.16 Table of Contents, Headings, Etc......................81
EXHIBITS AND SCHEDULES
EXHIBIT A - FORM OF SENIOR NOTE.........................................A-1
EXHIBIT B - CERTAIN CAPITALIZED LEASE OBLIGATIONS AND SECURED
INDEBTEDNESS................................................B-1
EXHIBIT C - CERTAIN UNSECURED INDEBTEDNESS..............................C-1
EXHIBIT D - FORM OF REGISTRATION RIGHTS AGREEMENT.......................D-1
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART OF
THE INDENTURE.
vi
INDENTURE dated as of _______, 1999 among TRISM, INC., a Delaware
corporation (the "Company"), the GUARANTORS (as defined below), and
________________, as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 12% Senior
Subordinated Notes Due 2004 in the form attached hereto as Exhibit A, and, to
provide therefor, the Company has duly authorized the execution and delivery of
this Indenture. The Senior Subordinated Notes will be jointly and severally
guaranteed, on an unconditional senior unsecured basis as provided herein, by
the Guarantors (as defined below). All things necessary to make the Senior
Subordinated Notes, when duly --------- issued and executed by the Company and
the Guarantors, and authenticated and delivered hereunder, the valid obligations
of the Company and the Guarantors and to make this Indenture a valid and binding
agreement of the Company and the Guarantors, have been done. Each party hereto
agrees as follows for the benefit of each other party and for the equal and
ratable benefit of the Holders of the Company's 12% Senior Subordinated Notes
due 2004:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
------------
For all purposes of this Indenture, except as otherwise provided or
unless the context otherwise requires:
"ADJUSTED NET ASSETS" of a Person at any date shall mean the lesser of
the amount by which (i) the fair value of the property of such Person exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date and calculated in accordance with the
definition of Indebtedness), but excluding liabilities under the Guarantee, of
such Person at such date and (ii) the present fair salable value of the assets
of such Person at such date exceeds the amount that will be required to pay the
probable liability of such Person on its debts (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date and after
giving effect to any collection from any Subsidiary of such Person in respect of
the obligations of such Subsidiary under the Guarantee), excluding debt in
respect of the Guarantee, as they become absolute and matured.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"affiliated," "controlling" and " controlled" have meanings correlative to the
foregoing. For purposes of Section 4.12 hereof, the term "Affiliate" shall
include any Person who, as a result of any transaction described therein, would
become an Affiliate.
"AFFILIATE TRANSACTION" shall have the meaning provided in Section
4.12.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"ASSET SALE" means the Disposition by the Company or any Subsidiary to
any Person other than the Company or a Guarantor, in one transaction, or a
series of related transactions, of (i) any Capital Stock of any Subsidiary
(except for directors' qualifying shares or certain minority interests sold to
other Persons solely due to local law requirements that there be more than one
stockholder, but which are not in excess of what is required for such purpose),
or (ii) any other Property or assets of the Company or any Subsidiary, other
than (A) sales of obsolete or worn out equipment in the ordinary course of
business or other assets that, in the Company's reasonable judgment, are no
longer used or useful in the conduct of the business of the Company and its
Subsidiaries), (B) any sale or lease of Property or other assets entered into by
the Company or any Subsidiary in the ordinary course of business, other than any
Bargain Purchase Contract, (C) a payment permitted under Section 4.14, and (D) a
consolidation or merger or any transfer of assets (including pursuant to a Plan
of Liquidation) in compliance with the provision herein described in Article
Five. An Asset Sale shall include the requisition of title to, seizure of or
forfeiture of any Property or assets, or any actual or constructive total loss
or an agreed or compromised total loss of any Property or assets.
Notwithstanding the provisions of sub-clauses (A) and (B) of clause (ii) of this
definition, an Asset Sale shall include the Disposition by the Company or any
Subsidiary to any Person other than the Company or a Guarantor, in one
transaction, or a series of related transactions, of any tractors, trailers,
vans or other equipment used by the Company or any of its Subsidiaries in the
operation of the TRISM Business, unless the Net Cash Proceeds so received by the
Company or such Subsidiary are applied by the Company or such Subsidiary, within
one year of the date of such Disposition, toward the acquisition of tractors,
trailers, vans or other equipment that replace the properties that were the
subject of such Disposition.
"ASSET SALE CLOSING DATE" shall have the meaning provided in Section
4.18.
"ATTRIBUTABLE INDEBTEDNESS" in respect of a Sale and Lease-Back
Transaction means, at any date of determination, the present value (discounted
at the interest rate borne by the Senior Subordinated Notes, compounded
annually) of the total obligations of the lessee for rental payments during the
remaining term of the lease (or to the first date on which the lessee is
permitted to terminate such lease without the payment of a penalty) included in
such Sale and Lease-Back Transaction (including any period for which such lease
has been extended).
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"BARGAIN PURCHASE CONTRACT" means a lease that provides for
acquisition of the Property subject thereto by the other party to such agreement
during or at the end of the term thereof for less than the Fair Market Value
thereof at the time such right to acquire such Property is granted.
2
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors (or Persons serving an analogous function) of such Person or any
committee of the Board of Directors (or Persons serving an analogous function)
of such Person duly authorized, with respect to any particular matter, to
exercise the power of the Board of Directors (or such analogous Persons) of such
Person.
"BOARD RESOLUTION" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY" means a day that is not a Saturday, Sunday or a day on
which banking institutions in New York City are not required to be open.
"CAPITAL EXPENDITURE" means any expenditure that is properly
classified as a capital expenditure in accordance with GAAP, including without
limitation, all such expenditures associated with Capitalized Lease Obligations.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock, including each class of common stock and preferred stock of such Person,
including Preferred Stock, or any option, warrant or other security convertible
into or exchangeable for any of the foregoing.
"CAPITALIZED LEASE OBLIGATION" means obligations under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of Indebtedness represented by such obligations shall be
the capitalized amount of such obligations determined in accordance with GAAP.
"CASH EQUIVALENTS" means (i) obligations issued or unconditionally
guaranteed by the United States of America or any agency thereof, or obligations
issued by any agency or instrumentality thereof and backed by the full faith and
credit of the United States of America, (ii) commercial paper rated the highest
grade by Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Service
and maturing not more than one year from the date of creation thereof, (iii)
time deposits with, and certificates of deposit and banker's acceptances issued
by, any bank having capital surplus and undivided profits aggregating at least
$500 million and maturing not more than one year from the date of creation
thereof, (iv) repurchase agreements with a term of not more than seven days that
are secured by a perfected security interest in an obligation described in
clause (i) and are with any bank described in clause (iii), and (v) readily
marketable direct obligations issued by any state of the United States of
America or any political subdivision thereof having one of the two highest
rating categories obtainable from either Xxxxx'x Investors Service, Inc. or
Standard & Poor's Ratings Service.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means TRISM, Inc., a Delaware corporation, until a successor
replaces it pursuant to this Indenture and thereafter means such successor.
3
"CONSOLIDATED ASSETS" means, with respect to any Person, as of any
date, the aggregate assets of such Person and its Subsidiaries on a consolidated
basis, each item determined in accordance with GAAP.
"CONSOLIDATED LIABILITIES" means, with respect to any Person, as of
any date, the aggregate liabilities of such Person and its Subsidiaries on a
consolidated basis, each item determined in accordance with GAAP.
"CONSOLIDATED INCOME TAX EXPENSE" means for any period, as applied to
the Company, the provision for federal, state, local or foreign income taxes of
the Company and its Consolidated Subsidiaries for such period as determined in
accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, without duplication, for any
period, as applied to the Company, the sum of (a) the interest expense of the
Company and its Consolidated Subsidiaries for such period as determined in
accordance with GAAP including, without limitation, (i) amortization of debt
discount, (ii) the net cost under Interest Swap Obligations (including
amortization of discounts), (iii) the interest portion of any deferred payment
obligation, (iv) accrued interest, (v) noncash interest payments and (vi)
commissions, discounts, and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, plus (b) the interest portion of
Capitalized Lease Obligations paid or accrued by the Company and its
Consolidated Subsidiaries, plus (c) amortization of capitalized interest, plus
(d) dividends in respect of Preferred Stock of the Company or any Subsidiary
held by Persons other than the Company or a Wholly Owned Subsidiary.
"CONSOLIDATED NET INCOME (LOSS)" means, for any period, the
Consolidated net income (or loss) of the Company and its Consolidated
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such net income (or loss), by excluding
without duplication (i) all extraordinary gains or losses; (ii) any net income
of any Person if such Person is not a Subsidiary, in which the Company or any of
its Subsidiaries has an interest, except to the extent of the amount of any
dividends or distributions actually paid in cash to the Company or a Subsidiary
of the Company during such period, but not in excess of the Company's pro rata
share of such Person's net income (or loss) subsequent to the Issue Date; (iii)
net income (or loss) of any Person combined with the Company or any of its
Subsidiaries in a "pooling of interests" basis attributable to any period prior
to the date of combination; (iv) any gain or loss, net of taxes, realized upon
the termination of any employee pension benefit plan; (v) net gains or losses in
respect of dispositions of assets other than in the ordinary course of business;
(vi) the net income of any Subsidiary to the extent that the declaration of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulations applicable to that Subsidiary or its shareholders.
"CONSOLIDATED RENTAL PAYMENTS" of any Person means, for any period,
the aggregate rental obligations of such Person and its Consolidated
Subsidiaries (not including taxes, insurance, maintenance and similar expenses
that the lessee is obligated to pay under the terms of the relevant leases),
determined on a Consolidated basis in accordance with
4
GAAP, payable in respect of such period (net of income from subleases thereof,
not including taxes, insurance, maintenance and similar expenses that the
sublessee is obligated to pay under the terms of such sublease), whether or not
such obligations are reflected as liabilities or commitments on a Consolidated
balance sheet of such Person and its Subsidiaries or in the notes thereto,
excluding, however, in any event, (i) that portion of Consolidated Interest
Expense of such Person representing payments by such Person or any of its
Consolidated Subsidiaries in respect of Capitalized Lease Obligations (net of
payments to such Person or any of its Consolidated Subsidiaries under subleases
qualifying as capitalized lease subleases to the extent that such payments would
be deducted in determining Consolidated Interest Expense) and (ii) the aggregate
amount of amortization of obligations of such Person and its Consolidated
Subsidiaries in respect of such Capitalized Lease Obligations for such period
(net of payments to such Person or any of its Consolidated Subsidiaries and
subleases qualifying as capitalized lease subleases to the extent that such
payments could be deducted in determining such amortization amount).
"CONSOLIDATION" means, with respect to any Person, the consolidation
of the accounts of such Person and each of its subsidiaries if and to the extent
the accounts of such Person and each of its subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP. The term
"Consolidated" shall have a similar meaning.
"COVENANT DEFAULT" means any event (other than a Payment Default) the
occurrence of which entitles one or more Persons to accelerate the maturity of
any Designated Senior Indebtedness.
"CURRENCY HEDGE OBLIGATIONS" means, at any time as to any Person, the
obligations of such Person at such time which were incurred in the ordinary
course of business pursuant to any foreign currency exchange agreement, option
or future contract or other similar agreement or arrangement designed to protect
against or manage such Person's or any of its subsidiaries' exposure to
fluctuations in foreign currency exchange rates.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEFICIENCY CORRECTION DATE" shall have the meaning provided in
Section 4.04.
"DESIGNATED SENIOR INDEBTEDNESS" means: (i) so long as any amount is
outstanding or any commitment remains in effect under the Senior Secured Credit
Facility, all Indebtedness under the Senior Secured Credit Facility; and (ii)
any other Senior Indebtedness which, at the time of determination, has an
aggregate principal amount outstanding of, and/or any commitments to lend up to,
at least $_____ million and is specifically designated in the instrument
evidencing such Senior Indebtedness as "Designated Senior Indebtedness" by the
Company, provided that any such other Senior Indebtedness has been incurred with
the approval of the Board of Directors of the Company, such approval to be
evidenced by a Board Resolution.
5
"DISPOSITION" means any direct or indirect sale, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger or
consolidation or by means of a Sale and Lease-Back Transaction).
"DISQUALIFIED CAPITAL STOCK" means, with respect to any Person, any
Capital Stock or Partnership Interest of such Person that, by its terms, by the
terms of any agreement related thereto or by the terms of any security into
which it is convertible, puttable or exchangeable, is, or upon the happening of
an event or the passage of time would be, required to be redeemed or repurchased
by such Person or its Subsidiaries, including at the option of the holder, in
whole or in part, or matures or has, or upon the happening of an event or
passage of time would have, a redemption or similar payment due, in each
instance on or prior to one year following the Maturity Date, in cash or
securities constituting Indebtedness.
"EVENT OF DEFAULT" shall have the meaning provided in Section 6.01.
"EXCESS PROCEEDS" shall have the meaning provided in Section 4.18.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"FAIR MARKET VALUE" means, with respect to consideration received or
to be received pursuant to any transaction by any Person, the price which could
be negotiated in an arm's length free market transaction, for cash, between a
willing seller and a willing buyer, neither of whom is under undue pressure or
compulsion to complete the transaction, as determined in good faith by the Board
of Directors of the Company.
"FIXED CHARGE COVERAGE RATIO" means for any period the ratio of (a)
the sum of Consolidated Net Income (Loss), Consolidated Interest Expense,
one-third of Consolidated Rental Payments, and Consolidated Income Tax Expense
plus, without duplication, all depreciation, amortization and all other noncash
charges (excluding any such noncash charge constituting an extraordinary item of
loss or any noncash charge which requires an accrual of or a reserve for cash
charges for any future period), in each case, for such period, of the Company
and its Subsidiaries on a Consolidated basis, all determined in accordance with
GAAP to (b) Consolidated Interest Expense and one-third of Consolidated Rental
Payments for such period; provided that in making such computation, the
Consolidated Interest Expense attributable to interest on any Indebtedness
computed on a pro forma basis and bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been the
applicable rate for the entire period.
"GAAP" means at any date, United States generally accepted accounting
principles, consistently applied, as set forth in the opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants
("AICPA") and statements of the Financial Accounting Standards Board, or in such
other statements by such other entity as may be designated by the AICPA, that
are applicable to the circumstances as of the date of determination; provided,
however, that all calculations made for purposes of determining compliance with
the provisions set forth herein shall utilize GAAP in effect at the Issue Date.
6
"GUARANTEE" means the Guarantee set forth in Article Twelve and any
additional guarantee of Senior Subordinated Notes.
"GUARANTOR" means (i) as of the Issue Date, the Initial Guarantors,
and (ii) thereafter, unless released from the Guarantee as permitted by this
Indenture, the Initial Guarantors and any other Person that becomes a guarantor
of the Senior Subordinated Notes in compliance with the provisions of this
Indenture and executes a supplemental indenture agreeing to be bound by the
terms of this Indenture.
"GUARANTOR SENIOR INDEBTEDNESS" means, with respect to any Guarantor,
the principal of, premium, if any, and interest (including interest to the
extent allowable, accruing after the filing of a petition initiating any
proceeding under any state, federal or foreign bankruptcy laws) of any
Indebtedness of such Guarantor (other than as otherwise provided in this
definition), whether outstanding on the Issue Date or thereafter, created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Guarantee of such Guarantor. Notwithstanding the
foregoing, "Guarantor Senior Indebtedness" does not include (i) Indebtedness
evidenced by the Guarantee of such Guarantor, (ii) Indebtedness that is
subordinate or junior in right of payment to any Indebtedness of such Guarantor,
(iii) Indebtedness which when incurred and without respect to any election under
Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse to such
Guarantor, (iv) Indebtedness which is represented by Redeemable Capital Stock,
(v) any liability for federal, state, local or other taxes owed or owing by such
Guarantor, (vi) any accounts payable to trade creditors created, incurred, or
assumed by such Guarantor in the ordinary course of business in connection with
obtaining goods, materials or services, (vii) Indebtedness of such Guarantor to
a Subsidiary of the Company, (viii) amounts payable on any Indebtedness to any
employee or Affiliate of such Guarantor other than as provided in clause (vii)
(except for any Indebtedness evidenced by any debt securities of such Guarantor
purchased by such employee or Affiliate after such debt securities have been
registered under the Securities Act, provided that such debt securities rank
senior in right of payment to the Guarantee of such Guarantor and the issuance
of the securities was permitted by the covenant described in Section 4.13, (ix)
that portion of any Indebtedness which is issued by such Guarantor in violation
of this Indenture, provided, however, that in the case of the preceding clause
(ix), any Indebtedness issued to any Person who had no actual knowledge that the
incurrence of such Indebtedness was not permitted under Section 4.13 and who
received on the date of issuance thereof a certificate from an officer of the
Company to the effect that the issuance of such Indebtedness would not violate
such Section shall constitute Guarantor Senior Indebtedness and (x) Indebtedness
of such Guarantor representing a guarantee of Subordinated Indebtedness of the
Company or any other Guarantor, or a guarantee of Indebtedness that ranks pari
passu with the Senior Subordinated Notes.
"HOLDER" or "SECURITYHOLDER" means the Person in whose name a Senior
Note is registered on the Registrar's books.
"INDEBTEDNESS" as applied to any Person means, at any time, without
duplication, whether recourse is to all or a portion of the assets of such
Person, and whether or
7
not contingent: (i) any obligation of such Person for borrowed money; (ii) any
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including, without limitation, any such obligations incurred in
connection with acquisition of Property, assets or businesses, excluding
accounts payable made in the ordinary course of business which are not more than
90 days overdue or which are being contested in good faith and by appropriate
proceedings; (iii) any obligation of such Person for all or any part of the
purchase price of Property or assets or for the cost of Property constructed or
of improvements thereto (including any obligation under or in connection with
any letter of credit related thereto), other than accounts payable incurred in
respect of Property and services purchased in the ordinary course of business
which are no more than 90 days overdue or which are being contested in good
faith and by appropriate proceedings; (iv) any obligation of such Person upon
which interest charges are customarily paid (other than accounts payable
incurred in the ordinary course of business); (v) any obligation of such Person
under conditional sale or other title retention agreements relating to purchased
Property; (vi) any obligation of such Person issued or assumed as the deferred
purchase price of Property or assets (other than accounts payable incurred in
the ordinary course of business which are no more than 90 days overdue or which
are being contested in good faith and by appropriate proceedings); (vii) any
Capital Lease Obligation or Attributable Indebtedness pursuant to any Sale and
Lease-Back Transaction of such Person; (viii) any obligation secured by (or for
which the obligee thereof has an existing right, contingent or otherwise, to be
secured by) any Lien on Property owned or acquired, whether or not any
obligation secured thereby has been assumed, by such Person; (ix) any obligation
of such Person in respect of any letter of credit supporting any obligation of
any other Person; (x) the maximum fixed repurchase price of any Disqualified
Capital Stock of such Person (or if such Person is a subsidiary, any Preferred
Stock of such Person); (xi) the notional amount of any Interest Swap Obligation
or Currency Hedge Obligation of such Person at the time of determination; and
(xii) any obligation which is in economic effect a guarantee, regardless of its
characterization (other than an endorsement in the ordinary course of business),
with respect to any Indebtedness of another Person, to the extent guaranteed.
For purposes of the preceding sentence, the maximum fixed repurchase price of
any Disqualified Capital Stock or subsidiary Preferred Stock that does not have
a fixed repurchase price shall be calculated in accordance with the terms of
such Disqualified Capital Stock or subsidiary Preferred Stock as if such
Disqualified Capital Stock or subsidiary Preferred Stock were repurchased on any
date on which Indebtedness shall be required to be determined pursuant to this
Indenture; provided that if such Disqualified Capital Stock or subsidiary
Preferred Stock is not then permitted to be repurchased, the repurchase price
shall be the book value of such Disqualified Capital Stock or subsidiary
Preferred Stock. The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability of any guarantees at such date;
provided, further, that for purposes of calculating the amount of any
non-interest bearing or other discount security, such Indebtedness shall be
deemed to be the principal amount thereof that would be shown on the balance
sheet of the issuer dated such date prepared in accordance with GAAP but that
such security shall be deemed to have been incurred only on the date of the
original issuance thereof.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
8
"INDEPENDENT FINANCIAL ADVISOR" means [____________________] or any
successor thereto; provided, however, that if [____________________] or any
successor thereto shall not be reasonably available to perform the function
called for by this Indenture, or if the Company and the Holders of at least a
majority in aggregate principal amount of the outstanding Senior Subordinated
Notes so agree, the term "Independent Financial Advisor" shall mean an
investment banking, accounting or appraisal firm of national standing (i) which
does not, and whose directors, officers and employees or Affiliates do not, have
a direct or indirect ownership interest or material direct or indirect financial
interest in the Company or any of its Subsidiaries or Affiliates, provided that
ownership of three percent (3%) or less of the issued and outstanding shares of
Capital Stock of the Company shall not constitute having a direct or indirect
ownership or financial interest in the Company or any of its Subsidiaries or
Affiliates, and (ii) which, in the judgment of the disinterested members of the
Board of Directors of the Company, as evidenced by a Board Resolution, is
independent and qualified to perform the task for which it is to be engaged.
["INITIAL GUARANTORS" means TRISM Secured Transportation, Inc. (f/k/a
Tri-State Motor Transit Co. of Delaware), a Delaware corporation, TRISM Heavy
Haul, Inc. (f/k/a TSMB 2 Acquisition Corporation), a Delaware corporation, TRISM
Maintenance Services, Inc. (f/k/a TRISM Management Services, Inc.), a Delaware
corporation, McGill Special Services, Inc., a Delaware corporation, Tri-State
Motor Transit Co., a Delaware corporation, TRISM Specialized Carriers, Inc., a
Georgia corporation, Aero Body and Truck Equipment, Inc., a Delaware
corporation, Tri-State Transportation Services, Inc., a Missouri corporation,
TRISM Special Services, Inc., a Georgia corporation, Diablo Systems, Inc., a
California corporation, TRISM Eastern, Inc., a Delaware corporation, TRISM
Transport, Inc., a Delaware corporation, TRISM Transport Services, Inc., a Utah
corporation, Transportation Recovery Systems, Inc., a Delaware corporation,
TRISM Logistics, Inc., a New Jersey corporation, and TRISM Equipment, Inc., a
Delaware corporation.]
"INTEREST PAYMENT DATE" means the stated maturity of an installment of
interest on the Senior Subordinated Notes.
"INTEREST SWAP OBLIGATION" means any obligation of any Person pursuant
to any arrangement with any other Person whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount; provided that
the term "Interest Swap Obligation" shall also include interest rate exchange,
collar, cap, swap option or similar agreements providing interest rate
protection.
"INVESTMENT" by any Person means (i) any investment or acquisition by
such Person, in any transaction or series of related transactions, whether by a
purchase of Capital Stock, Partnership Interests or assets, share purchase,
capital contribution, loan, advance (other than (a) reasonable loans and
advances to employees for moving and travel expenses or as salary advances,
incurred, in each case, in the ordinary course of business consistent with past
practice, and (b) trade credit extended to customers in the ordinary course of
business of the Company or any of its Subsidiaries consistent with past practice
and on terms and conditions common in the
9
industry and no less favorable to the Company or such Subsidiary than trade
credit extended by other suppliers similarly situated) or similar credit
extension constituting Indebtedness of another Person, and any guarantee of
Indebtedness of any other Person (other than a guarantee of Indebtedness
incurred under the Senior Secured Credit Facility or this Indenture), and (ii)
any Capital Expenditure. The amount of any Investment shall be the greater of
(A) the Fair Market Value of the assets being transferred, and (B) the gross
amount of assets acquired as a result of such Investment (or in the case of an
Investment in Capital Stock or Partnership Interests issued by another Person,
the appropriate proportion of the gross assets of such other Person).
"ISSUE DATE" means _______________, 1999.
"LENDER" means collectively the lenders and agent under the Senior
Secured Credit Facility.
"LIEN" means any mortgage, pledge, lien, encumbrance, charge or
adverse claim affecting title or resulting in an encumbrance against real or
personal property, or a security interest of any kind (including any lease,
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing, any option or other agreement to
sell which is intended to constitute or create a security interest, mortgage,
pledge or lien (other than bona fide options and agreements for the sale of
assets) and any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"MAINTENANCE CAPITAL EXPENDITURES" means Capital Expenditures directly
related to maintaining, servicing, replacing and upgrading the tractors,
trailers, vans and other equipment used by the Company or any of its
Subsidiaries in the operation of the TRISM Business on the Issue Date, and
specifically excludes Capital Expenditures related to the acquisition of any
other tractors, trailers, vans and other equipment.
"MATURITY DATE" means _________, 2004.
"MINIMUM NET WORTH" means an amount equal to 85% of the Net Worth of
the Company as of the Issue Date.
"NET CASH PROCEEDS" means with respect to any Asset Sale, the proceeds
in the form of cash or Cash Equivalents including payments in respect of
deferred payment obligations when received in the form of cash or Cash
Equivalents received by the Company or any of its Subsidiaries from such Asset
Sale, net of (i) reasonable and customary expenses directly related to such
Asset Sale, (ii) provision for the net amount of all taxes directly payable as a
result of such Asset Sale, and (iii) amounts required to be applied to the
repayment of Indebtedness (other than Indebtedness hereunder, any Indebtedness
specified in Exhibit B that is not secured by the assets that were the subject
of such Asset Sale, or Indebtedness under the Senior Secured Credit Facility)
secured by a Permitted Lien on the assets that were the subject of such Asset
Sale.
"NET PROCEEDS PURCHASE" shall have the meaning provided in Section
4.18.
10
"NET WORTH" as of any date means, with respect to any Person, the
amount of the equity of the holders of Capital Stock of such Person that would
appear on the balance sheet of such Person as of such date, determined in
accordance with GAAP, adjusted to exclude (to the extent included in such
equity) the amount of equity attributable to any Disqualified Capital Stock.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursement obligations, damages and other liabilities
payable under the documentation governing any Indebtedness.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the President, any Vice President, the Chief Administrative Officer, the
Chief Financial Officer, the Controller, or the Secretary of such Person.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of Sections 13.04 and 13.05.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of Sections
13.04 and 13.05. Unless otherwise required by the Trustee, the legal counsel may
be an employee of or counsel to the Company or the Trustee.
"PARTNERSHIP INTEREST" means any general or limited partnership
interest and any interest as a member of a limited liability company, or any
option, warrant or other security convertible into or exchangeable for any of
the foregoing.
"PAYING AGENT" shall have the meaning provided in Section 2.03.
"PAYMENT DEFAULT" means any default in the payment of principal,
premium, if any, or interest on any Senior Indebtedness, beyond any applicable
grace period with respect thereto.
"PAYMENT RESTRICTION" means, with respect to a Subsidiary of any
Person, any encumbrance, restriction or limitation, whether by operation of the
terms of its charter or by reason of any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation, on the ability of (i)
such Subsidiary to (a) pay dividends or make other distributions on its Capital
Stock or Partnership Interests or make payments on any obligation, liability or
Indebtedness owed to such Person or any other Subsidiary of such Person, (b)
make loans or advances to such Person or any other Subsidiary of such Person, or
(c) transfer any of its properties or assets to such Person or any other
Subsidiary of such Person, or (ii) such Person or any other Subsidiary of such
Person to receive or retain any such (a) dividends, distributions or payments,
(b) loans or advances, or (c) transfers of properties or assets.
"PERMITTED BUSINESS INVESTMENT" means any Investment (other than
Maintenance Capital Expenditures) directly related to the TRISM Business, as it
is conducted as
11
of the Issue Date, made by the expenditure of cash or Cash Equivalents (or by
assumption or incurrence of Indebtedness to the extent permitted by Section
4.13(e) hereof); provided, however, that (i) the aggregate of all Permitted
Business Investments in any Yearly Period shall not exceed [$__________] million
(or, in the case of a Yearly Period consisting of less than 365 days, a
proportionally lower amount based upon the number of days in such Yearly
Period), (ii) notwithstanding clause (i) above, any portion of such
[$__________] million (or, if appropriate, such lesser amount) that is not
invested in Permitted Business Investments in such Yearly Period may be carried
forward to subsequent Yearly Periods, and (iii) any Permitted Business
Investment which individually or together with any similar or related Permitted
Business Investments and Permitted Business Investments constituting part of a
common plan or series of transactions involves an Investment of an amount of
[$__________] million or more must be approved by the Board of Directors as
evidenced by a Board Resolution.
"PERMITTED INVESTMENT" by any Person means (i) any Permitted Business
Investment, (ii) cash and Cash Equivalents, (iii) Investments existing on the
Issue Date, (iv) Investments by the Company or any Wholly-owned Subsidiary of
the Company in the Company or any other Wholly-owned Subsidiary of the Company
that is a Guarantor (other than any such Investments which would constitute
Stock Payments or Restricted Debt Prepayments), and (v) Maintenance Capital
Expenditures subject to, and permitted by, Section 4.23.
"PERMITTED JUNIOR SECURITIES" means any securities of the Company or
any other corporation that are equity securities or are subordinated in right of
payment to all Senior Indebtedness, that may at the time be outstanding, to
substantially the same extent as, or to a greater extent than, the Senior
Subordinated Notes are so subordinated as provided in this Indenture.
"PERMITTED LIENS" shall mean (i) Liens for taxes, assessments, and
governmental charges to the extent not required to be paid under this Indenture;
(ii) statutory Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen, or other like Liens arising in the ordinary
course of business and with respect to amounts not yet delinquent or being
contested in good faith by appropriate process of law, and for which a reserve
or other appropriate provision, if any, as shall be required by GAAP shall have
been made; (iii) pledges or deposits in the ordinary course of business to
secure lease obligations or nondelinquent obligations under workers'
compensation, unemployment insurance or similar legislation; (iv) Liens to
secure the performance of public statutory obligations that are not delinquent,
appeal bonds, performance bonds or other obligations of a like nature (other
than for borrowed money); (v) Liens arising under government contracts in the
ordinary course of business that do not secure any Indebtedness; (vi) easements,
rights-of-way, restrictions, minor defects or irregularities in title and other
similar charges or encumbrances not interfering in any material respect with the
business of the Company or any Subsidiary of the Company incurred or arising in
the ordinary course of business; (vii) rights of banks to set off deposits
against debts owed to said banks; (viii) any interest or title of a lessor in
the property subject to any lease, other than any such interest or title
resulting from or arising out of a Default by the Company or any Subsidiary of
the Company of its obligations under such lease; (ix) any other Liens imposed by
operation of law which do not materially affect the Company's or any of its
Subsidiaries' ability to perform its obligations under this Indenture; (x) any
Liens arising under this Indenture,
12
(xi) Liens arising under the Senior Secured Credit Facility; (xii) Liens
existing on the Issue Date securing the Indebtedness described on Exhibit B
hereto; and (xiii) Liens on property of a Person existing at the time such
Person is acquired by, or merged into or consolidated with, the Company or a
Wholly-owned Subsidiary that is a Guarantor if (a) such Liens were in existence
prior to the contemplation of such acquisition, merger or consolidation and do
not extend to any assets other than those directly or indirectly acquired as a
result of such acquisition, merger or consolidation, (b) such acquisition,
merger or consolidation is a Permitted Business Investment hereunder, and (c)
such Liens secure Indebtedness in an aggregate principal amount at any one time
outstanding of less than 75% of the book value of the assets of such Person
immediately prior to such acquisition, merger or consolidation.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"PLAN OF LIQUIDATION" means, with respect to any Person, a plan that
provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise) (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and all
or substantially all of the remaining assets of such Person to holders of
Capital Stock of such Person.
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference Capital Stock or Partnership Interests,
whether outstanding on the date hereof or issued after the date of this
Indenture, and including, without limitation, all classes and series of
preferred or preference stock of such Person.
"PROPERTY" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, excluding Capital Stock in any other Person.
"QUALIFIED CAPITAL STOCK" means, with respect to any Person, any
Capital Stock or Partnership Interest of such Person that is not Disqualified
Capital Stock.
"RECORD DATE" means the Record Dates specified in the Senior
Subordinated Notes, whether or not a Business Day.
"REDEEMABLE CAPITAL STOCK" means any Capital Stock that, (i) either by
its terms, by the terms of any security into which it is convertible or
exchangeable or otherwise, is or upon the happening of any event or passage of
time would be, required to be redeemed (in whole or in part) prior to the final
Stated Maturity of the Senior Subordinated Notes or is redeemable (in whole or
in part) at the option of the holder thereof at any time prior to such final
Stated Maturity, or (ii) is convertible into or exchangeable for debt securities
at any time prior to such final Stated Maturity.
13
"REDEMPTION DATE," when used with respect to any Senior Note to be
redeemed or purchased, means the date fixed for such redemption or purchase
pursuant to this Indenture and the Senior Subordinated Notes.
"REDEMPTION PRICE," when used with respect to any Senior Note to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Senior Subordinated Notes.
"REGISTRAR" shall have the meaning provided in Section 2.03.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of the Issue Date, between the Company and certain Holders,
substantially in the form of Exhibit C attached hereto, as such may be amended,
supplemented or otherwise modified from time to time.
"RESTRICTED DEBT PREPAYMENT" means any principal payment, purchase,
redemption, defeasance (including, but not limited to, in substance or legal
defeasance) or other acquisition or retirement for value, directly or
indirectly, by the Company or any of its Subsidiaries, prior to the scheduled
maturity or prior to any scheduled repayment of principal or sinking fund
payment, as the case may be, on or in respect of Indebtedness the Company or any
of its Subsidiaries that is Subordinated Indebtedness or ranks pari passu in
right of payment to the Senior Subordinated Notes or the Guarantee, as
applicable.
"RESTRICTED PAYMENT" means any (i) Stock Payment, (ii) Investment
(other than a Permitted Investment) or (iii) Restricted Debt Prepayment.
"SALE AND LEASE-BACK TRANSACTION" means, with respect to any Person,
any direct or indirect arrangement pursuant to which Property is sold or
transferred by such Person or a subsidiary of such Person and is thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its subsidiaries.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"SENIOR INDEBTEDNESS" means the principal of, premium, if any, and
interest (including interest, to the extent allowable, accruing after the filing
of a petition initiating any proceeding under any state, federal or foreign
bankruptcy laws) on any Indebtedness of the Company (other than as otherwise
provided in this definition), whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Senior Subordinated Notes.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include (i)
Indebtedness evidenced by the Senior Subordinated Notes or the Guarantees, (ii)
Indebtedness that is subordinate or junior in right of payment to any
Indebtedness of the Company or any Subsidiary, (iii) Indebtedness which when
incurred and without respect to any election under Section 1111(b) of Xxxxx 00,
Xxxxxx Xxxxxx Code, is without recourse to the Company or any Subsidiary, (iv)
Indebtedness which is represented by Redeemable Capital
14
Stock, (v) any liability for federal, state, local, foreign or other taxes owed
or owing by the Company or any Subsidiary, (vi) any accounts payable to trade
creditors created, incurred or assumed by the Company or any Subsidiary of the
Company in the ordinary course of business in connection with obtaining goods,
materials or services, (vii) Indebtedness of the Company to a Subsidiary, (viii)
amounts payable on any Indebtedness to any employee or Affiliate of the Company
other than as provided in clause (vii) (except for any Indebtedness evidenced by
any debt securities of the Company purchased by such employee or Affiliate after
such debt securities have been registered under the Securities Act, provided
that such debt securities rank senior in right of payment to the Senior
Subordinated Notes and the issuance of the securities was permitted by Section
4.13, and (ix) that portion of any Indebtedness which at the time of issuance is
issued in violation of this Indenture; provided, however, that in the case of
this clause (ix), any Indebtedness issued to any Person who had no actual
knowledge that the incurrence of such Indebtedness was not permitted under
Section 4.13 and who received on the date of issuance thereof a certificate from
an officer of the Company to the effect that the issuance of such Indebtedness
would not violate Section 4.13 shall constitute Senior Indebtedness.
"SENIOR REPRESENTATIVE" means the agent bank under the Senior Secured
Credit Facility or any other representatives of the holders of Designated Senior
Indebtedness, as the case may be.
"SENIOR SUBORDINATED NOTES" means the Company's 12% Senior
Subordinated Notes Due 2004, as amended or supplemented from time to time in
accordance with the terms hereof, that are issued pursuant to this Indenture.
"SENIOR SECURED CREDIT FACILITY" means the Senior Secured Loan and
Security Agreement, dated as of ______________, 1999, by and among the Company,
the Subsidiaries of the Company signatories thereto and Lender, together with
the notes, security agreements, guarantees and other documents related thereto,
as the same may be amended, extended, renewed, restated, supplemented or
otherwise modified from time to time, pursuant to which Lender may loan up to
$__________ to the Company, and any agreement governing Indebtedness incurred to
refund or refinance the entirety of the borrowings and commitments then
outstanding or permitted to be outstanding under such Senior Secured Credit
Facility or such agreement.
"STATED MATURITY" when used with respect to any Senior Subordinated
Note or any installment of interest thereon, means the dates specified in such
Senior Subordinated Note as the fixed date on which the principal of such Senior
Subordinated Note or such installment of interest is due and payable, and when
used with respect to any other Indebtedness, means the date specified in the
instrument governing such Indebtedness as the fixed date on which the principal
of such Indebtedness or any installment of interest is due and payable.
"STOCK PAYMENT" means, with respect to any Person, (i) the declaration
or payment by such Person, directly or indirectly, either in cash or in
property, of any dividend on (except, in the case of the Company, dividends
payable solely in Qualified Capital Stock of the
15
Company), or the making by such Person or any of its Subsidiaries of any other
distribution in respect of, such Person's Capital Stock or Partnership Interests
or any warrants, rights or options to purchase or acquire shares of any class of
such Capital Stock or Partnership Interests, or (ii) the redemption, repurchase,
retirement or other acquisition for value by such Person or any of its
Subsidiaries, directly or indirectly, of such Person's or any of its
Subsidiaries' or Affiliates' Capital Stock or Partnership Interests or any
warrants, rights or options to purchase or acquire shares of any class of such
Capital Stock or Partnership Interests other than, in the case of the Company,
through the issuance in exchange therefor solely of Qualified Capital Stock of
the Company; provided, however, that in the case of a Subsidiary of the Company,
the term "Stock Payment" shall not include any such payment with respect to its
Capital Stock or Partnership Interests or warrants, rights or options to
purchase or acquire shares of any class of its Capital Stock or Partnership
Interests if such payment is made to the Company or a Wholly-owned Subsidiary of
the Company that is a Guarantor as of the Issue Date.
"SUBORDINATED INDEBTEDNESS" means (i) Indebtedness of the Company
which is subordinated in right of payment to the Senior Subordinated Notes and
(ii) Indebtedness of any Subsidiary which is subordinated in right of payment to
the Guarantee.
"SUBSIDIARY" means, with respect to any Person, (i) a corporation a
majority of whose Capital Stock with voting power, under ordinary circumstances,
to elect directors is, at the date of determination, directly or indirectly,
owned by such Person, by one or more subsidiaries of such Person or by such
Person and one or more subsidiaries of such Person or (ii) a partnership in
which such Person or a subsidiary of such Person is, at the date of
determination, a general partner of such partnership, or if such Person or its
subsidiary is entitled to receive more than 50% of the assets of such
partnership upon its dissolution, or (iii) any limited liability company or any
other Person (other than a corporation or a partnership) in which such Person, a
subsidiary of such Person or such Person and one or more subsidiaries of such
Person, directly or indirectly, at the date of determination, has (a) at least a
majority ownership interest or (b) the power to elect or direct the election of
a majority of the directors or other governing body of such Person.
"SURVIVING PERSON" shall have the meaning provided in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb), as amended, as in effect on the date of the execution of this
Indenture; provided, however, that, in the event the Trust Indenture Act of 1939
is amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939, as so amended.
"TRISM BUSINESS" means the transportation of extraordinarily heavy or
oversized loads, or cargoes with special handling requirements, such as
munitions, explosives and radioactive and hazardous waste; the provision of
capacity and dedicated fleet management services; the provision of logistic
management services with respect to complex moves and special projects,
including those involving hazardous materials and engineered equipment; and the
provision of intermodal support services to the transportation industry,
including terminal gate inspections and the coordination of terminal
administration, container-yard operations,
16
maintenance and repair administration, rail-terminal operations, chassis-pool
management and asset disposal, as such business is conducted on the Issue Date.
"TRUST OFFICER" means any officer of the Trustee assigned by the
Trustee to administer this Indenture.
"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.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable obligations
of, or non-callable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged. "U.S. LEGAL TENDER" means such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts.
"VOTING STOCK" means with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holder thereof
(whether at all times or at the times that such class of Capital Stock has
voting power by reason of the happening of any contingency) to vote in the
election of members of the Board of Directors or comparable body of such Person.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary of a specified Person all
of the shares of Capital Stock, or, if applicable, all of the Partnership
Interests, of which (other than directors' qualifying shares) are at the time
directly or indirectly owned by the specified Person or owned by a Wholly-owned
Subsidiary of the specified Person.
"YEARLY PERIOD" means each fiscal year (consisting of not less than
four fiscal quarters) of the Company; provided that the first Yearly Period
shall begin on the Issue Date and shall end on December 31, 1999, and the last
Yearly Period shall begin on the first day of the applicable fiscal year and
shall end on the Maturity Date.
SECTION 1.02 Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Senior Subordinated Notes.
"indenture security holder" means a Holder of a Senior Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
17
"obligor" on the indenture securities means the Company, any
Guarantor, or any other obligor on the Senior Subordinated Notes or the
Guarantee.
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 1.03 Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein", "hereof", "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(7) "including" is not intended to be a limiting term;
(8) references to sections of or rules under the Securities Act
or the Exchange Act shall be deemed to include substitute, replacement
or successor sections or rules adopted by the Commission from time to
time; and
(9) all references to amounts of money or $ mean U.S. Dollars.
ARTICLE TWO
THE SENIOR SUBORDINATED NOTES
SECTION 2.01 Form and Dating.
----------------
The Senior Subordinated Notes, the notations thereon relating to the
Guarantee and the Trustee's certificate of authentication shall be substantially
in the form of Exhibit A. The Senior Subordinated Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company and the Trustee shall approve the form of the Senior Subordinated Notes
and any notation, legend or endorsement on them. Each Senior Note shall be dated
the date of its authentication.
18
The terms and provisions contained in the Senior Subordinated Notes
and the notation of guarantee shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
SECTION 2.02 Execution and Authentication.
-----------------------------
Two Officers, or an Officer and an Assistant Secretary, shall sign, or
one Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Senior Subordinated Notes for the Company by
manual or facsimile signature. Each Guarantor shall execute the notation of
guarantee in the manner set forth in Section 12.09.
If an Officer whose signature is on a Senior Note was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Senior Note, the Senior Note shall be valid
nevertheless.
A Senior Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Senior Note. The
signature shall be conclusive evidence that the Senior Note has been
authenticated under this Indenture.
The Trustee shall authenticate on the Issue Date, Senior Subordinated
Notes for original issue in the aggregate principal amount of up to $30,000,000,
upon a written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of Senior Subordinated Notes to
be authenticated and the date on which the Senior Subordinated Notes are to be
authenticated. The aggregate principal amount of Senior Subordinated Notes
outstanding at any time may not exceed $30,000,000, except as provided in
Section 2.07. Upon the written order of the Company in the form of an Officers'
Certificate, the Trustee shall authenticate Senior Subordinated Notes in
substitution of Senior Subordinated Notes originally issued to reflect any name
change of the Company.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Senior Subordinated Notes. Unless otherwise
provided in the appointment, an authenticating agent may authenticate Senior
Subordinated Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Company and Affiliates of the Company.
The Senior Subordinated Notes shall be issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.03 Registrar and Paying Agent.
---------------------------
The Company shall maintain an office or agency in New York, New York
where (a) Senior Subordinated Notes may be presented or surrendered for
registration of transfer or for exchange ("Registrar"), (b) Senior Subordinated
Notes may be presented or surrendered for
19
payment ("Paying Agent") and (c) notices and demands to or upon the Company in
respect of the Senior Subordinated Notes and this Indenture may be served. The
Company may also from time to time designate one or more other offices or
agencies where the Senior Subordinated Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in New
York, New York for such purposes. The Company may act as its own Registrar or
Paying Agent, except that for the purposes of Articles Three and Nine and
Section 4.18, neither the Company nor any of its Subsidiaries or Affiliates
shall act as Paying Agent. The Registrar shall keep a register of the Senior
Subordinated Notes and of their transfer and exchange. The Company, upon notice
to the Trustee, may have one or more co-Registrars and one or more additional
paying agents reasonably acceptable to the Trustee. The term "Paying Agent"
includes any additional paying agent. The Company initially appoints the Trustee
as Registrar and Paying Agent until such time as the Trustee has resigned or a
successor has been appointed.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall incorporate
provisions of the TIA and implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee, in advance, of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such.
SECTION 2.04 Paying Agent to Hold Assets in Trust.
-------------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, or interest on, the Senior Subordinated Notes (whether such assets
have been distributed to it by the Company or any other obligor on the Senior
Subordinated Notes), and shall notify the Trustee of any Default by the Company
(or any other obligor on the Senior Subordinated Notes) in making any such
payment. If the Company or its Subsidiary or Affiliate acts as Paying Agent, it
shall segregate such assets and hold them as a separate trust fund. The Company
at any time may require a Paying Agent to distribute all assets held by it to
the Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Company (or other obligor or
guarantor on the Senior Subordinated Notes) to the Paying Agent, the Paying
Agent shall have no further liability for such assets.
SECTION 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least ten days prior to 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
Holders, which list may be conclusively relied upon by the Trustee.
20
SECTION 2.06 Transfer and Exchange.
----------------------
When Senior Subordinated Notes are presented to the Registrar or a
co-Registrar with a request to register the transfer of such Senior Subordinated
Notes or to exchange such Senior Subordinated Notes for an equal principal
amount of Senior Subordinated Notes of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange as
requested if its requirements for such transaction are met; provided, however,
that the Senior Subordinated Notes surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or co-Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing.
To permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Senior Subordinated Notes at the Registrar's
or co-Registrar's request. No service charge shall be made for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchanges or transfers pursuant to Sections 2.02, 2.07, 2.10, 3.03,
3.07, 4.18 or 10.06). The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of any Senior Note (i) during a period
beginning at the opening of business 15 days before the day of any selection of
Senior Subordinated Notes for redemption under Section 3.02 and ending at the
close of business on such day of selection and (ii) selected for redemption in
whole or in part pursuant to Article Three, except the unredeemed portion of any
Senior Note being redeemed in part.
SECTION 2.07 Replacement Senior Subordinated Notes.
--------------------------------------
If a mutilated Senior Note is surrendered to the Trustee or if the
Holder of a Senior Note claims that the Senior Note has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Senior Note if the Trustee's requirements are met. If required by
the Trustee or the Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Senior Note is replaced. The Company may charge such Holder for
its reasonable, out-of-pocket expenses in replacing a Senior Note, including
reasonable fees and expenses of counsel.
Every replacement Senior Note is an additional obligation of the
Company and is guaranteed by each Guarantor in the same manner as other Senior
Subordinated Notes duly issued hereunder.
SECTION 2.08 Outstanding Senior Subordinated Notes.
--------------------------------------
Senior Subordinated Notes outstanding at any time are all the Senior
Subordinated Notes that have been authenticated by the Trustee except those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Senior Note does not cease to be outstanding
because the Company, the Guarantors or any of their respective Affiliates holds
the Senior Note.
21
If a Senior Note is replaced pursuant to Section 2.07 (other than a
mutilated Senior Note surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Senior
Note is held by a bona fide purchaser. A mutilated Senior Note ceases to be
outstanding upon surrender of such Senior Note and replacement thereof pursuant
to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or its Subsidiary or Affiliate) holds U.S. Legal Tender
sufficient to pay all of the principal and premium, if any, and interest due on
the Senior Subordinated Notes payable on that date, then on and after that date
such Senior Subordinated Notes (to the extent of the principal amount redeemed,
in the case of a partial redemption) cease to be outstanding and interest on
them ceases to accrue.
SECTION 2.09 Treasury Senior Subordinated Notes.
-----------------------------------
In determining whether the Holders of the required principal amount of
Senior Subordinated Notes have concurred in any direction, waiver or consent,
Senior Subordinated Notes owned by the Company, the Guarantors 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 Senior Subordinated Notes that a Trust
Officer of the Trustee knows or has reason to know are so owned shall be
disregarded.
The Company shall notify the Trustee, in writing (which notice shall
constitute actual notice for purposes of the foregoing sentence), when it, the
Guarantors or any of their respective Affiliates repurchases or otherwise
acquires Senior Subordinated Notes, of the aggregate principal amount of such
Senior Subordinated Notes so repurchased or otherwise acquired and such other
information as the Trustee may reasonably request and the Trustee shall be
entitled to rely thereon.
SECTION 2.10 Temporary Senior Subordinated Notes.
------------------------------------
Until definitive Senior Subordinated Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Senior
Subordinated Notes. Temporary Senior Subordinated Notes shall be substantially
in the form of definitive Senior Subordinated Notes but may have variations that
the Company considers appropriate for temporary Senior Subordinated Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Senior Subordinated Notes in exchange for temporary
Senior Subordinated Notes, without charge to the Holder. Until so exchanged, the
temporary Senior Subordinated Notes shall be entitled to the same benefits under
this Indenture as definitive Senior Subordinated Notes.
SECTION 2.11 Cancellation.
-------------
The Company at any time may deliver Senior Subordinated Notes to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Senior Subordinated Notes surrendered to them for registration
of transfer, exchange or payment. The Trustee, or at the direction of the
Trustee, the Registrar or the Paying Agent (other than the
22
Company or its Subsidiary or Affiliate), and no one else, shall cancel and, at
the written direction of the Company, shall dispose of all Senior Subordinated
Notes surrendered for registration of transfer, exchange, payment or
cancellation. Subject to Section 2.07, the Company may not issue new Senior
Subordinated Notes to replace Senior Subordinated Notes that it has paid or
delivered to the Trustee for cancellation. If The Company or any of its
Subsidiaries shall acquire any of the Senior Subordinated Notes, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Senior Subordinated Notes unless and until the
same are surrendered to the Trustee for cancellation pursuant to this Section
2.11.
SECTION 2.12 Defaulted Interest.
-------------------
If the Company defaults in a payment of interest on the Senior
Subordinated Notes, it shall pay the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, which date shall be the fifteenth
day next preceding the date fixed by the Company for the payment of defaulted
interest or the next succeeding Business Day if such date is not a Business Day.
At least 15 days before the subsequent special record date, the Company shall
mail to each Holder, with a copy to the Trustee, a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13 CUSIP Number.
-------------
The Company in issuing the Senior Subordinated Notes shall use a
"CUSIP" number and the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Senior Subordinated
Notes, and that reliance may be placed only on the other identification numbers
printed on the Senior Subordinated Notes.
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee.
-------------------
If the Company elects to redeem Senior Subordinated Notes pursuant to
Section 3.07 hereof, it shall notify the Trustee of the Redemption Date and the
principal amount of Senior Subordinated Notes to be redeemed and whether it
wants the Trustee to give notice of redemption to the Holders at least 30 days
(unless shorter notice shall be satisfactory to the Trustee, as evidenced in a
writing signed on behalf of the Trustee) but not more than 60 days before the
Redemption Date. Any such notice may be canceled at any time prior to notice of
such redemption being mailed to any Holder and shall thereby be void and of no
effect.
The Company shall give each notice provided for in this Section 3.01,
at its expense, at least 30 days before the applicable Redemption Date (unless a
shorter notice period shall be satisfactory to the Trustee, as evidenced in a
writing signed on behalf of the Trustee),
23
together with an Officers' Certificate and an Opinion of Counsel stating that
such redemption shall comply with the conditions contained herein and in the
Senior Subordinated Notes.
SECTION 3.02 Selection of Senior Subordinated Notes to Be Redeemed.
------------------------------------------------------
If fewer than all of the Senior Subordinated Notes are to be redeemed,
the Trustee shall select the Senior Subordinated Notes to be redeemed on a pro
rata basis (or on as nearly a pro rata basis as is practicable, and in such
case, by lot or by such other method as the Trustee shall determine to be fair
and appropriate) and in such manner as complies with applicable legal and other
requirements, if any.
The Trustee shall make the selection from the Senior Subordinated
Notes outstanding and not previously called for redemption and shall promptly
notify the Company in writing of the Senior Subordinated Notes selected for
redemption and, in the case of any Senior Note selected for partial redemption,
the principal amount thereof to be redeemed. Senior Subordinated Notes in
denominations of $1,000 or any lesser amount may be redeemed only in whole. The
Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Senior Subordinated Notes that have
denominations larger than $1,000; provided, however, that the Trustee may select
for redemption any Senior Note that has a principal amount of less than $1,000.
Provisions of this Indenture that apply to Senior Subordinated Notes called for
redemption also apply to portions of Senior Subordinated Notes called for
redemption.
SECTION 3.03 Notice of Redemption.
---------------------
At least 30 days (unless shorter notice shall be satisfactory to the
Trustee, as evidenced in a writing signed on behalf of the Trustee) 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 Senior Subordinated Notes
are to be redeemed at its registered address. At the Company's request, the
Trustee shall give the notice of redemption in the Company's name and at the
Company's expense. Each notice for redemption shall identify the Senior
Subordinated Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Senior Subordinated Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price and accrued
interest, if any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Senior Subordinated Notes called for redemption ceases
to accrue on and after the Redemption Date, and the only remaining right of
the Holders of such Senior Subordinated Notes is to receive payment of the
Redemption Price upon surrender to the Paying Agent of the Senior
Subordinated Notes redeemed;
24
(6) if any Senior Note is being redeemed in part, the portion of the
principal amount of such Senior Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Senior Note, a new Senior Note
or Senior Subordinated Notes in aggregate principal amount equal to the
unredeemed portion thereof will be issued;
(7) if fewer than all the Senior Subordinated Notes are to be
redeemed, the identification of the particular Senior Subordinated Notes
(or portion thereof) to be redeemed, as well as the aggregate principal
amount of Senior Subordinated Notes to be redeemed and the aggregate
principal amount of Senior Subordinated Notes to be outstanding after such
partial redemption; and
(8) the Paragraph of the Senior Subordinated Notes or Section of this
Indenture pursuant to which the Senior Subordinated Notes are to be
redeemed.
SECTION 3.04 Effect of Notice of Redemption.
-------------------------------
Once notice of redemption is mailed in accordance with Section 3.03,
Senior Subordinated Notes called for redemption become due and payable on the
Redemption Date and at the Redemption Price. Upon surrender to the Trustee or
Paying Agent, such Senior Subordinated Notes called for redemption shall be paid
at the Redemption Price.
SECTION 3.05 Deposit of Redemption Price.
----------------------------
Prior to 10:00 AM, New York City time, on each Redemption Date, the
Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the Redemption Price of all Senior Subordinated Notes to be redeemed on that
date (other than Senior Subordinated Notes or portions thereof called for
redemption on that date which have been delivered by the Company to the Trustee
for cancellation). The Paying Agent shall promptly return to the Company any
U.S. Legal Tender so deposited which is not required for that purpose upon the
written request of the Company, except with respect to monies owed as
obligations to the Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price and accrued interest,
if any, interest on the Senior Subordinated Notes to be redeemed will cease to
accrue on and after the applicable Redemption Date, whether or not such Senior
Subordinated Notes are presented for payment.
SECTION 3.06 Senior Subordinated Notes Redeemed in Part.
-------------------------------------------
Upon surrender of a Senior Note that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Senior Note or Senior
Subordinated Notes equal in principal amount to the unredeemed portion of the
Senior Note surrendered.
SECTION 3.07 Optional Redemption.
--------------------
The Senior Subordinated Notes will be redeemable, at the option of the
Company, in whole at any time or in part, at any time or from time to time, on
and after the Issue Date, at a
25
Redemption Price equal to 101% of the principal amount thereof, plus, in each
case, accrued interest thereon to the Redemption Date.
SECTION 3.08 Mandatory Purchase Upon Asset Sale.
-----------------------------------
As more particularly described in Section 4.18 of this Indenture, the
Senior Subordinated Notes shall be mandatorily purchased by the Company, in
whole or in part, upon certain Asset Sales.
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Senior Subordinated Notes.
-------------------------------------
(a) The Company shall punctually pay the principal of and interest on
the Senior Subordinated Notes on the dates and in the manner provided in the
Senior Subordinated Notes. An installment of principal of or interest on the
Senior Subordinated Notes shall be considered paid on the date it is due if the
Trustee or Paying Agent (other than the Company or its Subsidiary or Affiliate)
holds, prior to 10:00 AM New York City time, on that date U.S. Legal Tender
designated for and sufficient to pay all principal, premium and interest then
due.
(b) The Company shall pay interest on overdue principal and interest
on overdue installments of interest and premium, to the extent lawful, at a rate
equal to the rate of interest otherwise payable on the Senior Subordinated Notes
(after giving effect to any increase thereof pursuant to Section 4.04(a) or 4.20
hereof), plus 2.00% per annum.
SECTION 4.02 Maintenance of Office or Agency.
--------------------------------
The Company shall maintain in New York, New York, the office or agency
required under Section 2.03 hereof. The Company shall give prior notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.02.
SECTION 4.03 Limitation on Restricted Payments.
----------------------------------
The Company shall not, and shall cause each of its Subsidiaries not
to, directly or indirectly, make any Restricted Payment.
SECTION 4.04 Minimum Net Worth.
------------------
(a) If the Company's Net Worth at the end of any fiscal quarter
is equal to or less than the Minimum Net Worth, then, commencing on the date on
which the Company shall give the Trustee written notice of any such deficiency,
the Senior Subordinated Notes shall thereafter bear interest at the rate of 13%
per annum. The Senior Subordinated Notes shall bear interest at such rate until
the date (the "Deficiency Correction Date") on which the Company
26
shall give the Trustee written notice that its Net Worth, calculated as of the
end of the fiscal quarter immediately preceding, is greater than the Minimum Net
Worth. The Trustee shall notify the Holders that it has received such a notice
from the Company within 10 days after it receives such notice. Subject to
Section 4.01(b) and the first sentence of this paragraph, from and after the
Deficiency Correction Date, the Senior Subordinated Notes shall bear interest at
the rate specified therein. Any notice given to the Trustee pursuant to this
paragraph shall be accompanied by an Officers' Certificate confirming the
information set forth in such notice.
(b) The Company shall give the Trustee notice that its Net Worth
is equal to or less than the Minimum Net Worth at the end of any fiscal quarter
in which its Net Worth is equal to or less than such amount if such quarter is
one of the first three quarters of any fiscal year of the Company, within 45
days after the end of such quarter and, if such quarter is the fourth quarter of
any fiscal year of the Company, within 90 days after the end of such fiscal
year. The Trustee shall notify the Holders that it has received such a notice
from the Company within 10 days after it receives such notice.
SECTION 4.05 Corporate Existence.
--------------------
Except as otherwise provided by Article Five, the Company shall and
shall cause its Subsidiaries to do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate, partnership or other existence of each of its Subsidiaries in
accordance with the respective organizational documents of each such entity and
the rights (charter and statutory), licenses and franchises of the Company and
each of its Subsidiaries; provided, however, that the Company shall not be
required to preserve, with respect to itself, any right, license or franchise,
and with respect to any of its Subsidiaries, any such right, license or
franchise, or the corporate, partnership or other existence of such
Subsidiaries, 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 adverse in any material respect to the Holders.
SECTION 4.06 Payment of Taxes and Other Claims.
-------------------------------------
The Company shall and shall cause its Subsidiaries to pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges (including withholding taxes and
any penalties, interest and additions to taxes) levied or imposed upon the
Company or any of its Subsidiaries or Properties of the Company or any of their
Subsidiaries and (ii) all lawful claims for labor, materials and supplies that,
if unpaid, might by law become a Lien upon the Property of the Company or any of
its Subsidiaries; provided, however, that the Company and its Subsidiaries shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim if either (a) the amount, applicability or
validity thereof is being contested in good faith by appropriate proceedings and
an adequate reserve has been established therefor to the extent required by GAAP
or (b) the failure to make such payment or effect such discharge (together with
all other such failures) would not have a material adverse effect on the
financial condition or results of operations of the Company and its Subsidiaries
taken as a whole.
27
SECTION 4.07 Maintenance of Properties and Insurance.
-----------------------------------------
(a) The Company shall cause all Properties used or useful to the
conduct of its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereto, all as in their
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such Properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries taken as a whole; provided,
however, that nothing in this Section 4.07 shall prevent the Company or any of
its Subsidiaries from discontinuing the operation or maintenance of any of such
Properties, or disposing of any of them, if such discontinuance or disposal
would not be disadvantageous in any material respect to the Company and is
either (i) in the ordinary course of business, or (ii) otherwise permitted by
this Indenture.
(b) The Company shall provide or cause to be provided, for itself
and each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company are adequate and appropriate for the conduct of the business of
the Company and its Subsidiaries in a prudent manner, with reputable insurers,
in such amounts, with such deductibles, and by such methods as shall be either
(i) consistent with past practices of the Company or the applicable Subsidiary
or (ii) customary, in the reasonable, good faith opinion of the Company, for
corporations similarly situated in the industry.
SECTION 4.08 Compliance Certificate; Notice of Default.
------------------------------------------
(a) The Company and each Guarantor shall deliver to the Trustee
within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Company, and within 120 days after the end of the last fiscal
quarter of each such fiscal year, an Officers' Certificate, complying with
Section 314(a)(4) of the TIA, stating that a review of its activities and the
activities of its Subsidiaries during the preceding fiscal quarter (or, in the
case of the last fiscal quarter, the preceding fiscal year) has been made under
the supervision of the signing Officers with a view to determining whether each
has kept, observed, performed and fulfilled its obligations under this Indenture
and further stating, as to each such Officer signing such certificate, that to
the best of his knowledge the Company and its respective Subsidiaries during
such preceding fiscal quarter (or year, as appropriate) has kept, observed,
performed and fulfilled each and every such covenant and that no Default or
Event of Default under this Indenture, or event of default under the Senior
Secured Credit Facility or event of default under any other bond, debenture,
note or other evidence of indebtedness of the Company or any of its
Subsidiaries, or under any mortgage, Indenture or other instrument (as that term
is used in Section 6.01(4) occurred during such quarter (or year, as
appropriate) or, if such signers do know of such an occurrence, the certificate
shall describe the occurrence and its status with particularity. The Officers'
Certificate shall disclose the Company's Net Worth at the end of such fiscal
quarter (or year, as appropriate) and shall also notify the Trustee should the
Company elect to change the manner in which it fixes its fiscal year end.
28
(b) The Company shall deliver to the Trustee within 120 days
after the end of each fiscal year a written statement by the Company's
independent certified public accountants stating (A) that their audit
examination has included a review of the terms of this Indenture and the Senior
Subordinated Notes as they relate to accounting matters, and (B) whether, in
connection with their audit examination, any Default has come to their attention
and if such a Default has come to their attention, specifying the nature and
period of existence thereof.
(c) The Company shall and shall cause each of its Subsidiaries to
deliver to the Trustee, forthwith upon becoming aware, and in any event within 5
days after the occurrence, of (i) any Default or Event of Default under this
Indenture; (ii) any event of default under the Senior Secured Credit Facility or
any event of default under any other bond, debenture, note or other evidence of
Indebtedness of the Company or any of its Subsidiaries, or under any mortgage,
indenture or other instrument (as that term is used in Section 6.01(4)); and
(iii) any decline in Net Worth such that the Net Worth is equal to or less than
the Minimum Net Worth at the end of any fiscal quarter or any subsequent
increase in Net Worth above such amount at the end of any fiscal quarter, an
Officers' Certificate specifying with particularity such event.
SECTION 4.09 Compliance with Laws.
----------------------
The Company shall comply, and shall cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America and any other country in which the
Company or any Subsidiary conducts business, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except such as are being contested in good faith and by appropriate
proceedings and except for such noncompliances as would not in the aggregate
have a material adverse effect on the financial condition or results of
operations of the Company and its Subsidiaries taken as a whole.
SECTION 4.10 Commission Reports.
-------------------
Whether or not the Company is subject to Section 14 or 16(d) of the
Exchange Act, or any successor provision thereto, 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 14 or 16(d) or any successor provision thereto if the Company were
subject thereto, 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 to file them. The Company shall also (whether or not it is
required to file reports with the Commission), within 30 days of each Required
Filing Date, file with the Trustee copies of the annual reports, quarterly
reports and other documents (without exhibits) which the Company has filed or
would have filed with the Commission pursuant to Section 14 or 16(d) of the
Exchange Act, any successor provisions thereto or this covenant. The Trustee
shall furnish copies of any such reports and other documents to any Holder upon
such Holder's written request. The Company shall not be required to file any
report with the Commission if the Commission does not permit such filing. The
Company shall also comply with the other provisions of TIA Section 314(a).
29
SECTION 4.11 Waiver of Stay, Extension or Usury Laws.
----------------------------------------
Each of the Company and the Guarantors covenantshe extent that each
may lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive any
of the Company or the Guarantors from paying all or any portion of the principal
of or interest or premium on the Senior Subordinated Notes or the Guarantee 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 each may lawfully do so) each of the Company and the Guarantors
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 4.12 Limitation on Transactions with Affiliates.
----------------------------------------------
(a) The Company shall not and shall not permit any of its
Subsidiaries to (i) sell, lease, transfer, issue or otherwise dispose of any of
its Properties or assets or securities to, (ii) purchase any Property, assets or
securities from, (iii) make any Investment in, or (iv) enter into or suffer to
exist any contract or agreement with or for the benefit of, an Affiliate of the
Company or any of its Subsidiaries (an "Affiliate Transaction"), other than
Affiliate Transactions permitted under the following paragraph, unless the Board
of Directors of the Company, pursuant to a Board Resolution, reasonably and in
good faith determines that such Affiliate Transaction is fair to the Company or
such Subsidiary, as the case may be, and is on terms at least as favorable as
might reasonably have been obtainable at such time from an unaffiliated party.
All Affiliate Transactions (and each series of related Affiliate Transactions
which are similar or part of a common plan) involving aggregate payments or
other Property with a fair market value in excess of $50,000, shall be approved
by a majority of the disinterested members of the Board of Directors of the
Company, such approval to be evidenced by a Board Resolution stating that such
Board of Directors has determined that such transaction complies with the
foregoing provisions.
(b) The provisions of the foregoing paragraph shall not apply to
(i) reasonable and customary fees and compensation paid to, and indemnity (other
than for fraud or intentional misrepresentation) provided on behalf of,
officers, directors, employees or consultants of the Company or any of its
Subsidiaries, as determined in good faith by the Board of Directors of the
Company or any such Subsidiary or the senior management thereof, and (ii)
transactions exclusively between or among the Company and any of its
Wholly-owned Subsidiaries that are Guarantors as of the Issue Date or
exclusively between or among such Wholly-owned Subsidiaries that are Guarantors
as of the Issue Date, provided such transactions are not otherwise prohibited by
this Indenture.
SECTION 4.13 Limitation onrrences of Additional Indebtedness.
---------------------------------------------------
(a) Except as set forth in this Section 4.13, the Company will
not, and will not permit any of its Subsidiaries to, create, incur, assume or,
directly or indirectly, guarantee the
30
payment of any Indebtedness, except that the Company and its Subsidiaries may
incur Indebtedness if at the time of such event and after giving effect thereto
on a pro forma basis the Company's Fixed Charge Coverage Ratio for the four full
fiscal quarters immediately preceding such event, taken as one period (and
calculated on the assumptions that (a) such Indebtedness had been incurred on
the first day of such four-quarter period, (b) if applicable, the proceeds
therefrom had been used to repay, on the first day of such four-quarter period,
Indebtedness actually repaid with such proceeds, (c) in the case of acquisitions
which occurred during such four-quarter period or subsequent to such
four-quarter period and/or prior to the date of the transaction giving rise to
the need to calculate the Fixed Charge Coverage Ratio on a pro forma basis, on
the assumption that such transaction occurred on the first day of such
four-quarter period, (d) in the case of the incurrence of any Indebtedness
during such four-quarter period or subsequent to such four-quarter period and on
or prior to the date of the transaction giving rise to the need to calculate the
Fixed Charge Coverage Ratio on a pro forma basis, on the assumption that such
transaction occurred on the first day of such four-quarter period, and (e) in
the case of any disposition of assets during such four-quarter period (or
subsequent to such four-quarter period and/or prior to the date of the
transaction giving rise to the need to calculate the Fixed Charge Coverage
Ratio) which would require pro forma financial information under applicable
accounting rules of the Commission or which results in the assumption,
repayment, defeasance or discharge of any Indebtedness, on the assumptions that
such disposition had occurred on the first day of such four-quarter period with
the appropriate adjustments with respect to such disposition being included in
such pro forma calculation, and that any Indebtedness assumed, repaid, defeased
or otherwise retired in connection with such disposition was also retired on
such date), would have been at least equal to 2.0:1.0 if incurred during the
period from the Issue Date through December 31, 2000 and 2.25:1.0 if incurred
thereafter. For purposes of this Indenture, Indebtedness incurred by any Person
that is not the Company or a Subsidiary, which Indebtedness is outstanding at
the time such Person is acquired as a Subsidiary by, becomes, or is merged into
or consolidated with, such Subsidiary or the Company, shall be deemed to have
been incurred or issued, as the case may be, at the time such Person is acquired
as a Subsidiary by, becomes, or is merged into or consolidated with, such
Subsidiary or the Company.
(b) (i) Notwithstanding Section 4.13(a), the Company and any of its
Wholly-owned Subsidiaries that are Guarantors may incur Indebtedness
pursuant to the Senior Secured Credit Facility in an aggregate principal
amount at any time outstanding not to exceed $__________, subject to
permanent reduction as provided in Section 4.18; and
(ii) The Company shall promptly notify the Trustee in writing of
any reduction, refunding or refinancing of the Senior Secured Credit
Facility.
(c) ______ Notwithstanding Section 4.13(a), the Company and its
Subsidiaries may incur Indebtedness evidenced by the Senior Subordinated Notes
and the Guarantee.
(d) Notwithstanding Section 4.13(a), the Company may incur
Indebtedness to any Guarantor, to the extent permitted by Sections 4.03 and
4.12.
(e) Notwithstanding Section 4.13(a):
31
(i) The Company may be liable for the Capitalized Lease
Obligations and other Indebtedness outstanding on the Issue Date described
on Exhibit B, subject to permanent reduction as provided in Section 4.18;
(ii) The Company may be liable for the Indebtedness outstanding
on the Issue Date described on Exhibit C; and
(iii) The Company and its respective Wholly-owned Subsidiaries
that are Guarantors may incur Indebtedness if such Indebtedness was
incurred in connection with the grant of Liens of the type described in
clause (xiii) of the definition of the term "Permitted Liens" and the
transaction pursuant to which such Indebtedness was incurred, and the
amount of such Indebtedness, satisfies and complies with all of the
requirements of such clause (xiii).
SECTION 4.14 Limitation on Payment Restrictions Affecting Subsidiaries.
----------------------------------------------------------
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or suffer to exist, or allow to become
effective any consensual Payment Restriction with respect to any of its
Subsidiaries, except for (i) any such restrictions contained in (a) the Senior
Secured Credit Facility and related documents as in effect on the Issue Date as
any such payment restriction may apply to any present or future Subsidiary, (b)
this Indenture, (c) secured Indebtedness otherwise permitted to be incurred or
to remain outstanding pursuant to Sections 4.13 and 4.15 hereof and that limits
the right of the debtor to dispose of the assets securing such Indebtedness;
(ii) customary provisions restricting subletting, transfer or assignment of any
lease or agreement entered into by the Company or a Subsidiary or the assets
(other than cash) subject thereto; (iii) customary pre-closing restrictions with
respect to the Company or a Subsidiary pursuant to an agreement that has been
entered into for the sale or disposition of all or a portion of the Capital
Stock or assets of the Company or such Subsidiary, which is not otherwise
prohibited by this Indenture; and (iv) restrictions contained in Indebtedness
incurred to refinance, refund, extend or renew Indebtedness referred to in
clause (i) above or amendments to the Indebtedness referred to in clause (i)
above; provided that the Payment Restrictions contained therein are not any more
restrictive than those provided for in such Indebtedness being refinanced,
refunded, extended or renewed.
SECTION 4.15 Limitation on Liens.
--------------------
The Company shall not and shall not permit any of its Subsidiaries to
create, incur, assume or suffer to exist any Liens upon any of their respective
assets except for Permitted Liens.
SECTION 4.16 Restrictions on Sale and Ownership of Subsidiaries.
---------------------------------------------------
The Company shall not permit any of its Subsidiaries to issue any
Capital Stock or Partnership Interest (other than to the Company or to a
Wholly-owned Subsidiary that is a Guarantor as of the Issue Date) or permit any
Person (other than the Company or a Wholly-owned Subsidiary that is a Guarantor
as of the Issue Date) to own any Capital Stock or Partnership Interest of any
Subsidiary of the Company, and the Company shall not, and shall not
32
cause its Subsidiaries not to, own, acquire or permit to exist any Subsidiary
that is not a Wholly-owned Subsidiary and a Guarantor, in each case other than
(i) a sale of 100% of the Capital Stock or Partnership Interests of a Subsidiary
which is not otherwise prohibited by this Indenture, and (ii) any Subsidiary (A)
formed after the Issue Date, (B) in which all Investments made or held by the
Company and its Subsidiaries constitute Permitted Business Investments made
pursuant to and in compliance with the definition of such term, and (C) the
formation and capitalization of which does not cause or constitute a Default or
Event of Default hereunder.
SECTION 4.17 Payments for Consent.
---------------------
Neither the Company nor any Affiliate of the Company shall, directly
or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Senior Subordinated Notes unless such consideration is paid to all
Holders that so consent, waive or agree to amend in the time frame set forth in
the solicitation documents relating to such consent, waiver or agreement.
SECTION 4.18 Limitation on Asset Sales.
--------------------------
(a) The Company will not, and will not permit any of its
Subsidiaries to, consummate any Asset Sale unless (i) the Company or the
applicable Subsidiary receives consideration at the time of such Asset Sale (the
"Asset Sale Closing Date") at least equal to the Fair Market Value of the assets
sold or otherwise disposed of or issued (as determined in good faith by the
Board of Directors of the Company or, with respect to assets having a Fair
Market Value in excess of $1 million, an Independent Financial Advisor) and at
least 90% of the fair market value (as so determined) of the consideration so
received by the Company or such Subsidiary is in the form of cash; provided,
however, that the amount of (A) any liabilities of the Company or its
Subsidiaries (other than liabilities owed to the Company, any of its
Subsidiaries or any of their Affiliates) that are assumed by the transferee in
any such transaction (as shown on the Company's or such Subsidiary's most recent
balance sheet) pursuant to a customary novation agreement that releases the
Company and its Subsidiaries from further liability and (B) any Cash Equivalents
received by the Company or any Subsidiary from such transferee that are
immediately converted by the Company or such Subsidiary into cash shall both be
deemed to be cash, solely to the extent of the cash received in the case of (B),
for purposes of this Section 4.18; and (ii) the Net Cash Proceeds received by
the Company or such Subsidiary from such Asset Sale are applied in compliance
with Section 4.18(b) hereof.
(b) (i) If the Company or any of its Subsidiaries engages in an
Asset Sale, the Company or such Subsidiary shall apply the Net Cash Proceeds
thereof in the following order:
(A) first, toward the payment of the Indebtedness
specified on Exhibit B; provided, however, that any such
payment shall result in a permanent reduction in the maximum
amount of Indebtedness permitted under Section 4.13(e)(i);
and
33
(B) second, toward the payment of the Indebtedness
under the Senior Secured Credit Facility; provided, however,
that any such payment shall result in a permanent reduction
of the Lender's commitment thereunder and a corresponding
permanent reduction in the maximum amount of Indebtedness
permitted under Section 4.13(b)(i).
(ii) _____ All Net Cash Proceeds not applied pursuant to
Section 4.18(b)(i) ("Excess Proceeds") shall be delivered to the
Trustee not later than 90 days after the applicable Asset Sale
Closing Date, and shall be applied to the purchase of Senior
Subordinated Notes pursuant to a Net Proceeds Purchase as set
forth below. To the extent that any such Excess Proceeds remain
after the application of the Net Cash Proceeds described in
Section 4.18(b)(i), the Company shall purchase Senior
Subordinated Notes as described in Section 4.18(c) (a "Net
Proceeds Purchase") at a price equal to 101% of the aggregate
principal amount thereof, plus accrued interest to the date of
purchase, which shall in the aggregate equal the amount of Excess
Proceeds required by this Section 4.18 to be made available to
purchase Senior Subordinated Notes in a Net Proceeds Purchase.
(c) Notice of a Net Proceeds Purchase pursuant to this Section
4.18 shall be mailed, by first class mail, by the Company not more than 91 days
after the relevant Asset Sale Closing Date to all Holders at their last
registered addresses, with a copy to the Trustee. The notice shall specify a
Redemption Date chosen by the Company in compliance with the first sentence of
Section 3.03 and shall contain all instructions and materials necessary to
enable such Holders to tender Senior Subordinated Notes pursuant to the Net
Proceeds Purchase and shall state the terms required to be stated in a notice of
redemption under Section 3.03.
On or before the Redemption Date, the Company shall have
deposited with the Paying Agent (to the extent not already held by the Paying
Agent) U.S. Legal Tender equal to the Excess Proceeds of the Asset Sale.
Following the Redemption Date, the Paying Agent shall promptly mail to the
Holders of Senior Subordinated Notes payment in an amount equal to the purchase
price. The Company will publicly announce the results of the Net Proceeds
Purchase on or as soon as practicable after the Redemption Date. For purposes of
this Section 4.18, the Trustee shall act as the Paying Agent.
Notwithstanding the foregoing, the Company need not initiate a
purchase offer under this Section 4.18 if the amount on deposit with the Trustee
is less than $1,000,000, but shall instead hold such lesser amount in trust in
an interest bearing account until the earlier of the next Redemption Date under
this Section or the date upon which the Senior Subordinated Notes become due and
payable. The Company, however, may not credit any such amounts held by the
Trustee against any other provision of this Indenture.
(d) If at any time any non-cash consideration received by the
Company or any Subsidiary in connection with any Asset Sale is converted into or
sold or otherwise disposed of for cash, or if cash dividends or interest or
other cash payments are received with respect thereto, then such cash shall
constitute Net Cash Proceeds for purposes of this covenant and shall be applied
in accordance with Section 4.18(b) as if received in an Asset Sale occurring on
the date any such cash is received.
34
SECTION 4.19 Guarantees by Subsidiaries.
---------------------------
The Company will cause each of its Subsidiaries, whether existing
on the Issue Date or thereafter formed or acquired, other than Subsidiaries
formed after the Issue Date pursuant to and in compliance with the requirements
of Section 4.16(ii), to become a Guarantor by complying with the procedures set
forth in Section 12.11 hereof and by executing and delivering a supplemental
indenture evidencing such Subsidiary's Guarantee. Neither the Company nor any
Guarantor shall be required to make a notation on the Senior Subordinated Notes
to reflect any such subsequent Guarantee.
SECTION 4.20 Listing on Securities Exchange.
--------------------------------
The Company and the Guarantors shall exercise its reasonable best
efforts to cause the Senior Subordinated Notes and the Guarantees to be listed
for trading on a continuous basis commencing on the Issue Date on a recognized
securities exchange or recognized automated quotation system. If the Senior
Subordinated Notes and the Guarantees are not so listed for trading prior to May
1, 2000, then, commencing on such date, the Senior Subordinated Notes shall
thereafter bear interest at the rate of 12 1/8% per annum. The Senior
Subordinated Notes shall bear interest at such rate until the date (the "Listing
Date") on which the Company and the Guarantors shall have caused the Senior
Subordinated Notes and the Guarantees to be listed for trading on a continuous
basis on a recognized securities exchange or recognized automated quotation
system. Subject to Section 4.01(b), from and after the Listing Date, the Senior
Subordinated Notes shall bear interest at the rate specified therein.
SECTION 4.21 Subsidiaries.
-------------
Except as permitted by Section 4.16(ii), the Company shall not,
and shall cause its Subsidiaries not to, own, acquire or permit to exist any
Subsidiary which is not a Wholly-owned Subsidiary and a Guarantor.
SECTION 4.22 Prohibition on Company and Guarantors Becoming an Investment
Company.
-------------------------------------------------------------
None of the Company or the Guarantors shall become an "Investment
Company" as defined in the Investment Company Act of 1940, as amended.
SECTION 4.23 Maintenance Capital Expenditures.
The Company shall not, and shall cause its Subsidiaries not to,
make Maintenance Capital Expenditures in any Yearly Period in an aggregate
amount in excess of the corresponding limit for such Yearly Period as set forth
in the second column below (or, in the case of a Yearly Period consisting of
less than 365 days, a proportionally lower amount based upon the number of days
in such Yearly Period); provided, however, that at the end of each calendar year
the amounts set forth in the second column below for the following year shall be
deemed to be (i) reduced in the event of one or more Asset Sales by the Company
or its Subsidiaries by multiplying such number by a fraction, the numerator of
which is equal to the Consolidated Assets of the Company on the last day of such
calendar year, without considering the proceeds of
35
the Asset Sales, and the denominator of which is equal to the Consolidated
Assets of the Company on the last day of the immediately preceding calendar
year, and (ii) increase in the event of one or more acquisitions by the Company
or its Subsidiaries of tractors, trailers, vans or other equipment used by the
Company or any of its Subsidiaries in the operation of the Trism Business by
multiplying such number by a fraction, the numerator of which is equal to the
Consolidated Assets of the Company on the last day of such calendar year and the
denominator of which is equal to the Consolidated Assets of the Company on the
last day of the immediately preceding calendar year:
YEARLY PERIOD MAXIMUM MAINTENANCE
ENDING CAPITAL EXPENDITURES
December 31, 1999 $_____________
December 31, 2000 $_____________
December 31, 2001 $_____________
December 31, 2002 $_____________
December 31, 2003 $_____________
Maturity Date $_____________
SECTION 4.24 Line of Business.
-----------------
The Company will not, and will not permit any of its Subsidiaries
to, engage as a material part of its business in any business other than the
TRISM Business.
SECTION 4.25 Limitation on Issuance of Other Subordinated Indebtedness
Senior to the Senior Subordinated Notes.
-------------------------------------------------------------
The Company will not, and will not permit any Subsidiary to,
create, incur, assume, guarantee or in any other manner become liable with
respect to any Indebtedness, other than the Senior Subordinated Notes and the
Guarantees, that is, in the case of the Company, subordinate in right of payment
to any Senior Indebtedness or, in the case of any Guarantor, subordinate in
right of payment to any Guarantor Senior Indebtedness, unless such Indebtedness
is permitted by Section 4.13 and expressly by its terms is also subordinate or
ranks pari passu in right of payment to the Senior Subordinated Notes or the
Guarantees, as the case may be.
SECTION 4.26 Limitation of Guarantees by Subsidiaries.
--------------------------------------------
The Company will not permit any Subsidiary, directly or
indirectly, to assume, guarantee or in any other manner become liable with
respect to any Indebtedness of the Company or any other Subsidiary unless (i)
such assumption, guarantee or other liability is permitted by Section 4.13, (ii)
each such Subsidiary which is not then a Guarantor simultaneously executes and
delivers to the Trustee a guarantee in favor of the Trustee, substantially in
the form of the Guarantee in Article Twelve (and, if requested by the Trustee, a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee), providing
36
for the guarantee of payment of the Senior Subordinated Notes by such Subsidiary
and (iii) (a) if any such assumption, guarantee or other liability of such
Subsidiary is provided in respect of Senior Indebtedness, the guarantee or other
instrument provided by such Subsidiary in respect of such Senior Indebtedness
may be superior to the Guarantee, pursuant to subordination provisions no less
favorable than those contained in this Indenture and (b) if such assumption,
guarantee or other liability of such Subsidiary is provided in respect of
Subordinated Indebtedness, the guarantee or other instrument provided by such
Subsidiary in respect of such Subordinated Indebtedness shall be subordinated to
the Guarantee, pursuant to subordination provisions not less favorable than
those contained in this Indenture.
Notwithstanding the foregoing, any such Guarantee by a Subsidiary
of the Senior Subordinated Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged, without any further
action required on the part of the Trustee or any Holder, upon any sale or other
disposition (by merger or otherwise) to any Person which is not a Subsidiary or
Affiliate of the Company, of all of the Company's Capital Stock in, or all or
substantially all of the assets of, such Subsidiary; provided, that (a) such
sale or disposition of such Capital Stock or assets is otherwise in compliance
with the terms of this Indenture and (b) such assumption, guarantee or other
liability of such Subsidiary has been released by the holders of the other
Indebtedness so guaranteed.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 Limitation on Merger, Etc.
--------------------------
(a) Each of the Company, the Guarantors and their Subsidiaries
shall not in a single transaction or through a series of related transactions,
(i) consolidate with or merge with or into any other Person, or transfer (by
lease, license, assignment, sale or otherwise) all or substantially all of its
Properties and assets as an entirety or substantially as an entirety to another
Person or group of affiliated Persons or (ii) adopt a Plan of Liquidation.
(b) Notwithstanding Section 5.01(a), the Company may consolidate
with or merge with or into any other Person provided that:
(i) ______ the Company shall be the continuing Person, or the
Person (if other than the Company) formed by such consolidation or
into which the Company is merged or to which all or substantially all
of the properties and assets of the Company as an entirety or
substantially as an entirety are transferred (or, in the case of a
Plan of Liquidation, any Person to which assets are transferred) (the
Company or such other Person being hereinafter referred to as the
"Surviving Person") shall be a corporation organized and validly
existing under the laws of the United States, any State thereof or the
District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under
the Senior Subordinated Notes and this Indenture;
37
(ii) (A) immediately after and giving effect to such
transaction and the assumption of the obligations contemplated by
clause (i) above and the incurrence or anticipated incurrence of any
Indebtedness to be incurred in connection therewith, the Surviving
Person shall have a Net Worth equal to or greater than the Net Worth
of the Company immediately preceding the transaction, (B) immediately
before and immediately after and giving effect to such transaction and
the assumption of the obligations contemplated by clause (i) above and
the incurrence or anticipated incurrence of any Indebtedness to be
incurred in connection therewith, no Default or Event of Default shall
have occurred and be continuing, (C) immediately after and giving
effect to such transaction and the assumption of the obligations
contemplated by clause (i) above and the incurrence or anticipated
incurrence of any Indebtedness to be incurred in connection therewith,
all Guarantees of the Guarantors ______ remain in full force and
effect and (D) immediately after and giving effect to such transaction
and the assumption of the obligations contemplated by clause (i) above
and the incurrence or anticipated incurrence of any Indebtedness to be
incurred in connection therewith, the ratio of the Surviving Company's
Consolidated Liabilities to the Surviving Company's Consolidated
Assets shall be equal to or less than the ratio of the Company's
Consolidated Liabilities to the Company's Consolidated Assets
immediately prior to such transaction.
(iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, transfer or adoption and such supplemental
indenture comply with this Article Five, that the Surviving Person
agrees to be bound hereby, that such supplemental indenture and this
Indenture, as modified by such supplemental indenture, are enforceable
against the Surviving Person and the Guarantors in accordance with
____ their respective terms, and that all conditions precedent herein
provided relating to such transaction have been satisfied;
(iv) the Company shall have delivered to the Trustee a
certificate from its independent certified public accountants stating
that the Company has made the calculations required by clauses (ii)(A)
and (D) above in accordance with the terms of this Indenture; and
(v) none of the Company, any Guarantor or any of their
respective Subsidiaries or the Surviving Person would thereupon become
obligated with respect to any Indebtedness (including acquired
indebtedness) nor would any of its assets of Properties become subject
to a Lien, unless such Person could incur such Indebtedness (including
acquired indebtedness) or create such Lien under this Indenture (after
giving effect to such Person being bound by all the terms of this
Indenture)
(c) Notwithstanding Section 5.01(a), a Wholly-owned Subsidiary of
the Company may merge into the Company or another Wholly-owned Subsidiary of the
Company that is a Guarantor and the Company need not preserve the existence of
one or more Guarantors and their Subsidiaries as permitted under Section 4.05 of
this Indenture.
(d) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the Properties and assets of one or
more Subsidiaries, the Capital Stock of which constitutes all or substantially
all of the
38
properties and assets of a Person shall be deemed to be the transfer of all or
substantially all of the Properties and assets of a Person.
SECTION 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of assets
(including pursuant to a Plan of Liquidation) in accordance with Section 5.01,
the successor Person formed by such consolidation or into which the Company or
any Guarantor or Subsidiary is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or Guarantor, as the case may be, under this Indenture (and shall
execute a supplemental indenture to that effect in accordance with Section
12.11) with the same effect as if such successor Person had been named as the
Company or Guarantor, as the case may be, herein; provided, however that the
Company and Guarantors shall not be released from the obligations and covenants
under this Indenture and the Senior Subordinated Notes.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default.
------------------
An "Event of Default" occurs under this Indenture if:
(1) the Company defaults in the payment of interest on any
Senior Subordinated Notes when the same becomes due and payable,
and the Default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
(or premium, if any, on) any Senior Note when the same becomes
due and payable, at maturity, upon acceleration, redemption or
otherwise (including the failure to purchase (or offer to
purchase) Senior Subordinated Notes tendered pursuant to the
requirements of Section 4.18);
(3) the Company or any Guarantor fails to comply with any
other agreement or covenant contained in the Senior Subordinated
Notes, this Indenture or the Registration Rights Agreement, and
the Default continues for the period and after the notice
specified below;
(4) there shall be a default under any bond, debenture or
other evidence of Indebtedness of the Company or any Guarantor
having an aggregate amount in excess of $1,000,000, or under any
mortgage, security agreement, indenture or other instrument under
which there may be issued or by which there may be secured or
evidenced any such Indebtedness, whether such Indebtedness now
exists or shall hereafter be created, if such default either (A)
results from the failure to pay principal or interest on any
39
Indebtedness or (B) relates to an obligation other than the
obligation to pay principal or interest on any Indebtedness and
results in the holder or holders of such Indebtedness causing
such Indebtedness to become due prior to its stated maturity;
(5) any Guarantee required to be in full force and effect by
the terms of this Indenture ceases to be in full force and effect
or is declared null and void or otherwise not enforceable against
any Guarantor in accordance with its terms, or any of the
Guarantors repudiates its obligations under its Guarantee or
denies that it has any further liability under the Guarantee or
gives notice to such effect (other than by reason of the
termination of this Indenture or the release of any such
Guarantee in accordance with this Indenture); or any Guarantor
repudiates its obligations under its Guarantee of the Senior
Subordinated Notes or if a final judicial determination is made
that such Guarantee is not enforceable against any Guarantor in
accordance with its terms;
(6) the Company or any Guarantor pursuant to or within the
meaning of any Bankruptcy Law:
(a) admits in writing its inability to pay its debts
generally as they become due;
(b) commences a voluntary case or proceeding;
(c) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or
proceeding;
(d) consents to the appointment of a Custodian of it or
for all or substantially all of its property;
(e) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it;
(f) makes a general assignment for the benefit of its
creditors; or
(g) takes any corporate action to authorize or effect
any of the foregoing;
(7) a court of competent jurisdiction enters a judgment,
decree or order under any Bankruptcy Law that is for relief
against the Company or any Guarantor, in an involuntary case or
proceeding which shall (A) approve a petition seeking
reorganization, arrangement, adjustment or composition in respect
of the Company or any Guarantor, (B) appoint a Custodian of the
Company or any Guarantor, or for substantially all of its
Property, or (C) order the winding-up or liquidation of its
affairs, and in each case the judgment, order or decree remains
unstayed and in effect for 60 days;
40
(8) any warrant of attachment is issued against any property
of the Company or any Guarantor having a value of at least $1
million, which warrant is not released, stayed or bonded against
within 60 days after service of process with respect thereto, or
final judgments not covered by insurance (which insurance has
been issued by a financially sound insurer that is not an
Affiliate of the Company and that has not disclaimed or
threatened to disclaim coverage) for the payment of money which
in the aggregate at any one time exceeds $1 million shall be
rendered against the Company or any Guarantor by a court of
competent jurisdiction and shall remain undischarged for 60 days
after judgment becomes final and nonappealable;
(9) any final judgments or orders are rendered against the
Company, any Guarantor or any of their respective Subsidiaries
which require the payment in money, either individually or in an
aggregate amount, that is more than $1 million and not covered by
insurance, which remain unstayed, undischarged or unbonded for a
period of 60 days thereafter; or
(10) there shall be any failure to procure and maintain
property and liability insurance in accordance with the
provisions of Section 4.07 continuing, in the case of failure to
maintain such insurance, until the earlier of (y) 30 days after
notice to the Company or any of its Subsidiaries or the Trustee
of the lapse or cancellation of such insurance, and (z) the date
such lapse or cancellation is effective as to the Trustee.
A Default under clause (3) above (other than any Default under
Sections 4.03, 4.04, 4.12, 4.13, 4.14, 4.15, 4.16, 4.18, 4.19, 4.20, 4.21, 4.22,
4.23, 4.24, 4.25, 4.26 and 5.01, which Defaults shall be Events of Default with
the notice specified in this paragraph but without the passage of time specified
in this paragraph) or under clause (10) above is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the outstanding Senior Subordinated Notes notify the Company and the
Trustee, of the Default, and the Company does not cure the Default within 30
days after receipt of the notice. The notice must specify the Default, demand
that it be remedied and state that the notice is a ANotice of Default.@ Such
notice shall be given by the Trustee if so requested by the Holders of at least
25% in principal amount of the Senior Subordinated Notes then outstanding. When
a Default is cured, it ceases.
SECTION 6.02 Acceleration.
-------------
If an Event of Default (other than an Event of Default specified
in Section 6.01(6) or (7) with respect to the Company) occurs and is continuing,
the Trustee may, by notice to the Company, or the Holders of at least 25% in
principal amount of the Senior Subordinated Notes then outstanding may, by
written notice to the Company and the Trustee, and the Trustee shall, upon the
request of such Holders, declare the aggregate principal amount of the Senior
Subordinated Notes outstanding, together with accrued interest thereon to the
date of payment, to be due and payable and, upon any such declaration, the same
shall become and be due and payable; provided that so long as any Indebtedness
is outstanding under the Senior Secured
41
Credit Facility, such declaration shall not be effective until the earlier of
(i) five days after delivery of such declaration of acceleration of the Senior
Subordinated Notes to the Senior Representative by the Trustee and (ii) the
declaration of acceleration of the Indebtedness under the Senior Secured Credit
Facility. If an Event of Default specified in Section 6.01(6) or (7) occurs with
respect to the Company, all unpaid principal and accrued interest on the Senior
Subordinated Notes then outstanding shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder. Upon payment of such principal amount, interest, and premium, if
any, all of the Company=s obligations under the Senior Subordinated Notes and
this Indenture, other than obligations under Section 7.07, shall terminate. The
Holders of a majority in principal amount of the Senior Subordinated Notes then
outstanding by notice to the Trustee may rescind an acceleration and its
consequences if (i) all existing Events of Default, other than the non-payment
of the principal of the Senior Subordinated Notes which has become due solely by
such declaration of acceleration, have been cured or waived, (ii) to the extent
the payment of such interest is lawful, interest on overdue installments of
interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid, (iii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction, and
(iv) the Company has paid or caused to be paid to the Trustee all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and all other
amounts due to the Trustee under Section 7.07.
SECTION 6.03 Other Remedies.
---------------
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders under this Indenture or the Guarantee by such appropriate private or
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce such rights, including seeking recourse against any Guarantor pursuant
to the terms of the Guarantee, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy, or to enforce
any other proper remedy, subject however to Section 6.05. No recovery of any
such judgment upon any property of the Company or any Guarantor shall affect or
impair any rights, powers or remedies of the Trustee or the Holders.
The Trustee may maintain a proceeding even if it does not possess
any of the Senior Subordinated Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Past Defaults.
------------------------
Subject to Sections 6.02, 6.07 and 9.02, the Holders of a
majority in principal amount of the outstanding Senior Subordinated Notes by
notice to the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of
43
principal of or interest on any Senior Note as specified in clauses (1) and (2)
of Section 6.01. When a Default or Event of Default is waived, it is cured and
ceases.
SECTION 6.05 Control by Majority.
--------------------
The Holders of a majority in principal amount of the outstanding
Senior Subordinated Notes may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it. Subject to Section 7.01, however, the Trustee may
refuse to follow any direction that conflicts with any law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability; provided
that the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
SECTION 6.06 Limitation on Suits.
--------------------
Subject to Section 6.07, a Securityholder may not pursue any
remedy with respect to this Indenture or the Senior Subordinated Notes unless:
(1) the Holder gives to the Trustee notice of a continuing
Event of Default;
(2) the Holder or Holders of at least 25% in principal amount
of the outstanding Senior Subordinated Notes make a written
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense to be incurred in compliance with such request;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holder or Holders of a
majority in principal amount of the outstanding Senior
Subordinated Notes 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 6.07 Rights of Holders to Receive Payment.
-------------------------------------
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal of, premium, if any, and interest
on a Senior Note, on or after the respective due dates expressed in such Senior
Note, or to bring suit for the enforcement of any
43
such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.
SECTION 6.08 Collection Suit by Trustee.
---------------------------
If an Event of Default in payment of principal or interest
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Senior Subordinated Notes for
the whole amount of principal and accrued interest remaining unpaid, together
with interest on overdue principal and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate per annum borne by the Senior Subordinated Notes and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07.
SECTION 6.09 Trustee May File Proofs of Claim.
---------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07) and the Securityholders allowed in
any judicial proceedings relating to the Company or any other obligor upon the
Senior Subordinated Notes, any of their respective creditors or any of their
respective property and shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each 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
Senior Subordinated Notes 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 pursuant to this Article
Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the
Company or any Guarantor directly without the Trustee, to Holders
for their collection costs;
44
Third: to Holders for amounts due and unpaid on the Senior
Subordinated Notes for principal, premium, if any, and interest,
ratably, without preference or priority of any kind, according to
the amounts due and payable on the Senior Subordinated Notes for
principal, premium, if any, and interest, respectively; and
Fourth: to the Company or relevant Guarantor.
The Trustee, upon prior notice to the Company, may fix a record
date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11 Undertaking for Costs.
----------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys= fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Senior Subordinated Notes.
SECTION 6.12 Event of Default from Willful Action.
-------------------------------------
In the case of any Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
or any Guarantor with the intention of avoiding payment of the premium that the
Company would have had to pay if the Company then had elected to redeem the
Senior Subordinated Notes pursuant to Section 3.07 hereof, an equivalent premium
shall also become and be immediately due and payable to the extent permitted by
law.
SECTION 6.13 Rights and Remedies Cumulative.
-------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or wrongfully taken Senior Subordinated
Notes in Section 2.07, no right or remedy herein conferred upon or reserved to
the Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.14 Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy arising upon any Default or Event of Default shall impair
any such right or remedy or constitute a waiver of any such Default or Event of
Default or an acquiescence therein. Every right and remedy given by this
Indenture, or by law to the Trustee or to the Holders may be
45
exercised from time to time, and as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed,
subject to the terms and conditions hereof.
SECTION 7.01 Duties of Trustee.
------------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise thereof as a
prudent Person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse
to the Trustee; and
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01; and
(ii) 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.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. The Trustee shall be entitled to the protection
afforded by TIA Section 315(d)(3).
46
(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) Assets held in trust by the Trustee need not be segregated
from other assets except to the extent required by law.
SECTION 7.02 Rights of Trustee.
------------------
Subject to Section 7.01:
(a) The Trustee may rely 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 and may require an Officers= Certificate or an Opinion of
Counsel, which shall conform to Sections 13.04 and 13.05. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion;
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care;
(d) The Trustee shall not be liable for any action that it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee=s conduct does not
constitute willful misconduct or negligence;
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit;
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(g) Any permissive right or power available to the Trustee under
this Indenture shall not be construed to be a mandatory duty or obligation;
(h) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers= Certificate; and
46
(i) The Trustee shall not be charged with knowledge of any
Default or Event of Default with respect to the Senior Subordinated Notes unless
either (1) a Trust Officer assigned to the Corporate Trust Department of the
Trustee (or any successor division or department of the Trustee) shall have
actual knowledge of such Default or Event of Default or (2) written notice of
such Default or Event of Default shall have been given to the Trustee by the
Company or by any Holder of the Senior Subordinated Notes.
SECTION 7.03 Individual Rights of Trustee.
-----------------------------
The Trustee in its individual or any other capacity may
become the owner or pledgee of Senior Subordinated Notes and may otherwise deal
with the Company or any Guarantor, or their respective Affiliates, with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04 Trustees Disclaimer.
--------------------
The Trustee makes no representation as to the validity or
adequacy of this Indenture, the Senior Subordinated Notes or the Guarantee, it
shall not be accountable for the Company=s use of the proceeds from the Senior
Subordinated Notes, and it shall not be responsible for any statement in the
Senior Subordinated Notes other than the Trustee=s certificate of
authentication.
SECTION 7.05 Notice of Default.
------------------
If a Default or an Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each Holder notice
of the uncured Default or Event of Default within 90 days after such Default or
Event of Default occurs. Except in the case of a Default or an Event of Default
in payment of principal of, or interest on, any Senior Note, including the
failure to make a Net Proceeds Purchase, the Trustee may withhold the notice if
and so long as its Board of Directors, the executive committee of its Board of
Directors or a committee of its directors and/or Trust Officers in good faith
determines that withholding the notice is in the interest of the Holders.
SECTION 7.06 Reports by Trustee to Holders.
------------------------------
Within 60 days after each May 15, beginning with May 15,
2000, the Trustee shall, to the extent that any of the events described in TIA
Section 313(a) occurred within the previous twelve months, but not otherwise,
mail to each Securityholder a brief report dated as of such May 15 that complies
with TIA Section 313(a). The Trustee also shall comply with TIA Sections
313(b)(2) and 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the Commission and
each stock exchange, if any, on which the Senior Subordinated Notes are listed
in accordance with TIA Section 313(d). The Company shall notify the Trustee if
the Senior Subordinated Notes become listed on any stock exchange and of any
delisting thereof.
48
SECTION 7.07 Compensation and Indemnity.
---------------------------
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder as agreed by the Trustee and the Company. 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 incurred or made by it. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee=s
agents and counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability incurred by it except for such actions
to the extent caused by any negligence or bad faith on its part, arising out of
or in connection with the administration of this trust and its rights or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
written consent. The Company need not reimburse any expense or indemnify against
any loss or liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct.
To secure the Company=s payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Senior Subordinated Notes on
all assets held or collected by the Trustee, in its capacity as Trustee, except
assets held in trust to pay principal of or interest on particular Senior
Subordinated Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6), (7) or (8) occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The obligations of the Company under this Section 7.07 shall
survive the resignation or removal of the Trustee and the satisfaction and
discharge of this Indenture.
The Trustee shall comply with the provisions TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08 Replacement of Trustee.
-----------------------
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the outstanding Senior Subordinated
Notes may remove the Trustee by so notifying the Company and the Trustee and may
appoint a successor trustee with the Company=s consent. The Company may remove
the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
49
(3) a receiver 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 Company shall notify each Holder of
such event and shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the Senior Subordinated Notes may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
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 principal amount of the outstanding
Senior Subordinated Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
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.
SECTION 7.09 Successor Trustee by Merger, Etc.
---------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification.
------------------------------
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a). The Trustee shall have a combined capital
and surplus of at least $100 million (or be a member or subsidiary of a bank
holding system with aggregate combined capital and surplus of at least $100
million) as set forth in its most recent published annual report of condition.
The Trustee shall comply with TIA Section 310(b).
50
SECTION 7.11 Preferential Collection of Claims Against the Company.
------------------------------------------------------
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
ARTICLE EIGHT
SUBORDINATION
SECTION 8.01 Senior Subordinated Notes Subordinate to Senior Indebtedness.
-------------------------------------------------------------
The Company covenants and agrees, and each Holder of a Senior
Subordinated Note, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article, the
Indebtedness represented by the Senior Subordinated Notes and the payment of the
principal of, premium, if any, and interest on each and all of the Senior
Subordinated Notes are hereby expressly made subordinate and subject in right of
payment as provided in this Article to the prior payment in full of all Senior
Indebtedness.
This Article Eight shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue to
hold Senior Indebtedness; and such provisions are made for the benefit of the
holders of Senior Indebtedness; and such holders are made obligees hereunder and
they or each of them may enforce such provisions.
The provisions of this Article Eight shall not be applicable
from and after the date of Legal Defeasance or Covenant Defeasance pursuant to
Sections 10.02 or 10.03, respectively, of this Indenture.
SECTION 8.02 Payment Over of Proceeds Upon Dissolution, Etc.
-----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshalling of assets or liabilities of the Company, then
and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full of all amounts due on or in respect of all Senior
Indebtedness, or provision shall be made for such payment, before the Holders of
the Senior Subordinated Notes are entitled to receive any payment or
distribution of any kind or character (other than in Permitted Junior
Securities) on account of principal of, premium, if any, or interest on the
Senior Subordinated Notes; and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (excluding
Permitted Junior Securities) , by set-off or otherwise, to which the Holders or
the Trustee would be entitled but for the provisions
51
of this Article shall be paid by the liquidating trustee or agent or other
Person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section 8.02, the Trustee or the Holder of any Senior
Subordinated Notes shall have received any payment or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
in respect of principal, premium, if any, and interest on the Senior
Subordinated Notes before all Senior Indebtedness is paid in full or payment
thereof provided for, then and in such event such payment or distribution
(excluding Permitted Junior Securities) shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Company for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article Five shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in Article Five.
SECTION 8.03 Suspension of Payment When Senior Indebtedness in Default.
----------------------------------------------------------
(a) Unless Section 8.02 shall be applicable, upon (1) the
occurrence of a Payment Default and (2) receipt by the Trustee from the Company
or the holders of Senior Indebtedness of written notice of such occurrence, then
no payment or distribution of any assets of the Company of any of any kind or
character (excluding Permitted junior Securities) shall be made by the Company
on account of principal of, or premium, if any, or interest on the Senior
Subordinated Notes or on account of the purchase or redemption or other
acquisition of the Senior Subordinated Notes unless and until such Payment
Default shall have been cured or waived or shall have ceased to exist or such
Senior indebtedness shall have been discharged or paid in full or payment
thereof provided for, after which the Company shall resume making any and all
required payments in respect of the Senior Subordinated Notes, including any
missed payments.
52
(b) Unless Section 8.02 shall be applicable, upon (1) the
occurrence of a Covenant Default and (2) receipt by the Trustee from the Senior
Representative of written notice of such occurrence, no payment or distribution
of any assets of the Company of any kind or character (excluding Permitted
Junior Securities) may be made by the Company on account of any principal of,
premium, if any, or interest on the Senior Subordinated Notes or on account of
the purchase or redemption or other acquisition of the Senior Subordinated Notes
for a period (the APayment Blockage Period@) commencing on the date of receipt
by the Trustee of such notice and ending on (subject to any blockage of payments
that may then be in effect under subsection (a) of this Section 8.03) the
earliest of (x) 179 days in the case of Indebtedness under the Senior Secured
Credit Facility, and 119 days in the case of other Designated Senior
Indebtedness, after the receipt of such written notice by the Trustee (provided
the Designated Senior Indebtedness with respect to which such Covenant Default
shall have occurred shall theretofore have not been accelerated), (y) the date
on which such Covenant Default shall have been cured or waived or shall have
ceased to exist or such Designated Senior Indebtedness shall have been
discharged or paid in full or payment thereof provided for or (z) the date on
which such Payment Blockage Period shall have been terminated by written notice
to the Company or the Trustee from the Senior Representative initiating such
Payment Blockage Period, or the holders of at least a majority in principal
amount of such issue of Designated Senior Indebtedness, after which, in the case
of clause (x), (y) or (z), the Company shall resume making any and all required
payments in respect of the Senior Subordinated Notes, including any missed
payments. Notwithstanding any other provision of this Indenture, only one
Payment Blockage Period may be commenced with respect to the Senior Subordinated
Notes within any 365-day period and no Covenant Default with respect to
Designated Senior Indebtedness which existed or was continuing on the date of
the commencement of any Payment Blockage Period will be, or can be, made the
basis for the commencement of a second Payment Blockage Period, whether or not
within a period of 365 consecutive days, unless such event of default shall have
been cured or waived for a period of not less than 90 consecutive days. In no
event shall a Payment Blockage Period extend beyond 179 days from the date of
the receipt of the notice referred to in clause (2) hereof.
(c) In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Senior Subordinated
Notes prohibited by the foregoing provisions of this Section, then and in such
event such payment shall be paid over and delivered forthwith to the Senior
Representative or other representative of the holders of the Designated Senior
Indebtedness or the holders of Senior Indebtedness, as applicable, or as a court
of competent jurisdiction shall direct.
SECTION 8.04 Payment Permitted if No Default.
--------------------------------
Nothing contained in this Article, elsewhere in this Indenture or
in any of the Senior Subordinated Notes shall prevent the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company referred to in Section 8.02 or under the
conditions described in Section 8.03, from making payments at any time of
principal of, premium, if any, or interest on the Senior Subordinated Notes.
53
SECTION 8.05 Subrogation to Rights of Holders of Senior Indebtedness.
--------------------------------------------------------
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Senior Subordinated Notes shall be subrogated to the rights of
the holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest on the Senior Subordinated Notes
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness of any cash, property or
securities to which the Holders of the Senior Subordinated Notes or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Senior Subordinated Notes or the Trustee, shall,
as among the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Senior Subordinated Notes, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 8.06 Provisions Solely to Define Relative Rights.
--------------------------------------------
The provisions of this Article are intended solely for the
purpose of defining the relative rights of the Holders of the Senior
Subordinated Notes on the one hand and the holders of Senior Indebtedness on the
other hand. Nothing contained in this Article or elsewhere in this Indenture or
in the Senior Subordinated Notes is intended to or shall (a) impair, as among
the Company, its creditors other than holders of Senior Indebtedness and the
Holders of the Senior Subordinated Notes, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders of the Senior Subordinated
Notes the principal of, premium, if any, and interest on the Senior Subordinated
Notes as and when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the Company of the Holders of
the Senior Subordinated Notes and creditors of the Company other than the
holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any
Senior Subordinated Notes 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 Indebtedness (1) in any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of the
Company referred to in Section 8.02, to receive, pursuant to and in accordance
with such Section, cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder, or (2) under the conditions specified
in Section 8.03, to prevent any payment prohibited by such Section or enforce
their rights pursuant to Section 8.03(c).
SECTION 8.07 Trustee to Effectuate Subordination Provisions.
-----------------------------------------------
Each Holder of a Senior Subordinated Notes by his acceptance
thereof authorizes and 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 any and all such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the Indebtedness of the
54
Company owing to such Holder in the form required in such proceedings and the
causing of such claim to be approved.
SECTION 8.08 No Waiver of Subordination Provisions.
--------------------------------------
(a) No right of any present or future holder of any Senior
indebtedness to enforce subordination as herein provided 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 non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such Holder may have
or be otherwise charged with.
(b) Without limiting the generality of Subsection (a) of this
Section, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Senior Subordinated Notes, without incurring responsibility to the Holders of
the Senior Subordinated Notes and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of the
Holders of the Senior Subordinated Notes to the holders of Senior Indebtedness,
do any one or more of the following: (1) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (3)
release any Person liable in any manner for the collection or payment of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against the
Company and any other Person; provided, however, that in no event shall any such
actions limit the right of the Holders of the Senior Subordinated Notes to take
any action to accelerate the maturity of the Senior Subordinated Notes pursuant
to Article Six of this Indenture or to pursue any rights or remedies hereunder
or under applicable laws if the taking of such action does not otherwise violate
the terms of this Article.
SECTION 8.09 Notice to Trustee.
------------------
(a) 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 Senior Subordinated Notes.
Notwithstanding the provisions of this Article or any provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Senior Subordinated Notes, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee, fiduciary or
55
agent therefor; and, prior to the receipt of any such written notice, the
Trustee shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least three Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Senior Subordinated Notes), then, anything herein
contained to the contrary notwithstanding but without limiting the rights and
remedies of the holders of Senior Indebtedness or any trustee, fiduciary or
agent thereof, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
within three Business Days prior to such date; nor shall the Trustee be charged
with knowledge of the curing of any such default or the elimination of the act
or condition preventing any such payment unless and until the Trustee shall have
received an Officers= Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to it
of a written notice to the Trustee and the Company by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee, fiduciary or agent
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor); provided, however,
that failure to give such notice to the Company shall not affect in any way the
ability of the Trustee to rely on such notice. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness 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 Indebtedness 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 8.10 Reliance on Judicial Order or Certificate of Liquidating
Agent.
-------------------------------------------------------------
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the Senior
Subordinated Notes shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating Trustee, custodian, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of Senior Subordinated Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness 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,
provided that the foregoing shall apply only if such court has been fully
apprised of the provisions of this Article.
SECTION 8.11 Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee=s Rights.
-------------------------------------------------------------
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder. Nothing in this is Article shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.07.
56
SECTION 8.12 Article Applicable to Paying Agents.
------------------------------------
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting under this Indenture, the
term ATrustee@ as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 8.11 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 8.13 No Suspension of Remedies.
--------------------------
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Senior Subordinated Notes to take any action to
accelerate the maturity of the Senior Subordinated Notes pursuant to Article Six
of this Indenture or to pursue any rights or remedies hereunder or under
applicable law, succeed to the rights, if any, under this Article of the
Holders, from time to time, of Senior Indebtedness.
SECTION 8.14 Trustees Relation to Senior Indebtedness.
-----------------------------------------
With respect to the holders of Senior Indebtedness, 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 Indebtedness shall be read
into this Article against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall mistakenly pay
over or deliver to Holders, the Company or any other Person moneys or assets to
which any holder of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
ARTICLE NINE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 9.01 Option to Effect Legal Defeasance or Covenant Defeasance.
---------------------------------------------------------
The Company may, at the option of its Board of Directors
evidenced by a Board Resolution, at any time, elect to have either Section 9.02
or 9.03 hereof be applied to all outstanding Senior Subordinated Notes upon
compliance with the conditions set forth below in this Article Nine.
SECTION 9.02 Legal Defeasance and Discharge.
-------------------------------
Upon the Company's exercise under Section 9.01 hereof of the
option applicable to this Section 9.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 9.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Senior
Subordinated Notes on the date the conditions set forth below are satisfied
(hereinafter, ALegal Defeasance@). For this purpose, Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by the
57
outstanding Senior Subordinated Notes, which shall thereafter be deemed to be
outstanding only for the purposes of Section 9.05 and the other Sections of this
Indenture referred to in (i) through (iv) below, and to have satisfied all its
other obligations under such Senior Subordinated Notes and this Indenture (and
the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of holders of such outstanding Senior Subordinated Notes to receive,
solely from the trust fund described in Section 9.05, payments in respect of the
principal of, premium, if any, and interest on such Senior Subordinated Notes
when such payments are due, (ii) the Company=s obligations with respect to the
Senior Subordinated Notes under Article Two and Section 4.02 hereof, (iii) the
rights, powers, trust, duties and immunities of the Trustee, and the Company=s
obligations in connection therewith and (iv) this Article Nine. Subject to
compliance with this Article Nine, the Company may exercise its option under
this Section 9.02 notwithstanding the prior exercise of its option under Section
9.03 hereof.
SECTION 9.03 Covenant Defeasance.
--------------------
Upon the Company's exercise under Section 9.01 hereof of the
option applicable to this Section 9.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 9.04 hereof, be released
from its obligations under the covenants contained in Sections 4.03, 4.04, 4.12,
4.13, 4.14, 4.15, 4.16, 4.18, 4.19, 4.20, 4.21, 4.22, 4.23, 4.24, 4.25, 4.26 and
Sections 5.01(b)(ii)(A) and 5.01(b)(ii)(D) hereof, and the provisions of
Articles Five Eight and Twelve shall not apply, with respect to the outstanding
Senior Subordinated Notes on and after the date the conditions set forth below
are satisfied (hereinafter, ACovenant Defeasance@), and the Senior Subordinated
Notes shall thereafter be deemed not Aoutstanding@ for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed Aoutstanding@ for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Senior Subordinated Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and such
Senior Subordinated Notes shall be unaffected thereby.
SECTION 9.04 Conditions to Legal or Covenant Defeasance.
-------------------------------------------
The following shall be the conditions to the application of
either Section 9.02 or 8.03 hereof to the outstanding Senior Subordinated Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee or
Paying Agent, in trust, for the benefit of the Holders, U.S. Legal Tender, U.S.
Government Obligations which, through the scheduled payment of principal and
interest in respect thereof in accordance with their
58
terms will provide, not later than one Business Day before the due date for any
payment, money in an amount, or a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized firm of independent
public accountants, expressed in a written certification thereof delivered to
the Trustee, to pay the principal of, premium, if any, and interest on the
Senior Subordinated Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, of such principal or installment
of principal of, premium, if any, or interest on the Senior Subordinated Notes;
(b) in the case of an election under Section 9.02 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture, there has been a
change in the applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the Holders
of the Senior Subordinated Notes will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such Legal Defeasance and will
be subject to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of an election under Section 9.03 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the Holders
of the Senior Subordinated Notes will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such Covenant Defeasance and
will be subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and
be continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness all or a portion of the
proceeds of which will be used to defease the Senior Subordinated Notes pursuant
to this Article Nine concurrently with such incurrence) or insofar as Sections
6.01(6) and 6.01(7) hereof are concerned, shall have occurred at any time in the
period ending on the 91st day after the date of such deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a Default under, this
Indenture, or a default under the Senior Indebtedness or any other material
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the trust funds established pursuant to
this Article will not be subject to any rights of holders of Senior
Indebtedness, including, without limitations, those arising under Article Eight
of this Indenture, and to the effect that after the 91st day following the
deposit, such trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors=
rights generally;
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(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company;
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with;
(i) such Legal Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the meaning of the TIA
(assuming for the purpose of this clause (i) that all Senior Subordinated Notes
are in default within the meaning of the TIA); and
(j) such Legal Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended, unless
such trust shall be registered under such act or exempt from registration
thereunder.
SECTION 9.05 Deposited U.S. Legal Tender and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
-------------------------------------------------------------
Subject to Section 9.06 hereof, all U.S. Legal Tender and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
9.05, the ATrustee@) pursuant to Section 9.04 hereof in respect of the
outstanding Senior Subordinated Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Senior Subordinated Notes and
this Indenture, to the payment, either directly or through any Paying Agent, as
the Trustee may determine, to the Holders of such Senior Subordinated Notes of
all sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such U.S. Legal Tender and U.S. Government Obligations need
not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 9.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Senior Subordinated Notes.
Anything in this Article Nine to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
Company=s request any U.S. Legal Tender or U.S. Government Obligations held by
it as provided in Section 9.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 9.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
60
SECTION 9.06 Repayment to the Company.
-------------------------
Any U.S. Legal Tender or U.S. Government Obligations deposited
with the Trustee or any Paying Agent, in trust for the payment of the principal
of, premium, if any, or interest on any Senior Note and remaining unclaimed for
two years after such principal, and premium, if any, or interest has become due
and payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Senior Note
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 9.07 Reinstatement.
--------------
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 9.02 or 9.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company=s obligations under this Indenture and the Senior
Subordinated Notes, and the Guarantors= obligations under this Indenture and the
Guarantee, shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.02 or 9.03 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such U.S. Legal Tender and U.S. Government
Obligations in accordance with Section 9.02 or 9.03 hereof, as the case may be;
provided, however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Senior Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Senior Subordinated Notes to receive such payment from the U.S. Legal
Tender and U.S. Government Obligations held by the Trustee or Paying Agent after
payment in full of the Senior Subordinated Notes.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVER
SECTION 10.01 Without Consent of Holders of Senior Subordinated Notes.
--------------------------------------------------------
Notwithstanding Section 10.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Senior
Subordinated Notes without the consent of any Holder of a Senior Note:
(a) to evidence the succession of another Person to the
Company and the Guarantors and the assumption by such successor of the
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covenants and Obligations of the Company under this Indenture and contained in
the Senior Subordinated Notes and of the Guarantors contained in this Indenture
and the Guarantees;
(b) to add to the covenants of the Company, for the benefit
of Holders, or to surrender any right or power conferred upon the Company or the
Guarantors by this Indenture;
(c) to add any additional Events of Default;
(d) to provide for uncertificated Senior Subordinated Notes
in addition to or in place of certificated Senior Subordinated Notes;
(e) to evidence and provide for the acceptance of
appointment under this Indenture by the successor Trustee;
(f) to secure the Senior Subordinated Notes and/or the
Guarantees;
(g) to cure any ambiguity, to correct or supplement any
provision in this Indenture which may be inconsistent with any other provision
herein or to add any other provisions with respect to matters or questions
arising under this Indenture, provided that such actions will not materially and
adversely affect the interests of Holders;
(h) to add or release any Guarantor pursuant to the terms of
this Indenture; or
(i) to comply with the requirements of the Commission to
effect or maintain the qualification of the Indenture under the TIA.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 10.07 hereof,
the Trustee shall join with the Company in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 10.02 With Consent of Holders of Senior Subordinated Notes.
-----------------------------------------------------
Except as provided below in this Section 10.02, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture and the Senior
Subordinated Notes may be amended or supplemented with the consent of the
Holders of at least a majority in aggregate principal amount of the Senior
Subordinated Notes then outstanding, and, subject to Sections 7.04 and 7.07
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of, premium, if any, or, interest on
the Senior Subordinated Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Senior Subordinated Notes may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Senior Subordinated Notes.
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Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Senior Subordinated Notes as aforesaid, and upon
receipt by the Trustee of the documents described in Section 10.07 hereof, the
Trustee shall join with the Company and the Guarantors in the execution of such
amended or supplemental Indenture unless such amended or supplemental Indenture
affects the Trustee=s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of
Senior Subordinated Notes 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.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Senior Subordinated
Notes affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental Indenture or waiver. Subject to Sections 7.04 and 7.07 hereof,
the Holders of a majority in aggregate principal amount of the Senior
Subordinated Notes then outstanding may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Senior
Subordinated Notes. However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Senior Subordinated Notes held
by a non-consenting Holder):
(a) reduce the principal amount of Senior Subordinated Notes
whose Holders must consent to an amendment, supplement or waiver of any
provision of this Indenture or the Senior Subordinated Notes;
(b) reduce the principal of or change the fixed maturity of
any Senior Note or alter the provisions with respect to the redemption of Senior
Subordinated Notes pursuant to Article Three of this Indenture or alter the
provisions, including the purchase price payable, with respect to repurchases of
the Senior Subordinated Notes pursuant to Section 4.18 hereof;
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Senior Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Senior Subordinated Notes or
that resulted from a failure to comply with Section 4.18 hereof (except a
rescission of acceleration of the Senior Subordinated Notes by the Holders of at
least a majority in aggregate principal amount of the Senior Subordinated Notes
and a waiver of the payment default that resulted from such acceleration);
(e) make the principal of, or the interest on, any Senior
Note payable in any manner other than that stated in this Indenture and the
Senior Subordinated Notes on the Issue Date;
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(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Senior
Subordinated Notes to receive payments of principal of or interest on the Senior
Subordinated Notes;
(g) waive a redemption payment with respect to any Senior
Note;
(h) alter the ranking of the Senior Subordinated Notes
relative to other Indebtedness of the Company or the Guarantors;
(i) make any change in the amendment and waiver provisions
of this Indenture or the Senior Subordinated Notes;
(j) impair the right of any Holder to receive payment of
principal of and interest on such Holder=s Senior Subordinated Notes on or after
the due dates therefor or to institute suit for the enforcement of any payment
on or with respect to such Holder=s Senior Subordinated Notes;
(k) release any Guarantor from its Guarantee, except as
provided herein; or
(l) make any change in Sections 7.04 or 7.07 or modify any
of the provisions of this Section 10.02 (except to increase any percentage set
forth herein).
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Senior Subordinated Notes as aforesaid, and upon
receipt by the Trustee of the documents described in Section 10.07 hereof, the
Trustee shall join with the Company in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of
Senior Subordinated Notes 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 10.03 Effect of Supplemental Indentures.
----------------------------------
Upon the execution of any supplemental indenture under this
Article Ten, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Senior Subordinated Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby. After a
supplemental indenture becomes effective, the Company shall mail to Holders a
notice briefly describing such amendment. The failure to give such notice to all
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section.
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SECTION 10.04 Compliance with TIA.
--------------------
Every amendment, waiver or supplement of this Indenture or
the Senior Subordinated Notes shall comply with the TIA.
SECTION 10.05 Revocation and Effect of Consents.
----------------------------------
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Senior Note or portion of a Senior Note that evidences
the same debt as the consenting Holder=s Senior Note, even if notation of the
consent is not made on any Senior Note. However, any such Holder or subsequent
Holder may revoke the consent as to his Senior Note or portion of his Senior
Note by notice to the Trustee or the Company received before the date on which
the Trustee receives an Officers= Certificate certifying that the Holders of the
requisite principal amount of Senior Subordinated Notes 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 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 any of
clauses (a) through (l) of Section 10.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Senior Note who has
consented to it, and every subsequent Holder of a Senior Note or portion of a
Senior Note that evidences the same debt as the consenting Holder=s Senior Note;
provided that any such waiver shall not impair or affect the right of any Holder
to receive payment of principal of and interest on a Senior Note, on or after
the respective due dates expressed in such Senior Note, or to bring suit for the
enforcement of any such payment on or after such respective dates without the
consent of such Holder.
SECTION 10.06 Notation on or Exchange of Senior Subordinated Notes.
-----------------------------------------------------
If an amendment, supplement or waiver changes the terms of a
Senior Note, the Trustee may require the Holder of the Senior Note to deliver it
to the Trustee. The Trustee may place an appropriate notation on the Senior Note
about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Senior
Note shall issue and the Trustee shall authenticate a new Senior Note that
reflects the changed terms. Any such notation or exchange shall be made at the
sole cost and expense of the Company.
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SECTION 10.07 Trustee to Sign Supplemental Indentures.
----------------------------------------
The Trustee shall sign any supplemental Indenture authorized
pursuant to this Article Ten if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. Neither the
Company nor a Guarantor may sign a supplemental Indenture until the Board of
Directors of such Person approves it. In executing any supplemental indenture,
the Trustee shall be entitled to receive indemnity reasonably satisfactory to it
and to receive and (subject to Section 7.01) shall be fully protected in relying
upon, in addition to the documents required by Section 10.01 or 10.02, an
Officers= Certificate and an Opinion of Counsel stating that:
(a) such supplemental indenture is authorized or permitted
by this Indenture and that all conditions precedent to the execution, delivery
and performance of such supplemental indenture have been satisfied;
(b) the Company and the Guarantors have all necessary
corporate power and authority to execute and deliver the supplemental indenture
and that the execution, delivery and performance of such supplemental indenture
has been duly authorized by all necessary corporate action of the Company and
the Guarantors;
(c) the execution, delivery and performance of the
supplemental indenture do not conflict with, or result in the breach of or
constitute a default under any of the terms, conditions or provisions of (i)
this Indenture, (ii) the charter documents and by-laws of the Company or any
Guarantor, or (iii) any material agreement or instrument to which the Company or
any Guarantor is subject and of which such counsel is aware;
(d) to the knowledge of legal counsel writing such Opinion
of Counsel, the execution, delivery and performance of the supplemental
indenture do not conflict with, or result in the breach of any of the terms,
conditions or provisions of (i) any law or regulation applicable to the Company
or any Guarantor, or (ii) any material order, writ, injunction or decree of any
court or governmental instrumentality applicable to the Company or any
Guarantor;
(e) such supplemental indenture has been duly and validly
executed and delivered by the Company and the Guarantors, and this Indenture
together with such supplemental indenture constitutes a legal, valid and binding
obligations of the Company and the Guarantors enforceable against the Company
and the Guarantors, as applicable, in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors= rights generally and general equitable
principles (whether considered in a proceeding at law or in equity); and
(f) this Indenture together with such amendment or
supplement complies with the TIA.
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ARTICLE ELEVEN
MEETINGS OF SECURITYHOLDERS
SECTION 11.01 Purposes for Which Meetings May Be Called.
------------------------------------------
A meeting of Securityholders may be called at any time and from
time to time pursuant to the provisions of this Article Eleven for any of the
following purposes:
(a) to give any notice to the Company or to the Trustee, or
to give any directions to the Trustee, or to waive or to consent to the waiving
of any Default or Event of Default hereunder and its consequences, or to take
any other action authorized to be taken by Securityholders pursuant to any of
the provisions of Article Six;
(b) to remove the Trustee or appoint a successor Trustee
pursuant to the provisions of Article Seven;
(c) to consent to an amendment, supplement or waiver
pursuant to the provisions of Section 10.02; or
(d) to take any other action (i) authorized to be taken by
or on behalf of the Holders of any specified aggregate principal amount of the
Senior Subordinated Notes under any other provision of this Indenture, or
authorized or permitted by law or (ii) which the Trustee deems necessary or
appropriate in connection with the administration of this Indenture.
SECTION 11.02 Manner of Calling Meetings.
---------------------------
The Trustee may at any time call a meeting of Securityholders to
take any action specified in Section 11.01, to be held at such time and at such
place in The City of New York, New York or elsewhere as the Trustee shall
determine. Notice of every meeting of Securityholders, setting forth the time
and place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed by the Trustee, first-class postage prepaid, to
the Company and to the Holders at their last addresses as they shall appear on
the registration books of the Registrar not less than 10 nor more than 60 days
prior to the date fixed for a meeting.
Any meeting of Securityholders shall be valid without notice if
the Holders of all Senior Subordinated Notes then outstanding are present in
person or by proxy, or if notice is waived before or after the meeting by the
Holders of all Senior Subordinated Notes outstanding, and if the Company, the
Guarantors and the Trustee are either present by duly authorized representatives
or have, before or after the meeting, waived notice.
SECTION 11.03 Call of Meetings by the Company or Holders.
-------------------------------------------
In case at any time the Company, pursuant to a Board Resolution,
or the Holders of not less than 10% in aggregate principal amount of the Senior
Subordinated Notes then outstanding shall have requested the Trustee to call a
meeting of Securityholders to take any action specified in Section 11.01, by
written request setting forth in reasonable detail the action
67
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Company or the Holders of Senior Subordinated Notes in the amount above
specified may determine the time and place in The City of New York, New York or
elsewhere for such meeting and may call such meeting for the purpose of taking
such action, by mailing or causing to be mailed notice thereof as provided in
Section 11.02.
SECTION 11.04 Who May Attend and Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Securityholders, a
Person shall (a) be a registered Holder of one or more Senior Subordinated
Notes, or (b) be a Person appointed by an instrument in writing as proxy for the
registered Holder or Holders of Senior Subordinated Notes. The only Persons who
shall be entitled to be present or to speak at any meeting of Securityholders
shall be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company, the Guarantors and their respective counsel.
SECTION 11.05 Regulations May Be Made by Trustee; Conduct of the Meeting;
Voting Rights; Adjournment.
-------------------------------------------------------------
Notwithstanding any other provision of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
action by or any meeting of Securityholders, in regard to proof of the holding
of Senior Subordinated Notes and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, and submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
appropriate. Such regulations may fix a record date and time for determining the
Holders of record of Senior Subordinated Notes entitled to vote at such meeting,
in which case those and only those Persons who are Holders of Senior
Subordinated Notes at the record date and time so fixed, or their proxies, shall
be entitled to vote at such meeting whether or not they shall be such Holders at
the time of the meeting.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in Section 11.03, in which case
the Company or the Securityholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Holders of a
majority in principal amount of the Senior Subordinated Notes represented at the
meeting and entitled to vote.
At any meeting each Securityholder or proxy shall be entitled to
one vote for each $1,000 principal amount of Senior Subordinated Notes held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Senior Subordinated Notes challenged as not
outstanding and ruled by the chairman of the
meeting to be not outstanding. The chairman may adjourn any such meeting if he
is unable to determine whether any Holder or proxy shall be entitled to vote at
such meeting. The chairman of the meeting shall have no right to vote other than
by virtue of Senior Subordinated Notes held by him or instruments in writing as
aforesaid duly designating him as the proxy to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called pursuant to the
provisions of Section 11.02 or Section 11.03 may be adjourned from time to time
by vote of the Holders of a majority in aggregate principal amount of the Senior
Subordinated Notes represented at the meeting and entitled to vote, and the
meeting may be held as so adjourned without further notice.
SECTION 11.06 Voting at the Meeting and Record to Be Kept.
--------------------------------------------
The vote upon any resolution submitted to any meeting of
Securityholders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Senior Subordinated Notes or of their
representatives by proxy and the principal amount of the Senior Subordinated
Notes voted by the ballot. The permanent chairman of the meeting shall appoint
two inspectors of votes, who cast proxies at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of the Securityholders shall be
prepared by the secretary of the meeting and there shall be attached to such
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts, setting forth a copy of the notice of the meeting and showing that such
notice was mailed as provided in Section 11.02 or published as provided in
Section 11.03. The record shall be signed and verified by the affidavits of the
permanent chairman and the secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 11.07 Exercise of Rights of Trustee or Securityholders May Not Be
Hindered or Delayed by Call of Meeting.
-------------------------------------------------------------
Nothing contained in this Article Eleven shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of
Securityholders or any rights expressly or impliedly conferred hereunder to make
such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Securityholders under any of
the provisions of this Indenture or of the Senior Subordinated Notes.
ARTICLE TWELVE
GUARANTEE OF SENIOR SUBORDINATED NOTES
SECTION 12.01 Unconditional Guarantee.
------------------------
(a) Each Guarantor hereby unconditionally, jointly and
severally, guarantees as a primary obligor and not as a surety (such guarantee
to be referred to herein as the AGuarantee@) to each Holder of a Senior Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, the Senior Subordinated Notes and the obligations of the Company
hereunder or thereunder, including that: (i) the principal of and premium, if
any, and interest on the Senior Subordinated Notes 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, if any,
69
and interest on any interest to the extent lawful, of the Senior Subordinated
Notes and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder (including, without limitation, all redemption
obligations under Section 3.07 and all purchase obligations under Section 4.18)
will be promptly paid in full or performed all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment or
renewal of any Senior Subordinated Notes or of any such other obligations, the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, subject to any applicable grace period,
whether at stated maturity, by acceleration or otherwise, subject, however, to
the limitations set forth in Section 12.05. Each Guarantor hereby agrees that
its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Senior Subordinated Notes or this Indenture,
the absence of any action to enforce the same, any waiver or consent by any
Holder of the Senior Subordinated Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Senior Subordinated Notes, this
Indenture and this Guarantee. If any Securityholder or the Trustee is required
by any court or otherwise to return to the Company or any Guarantor or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or any Guarantor, any amount paid by the Company or any Guarantor to
the Trustee or such Securityholder, 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 purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any acceleration of such obligations as provided in Article Six,
such obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of this Guarantee.
(b) Each Guarantor further agrees that its Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Securityholder or the Trustee held for payment of the Guarantees.
(c) Each Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys= fees) incurred by the Trustee or any
Securityholder in enforcing any rights under this Article Twelve.
70
SECTION 12.02 Seniority of Guarantee.
-----------------------
The obligations of each Guarantor to the Holders of Senior
Subordinated Notes and to the Trustee pursuant to the Guarantee and this
Indenture are expressly senior unsecured obligations of such Guarantor.
SECTION 12.03 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 12.04 Release of a Guarantor.
-----------------------
If no Default or Event of Default exists or would exist under
this Indenture upon the sale or disposition (or the sale or disposition of
substantially all of the assets) of a Guarantor to a Person which is not a
Subsidiary of the Company, which sale or disposition is otherwise in compliance
with the terms of this Indenture, including, without limitation, Section 4.18,
such Guarantor shall be deemed released from all its obligations under this
Article Twelve and its Guarantee without any further action required on the part
of the Trustee or any Holder. The Trustee shall deliver an appropriate
instrument evidencing such release upon receipt of a request by the Company
accompanied by an Opinion of Counsel and an Officers= Certificate certifying as
to the compliance with this Section 12.04. Any Guarantor not so released remains
liable for the full amount of principal of and premium, if any, and interest on
the Senior Subordinated Notes and other obligations as provided in this Article
Twelve.
SECTION 12.05 Limitation of Guarantor=s Liability.
------------------------------------
Each Guarantor and by its acceptance hereof each Holder 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 the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law. To
effectuate the foregoing intention, the Holders and each 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 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 12.07, result in the obligations of such Guarantor under the
Guarantee not constituting such fraudulent conveyance or fraudulent transfer
under any applicable Bankruptcy Law or not otherwise being void, voidable or
unenforceable under any applicable Bankruptcy Law.
SECTION 12.06 Guarantors May Consolidate, etc., on Certain Terms.
---------------------------------------------------
Nothing contained in this Indenture or in any of the Senior
Subordinated Notes shall prevent any consolidation or merger of a Guarantor with
or into the Company or another Person that is a Guarantor as of the Issue Date
or shall prevent any sale or conveyance of
71
the property of a Guarantor as an entirety or substantially as an entirety, to
the Company or another Person that is a Guarantor as of the Issue Date.
(b) Except as set forth in Articles Four and Five hereof,
nothing contained in this Indenture or in any of the Senior Subordinated Notes
shall prevent any consolidation or merger of a Guarantor with or into a
corporation or corporations other than the Company or another Person that is a
Guarantor as of the Issue Date (whether or not affiliated with such Guarantor),
or successive consolidations or mergers in which a Guarantor or its successor or
successors shall be a party or parties, or shall prevent any sale or conveyance
of the property of a Guarantor as an entirety or substantially as an entirety,
to a corporation other than the Company or another Person that is a Guarantor as
of the Issue Date (whether or not affiliated with such Guarantor); provided,
however, that, subject to Sections 12.04 and 12.06(a), (i) such transaction does
not violate any covenants set forth in Articles Four and Five hereof, (ii)
immediately after such transaction, and giving effect thereto, no Default or
Event of Default shall have occurred as a result of such transaction and be
continuing, (iii) upon any such consolidation, merger, sale or conveyance, the
Guarantee set forth in this Article Twelve, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed by such Guarantor, shall be expressly assumed (in the event that the
Guarantor is not the surviving corporation in the merger), by supplemental
indenture satisfactory in form to the Trustee, executed and delivered to the
Trustee, by the Person formed by such consolidation, or into which the Guarantor
shall have merged, or by the Person that shall have acquired such property, and
(iv) the Company shall have delivered to the Trustee an officers= Certificate
and an Opinion of Counsel, each stating that such consolidation, merger, sale or
conveyance and such indenture comply with this Indenture, that the Person formed
by or surviving such transaction agrees to be bound hereby, and that all
conditions precedent herein provided to such transaction have been satisfied. In
the case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture executed and
delivered to the Trustee and satisfactory in form to the Trustee of the due and
punctual performance of all of the covenants and conditions of this Indenture to
be performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor.
SECTION 12.07 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 AFunding 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 Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company=s
obligations with respect to the Senior Subordinated Notes or any other
Guarantor=s obligations with respect to the Guarantee.
72
SECTION 12.08 Waiver of Subrogation.
----------------------
Each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of such Guarantor=s
obligations under the Guarantee and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Senior Subordinated Notes against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding
sentence and the Senior Subordinated Notes shall not have been paid in full,
such amount shall have been deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Holders of the Senior
Subordinated Notes, and shall forthwith be paid to the Trustee for the benefit
of such Holders to be credited and applied upon the Senior Subordinated Notes,
whether matured or unmatured, in accordance with the terms of this Indenture.
Each Guarantor acknowledges that it will receive direct and indirect benefits
from the financing arrangements contemplated by this Indenture and that the
waiver set forth in this Section 12.08 is knowingly made in contemplation of
such benefits.
SECTION 12.09 Subordination of Guarantee.
---------------------------
Each Guarantor covenants and agrees, and each Holder of a Senior
Subordinated Note, by his acceptance thereof, likewise covenants and agrees that
the Guarantee in Section 12.01 hereof is hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all Guarantor Senior
Indebtedness of such Guarantor, in the same manner and to the same extent as the
Senior Subordinated Notes are subordinated to Senior Indebtedness pursuant to
Article Eight hereof; provided, however, that the Indebtedness of each Guarantor
represented by the Guarantee in Section 12.01 shall in all respects rank prior
to all existing and future Indebtedness of such Guarantor that is subordinated
to Guarantor Senior Indebtedness, or to any guarantee of Senior Indebtedness.
SECTION 12.10 Execution of Guarantee.
-----------------------
To evidence the Guarantee to the Securityholders specified in
Section 12.01, the Guarantors hereby agree to execute the notation of guarantee
in substantially the form of Exhibit A recited to be endorsed on each Senior
Note ordered to be authenticated and delivered by the Trustee. Each Guarantor
hereby agrees that its Guarantee set forth in Section 12.01 shall remain in full
force and effect notwithstanding any failure to endorse on each Senior Note a
notation of such Guarantee. Each such notation of guarantee shall be signed on
behalf of each Guarantor by two Officers, or an Officer and an Assistant
Secretary or one Officer shall sign and one Officer or an Assistant Secretary
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to such notation of guarantee prior to the
authentication of the Senior Note on which it is endorsed, and the delivery of
such Senior Note on which it is endorsed, and the delivery of such Senior Note
by the Trustee, after the
73
authentication thereof hereunder, shall constitute due delivery of such notation
of guarantee on behalf of such Guarantor. Such signatures upon the notation of
guarantee may be by manual or facsimile signature of such officers and may be
imprinted or otherwise reproduced on the notation of guarantee, and in case any
such officer who shall have signed the notation of guarantee shall cease to be
such officer before the Senior Note on which such notation of guarantee is
endorsed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Senior Note nevertheless may be authenticated and
delivered or disposed of as though the Person who signed the notation of
guarantee had not ceased to be such officer of the Guarantor.
SECTION 12.11 Guarantee Unconditional, Etc.
-----------------------------
Upon failure of payment when due of any obligations covered by
the Guarantee for whatever reason, each Guarantor will be obligated to pay the
same immediately. Each Guarantor hereby agrees that its obligations hereunder
shall be continuing, absolute and unconditional, irrespective of: the recovery
of any judgment against the Company or any Guarantor; any extension, renewal,
settlement, compromise, waiver or release in respect of any obligation of the
Company under this Indenture or any Senior Note, by operation of law or
otherwise; any modification or amendment of or supplement to this Indenture or
any Senior Note; any change in the corporate existence, structure or ownership
of the Company or any Guarantor, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting the Company or any Guarantor or any of
their assets or any resulting release or discharge of any obligation of the
Company or any Guarantor contained in this Indenture or any Senior Note; the
existence of any claim, set-off or other rights which any Guarantor may have at
any time against the Company, any Guarantor, the Trustee, any Securityholder or
any other Person, whether in connection herewith or any unrelated transactions,
provided, that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim; any invalidity or unenforceability
relating to or against the Company for any reason of this Indenture or any
Senior Note, or any provision of applicable law or regulation purporting to
prohibit the payment by the Company of the principal, premium, if any, or
interest or any Senior Note or any other Guarantee; or any other act or omission
to act or delay of any kind by the Company or any Guarantor, the Trustee, any
Securityholder or any other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a legal or equitable
discharge of the Guarantors= obligations hereunder. Each Guarantor=s obligations
hereunder shall remain in full force and effect until this Indenture shall have
terminated and the principal of and interest on the Senior Subordinated Notes
and all other Guarantees shall have been paid in full. If at any time any
payment of the principal of or interest on any Senior Subordinated Notes or any
other payment in respect of any Guarantees is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of the
Company or otherwise, each Guarantor=s obligations hereunder with respect to
such payment shall be reinstated as though such payment had been due but not
made at such time, and this Article Twelve, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor
irrevocably waives any and all rights to which it may be entitled, by operation
of law or otherwise, upon making any payment hereunder to be subrogated to the
rights of the payee against the Company with respect to such payment or
otherwise to be reimbursed, indemnified or exonerated by the Company in respect
thereof.
74
SECTION 12.12 Additional Guarantors.
----------------------
Any Person that was not a Guarantor on the date of this Indenture
may become a Guarantor by executing and delivering to the Trustee (a) a
supplemental indenture in form and substance satisfactory to the Trustee, which
subjects such Person to the provisions of this Indenture as a Guarantor and (b)
an Opinion of Counsel to the effect that such supplemental indenture has been
duly authorized and executed by such Person and that such supplemental
indenture, and this Indenture as so supplemented, each constitutes the legal,
valid, binding and enforceable obligation of such Person (subject to such
customary exceptions concerning creditors= rights and equitable principles as
may be acceptable to the Trustee in its discretion). The Guarantee of each
Person described in this Section 12.12 shall apply to all Senior Subordinated
Notes theretofore or thereafter executed and delivered, notwithstanding any
failure of such Senior Subordinated Notes to contain a notation of such
Guarantee thereon.
SECTION 12.13 Waiver of Stay, Extension or Usury Laws.
----------------------------------------
Each Guarantor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive each such Guarantor from
performing its Guarantee 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) each Guarantor
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 TIA Controls.
-------------
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by, or with another provision included in this
Indenture by operation of, Sections 3.10 to 3.18, inclusive of the TIA, such
imposed duties or incorporated provision shall control. If any provision of this
Indenture modifies or excludes any provision of the TIA that can be so modified
or excluded, the latter provision shall be deemed to apply to this Indenture as
so modified or excluded, as the case may be.
SECTION 13.02 Notices.
--------
Except as otherwise expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing (including by telecopy or telex), and shall be deemed to
have been duly given or made when delivered by hand, or five days after being
deposited in the United States mail, postage prepaid, or, in the case of telex
notice, when sent, answer-back received, or in the case of telecopy notice, when
sent, or in the case of a nationally recognized overnight courier service, one
business day after deposit with
75
such nationally recognized overnight courier service, to the address set forth
below or to such other address as may be designated by any party in a written
notice to the other parties hereto:
IF TO THE COMPANY OR GUARANTORS:
TRISM, Inc.
0000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
WITH, IN THE CASE OF ANY NOTICE UNDER ARTICLE SIX, A COPY TO:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
IF TO THE TRUSTEE:
_______________________________
_______________________________
Attention: ___________________
Facsimile: ____________________
WITH A COPY TO:
________________________________
________________________________
Attention: ____________________
Facsimile: _____________________
Any notice or communication shall also be so mailed to any Person
described in TIA Section 3.13(c), to the extent required by the TIA. Failure to
mail notice or communication to a Holder or any defect in it shall not effect
its sufficiently with respect to other Holders.
SECTION 13.03 Communications by Holders with Other Holders.
---------------------------------------------
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Senior Subordinated
76
Notes. The Company, the Guarantors, the Trustee, the Registrar and any other
Person shall have the protection of TIA Section 312(c).
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.
---------------------------------------------------
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company, upon request, shall furnish
to the Trustee, to the extent required by this Indenture or the TIA:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or any
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, and may state that it is so based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company or such Guarantor stating that the
information with respect to such factual matters is in the possession of the
Company or such Guarantor, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate of opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 13.05 Statements Required in a Certificate or Opinion.
------------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ' 314(a)(4)) shall comply with the provisions of TIA '
314(e) and shall include:
77
(a) a statement that the Persons making such certificate or
opinion have read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Persons, they have
made such examination or investigation as is necessary to enable them to express
an informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such
Persons, such condition or covenant has been satisfied.
SECTION 13.06 Acts of Holders.
----------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by a specified percentage of Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such specified
percentage of Holders in person or by agents duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are received by the Trustee and,
where it is hereby expressly required, by the Company and the Guarantors. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the AAct@ of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 7.01 and 7.02) conclusive in favor of the
Trustee, the Company and the Guarantors, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient, including the execution
of such instrument or writing without more.
(c) The ownership, principal amount and serial numbers of Senior
Subordinated Notes held by any Person, and the date of holding the same, shall
be proved by the most recent securityholder list made available to the Trustee
pursuant to Section 2.05.
(d) If the Company shall solicit from the Holders of Senior
Subordinated Notes any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or pursuant to
Board Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Such record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date 30 days prior to the
first solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
outstanding Senior Subordinated Notes have authorized or agreed or consented to
such request, demand, authorization, direction, notice,
78
consent, waiver or other Act, and for that purpose the outstanding Senior
Subordinated Notes shall be computed as of such record date; provided that no
such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become pursuant to the provisions of
this Indenture not later than eleven months after the record date.
(e) Except to the extent otherwise expressly provided in this
Indenture, any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Senior Note shall bind every future
Holder of the same Senior Note and the Holder of every Senior Note issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Senior Note.
(f) Without limiting the foregoing, a Holder entitled hereunder
to give or take any action with regard to any particular Senior Note may do so
with regard to all or any part of the principal amount of such Senior Note or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 13.07 Rules by Trustee and Agents.
----------------------------
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions; provided that no such rule shall
conflict with the terms of this Indenture or the TIA.
SECTION 13.08 Legal Holidays.
---------------
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in New
York, New York, are not required to be open. If a payment date is a Legal
Holiday at such place, payment may be made at such place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 13.09 Governing Law.
--------------
THIS INDENTURE AND THE SENIOR SUBORDINATED NOTES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
79
SECTION 13.10 Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.
-------------------------------------------------------------
By the execution and delivery of this Indenture or any amendment
or supplement hereto, each of the Company and the Guarantors (i) acknowledges
that it has, by separate written instrument, designated and appointed CT
Corporation System (the AProcess Agent@) currently located at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, as its authorized agent upon which process may be served
in any suit, action or proceeding with respect to, arising out of, or relating
to, this Indenture, the Guarantees, or the Senior Subordinated Notes or brought
under U.S. federal or state securities laws, which suit, action or proceeding
may be instituted in any U.S. federal or state court located in The City of New
York, New York, and acknowledges that the Process Agent has accepted such
designation, (ii) irrevocably submits to the jurisdiction of any such court in
any such suit, action or proceeding and irrevocably waives, to the fullest
extent that it may effectively and lawfully do so, any obligation to the laying
of venue of any such suit, action or proceeding and the defense of an
inconvenient forum to the maintenance of any such suit action or proceeding in
such court, and (iii) agrees that service of process upon the Process Agent
shall be deemed in every respect effective service of process upon the Company
in any such suit, action or proceeding. The Company and the Guarantors further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments as may be necessary to continue such
designation and appointment of the Process Agent in full force and effect so
long as this Indenture shall be in full force and effect; provided that the
Company may and shall (to the extent the Process Agent ceases to be able to be
served on the basis contemplated herein), by written notice to the Trustee,
designate such additional or alternative agents for service of process under
this Section 13.10 that (i) maintains an office located in the Borough of
Manhattan, The City of New York in the State of New York, (ii) are either (a)
counsel for the Company or (b) a corporate service company which acts as agent
for service of process for other Persons in the ordinary course of its business
and (iii) agrees to act as agent for service of process in accordance with this
Section 13.10. Such notice shall identify the name of such agent for process and
the address of such agent for process in the Borough of Manhattan, The City of
New York, State of New York. Upon the request of any Holder of a Senior Note,
the Trustee shall deliver such information to such Holder. Notwithstanding the
foregoing, there shall, at all times, be at least one agent for service of
process for the Company and each Guarantor appointed and acting in accordance
with this Section 13.10.
To the extent that the Company or any Guarantor has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its Property, each of the Company and the Guarantors hereby irrevocably
waives such immunity in respect of its Obligations under this Indenture, the
Guarantees and the Senior Subordinated Notes, to the extent permitted by law.
SECTION 13.11 No Adverse Interpretation of Other Agreements.
----------------------------------------------
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
80
SECTION 13.12 No Recourse Against Others.
---------------------------
A director, officer, employee, stockholder or incorporator, as
such, of the Company, or any Guarantor shall not have any liability for any
obligations of the Company or any Guarantor under the Senior Subordinated Notes
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creations. Each Securityholder by accepting a Senior Note
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Senior Subordinated Notes.
SECTION 13.13 Successors.
-----------
All agreements of the Company and each Guarantor in this
Indenture and the Senior Subordinated Notes shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 13.14 Counterpart Originals.
----------------------
All parties may sign any number of copies of this Indenture in
separate counterparts. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
SECTION 13.15 Severability.
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In case any one or more of the provisions in this Indenture or in
the Senior Subordinated Notes shall be held invalid, illegal or unenforceable,
in any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 13.16 Table of Contents, Headings, Etc.
---------------------------------
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Remainder of Page Intentionally Left Blank]
81
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the date first written
above.
Dated: , 1999
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TRISM, INC.
By:
-----------------------------------------
Name:
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Title:
-------------------------------------
Attest:
--------------------
, as Trustee
--------------------------------
By:
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Attest:
--------------------
TRISM SECURED TRANSPORTATION, INC.
By:
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Name:
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Title:
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Attest:
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TRISM HEAVY HAUL, INC.
By:
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Name:
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Title:
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Attest:
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TRISM MAINTENANCE SERVICES, INC.
By:
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Name:
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Title:
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Attest:
--------------------
82
MCGILL SPECIAL SERVICES, INC.
By:
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Name:
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Title:
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Attest:
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TRI-STATE MOTOR TRANSIT CO.
By:
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Name:
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Title:
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Attest:
--------------------
TRISM SPECIALIZED CARRIERS, INC.
By:
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Name:
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Title:
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Attest:
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AERO BODY AND TRUCK EQUIPMENT, INC.
By: _________________________________________
Name: ______________________________________
Title: _____________________________________
Attest: ____________________
TRI-STATE TRANSPORTATION SERVICES, INC.
By:
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Attest:
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TRISM SPECIAL SERVICES, INC.
By:
-----------------------------------------
Name:
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Title:
-------------------------------------
Attest:
--------------------
83
DIABLO SYSTEMS, INC.
By:
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Name:
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Title:
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Attest:
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TRISM EASTERN, INC.
By:
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Name:
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Title:
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Attest:
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TRISM TRANSPORT, INC.
By:
-----------------------------------------
Name:
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Title:
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Attest:
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TRISM TRANSPORT SERVICES, INC.
By:
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Attest:
--------------------
TRANSPORTATION RECOVERY SYSTEMS, INC.
By:
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Name:
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Title:
-------------------------------------
Attest:
--------------------
TRISM LOGISTICS, INC.
By:
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Name:
--------------------------------------
Title:
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Attest:
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84
TRISM EQUIPMENT, INC.
By:
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Attest:
--------------------
85
Exhibit A
[FORM OF SENIOR NOTE]
TRISM, INC.
12% Senior Subordinated Note Due 2004
No. ____________________ $____________________
TRISM, INC., a Delaware corporation ("Company", which term
includes any successor corporation), for value received promises to pay to
___________________ or registered assigns, the principal sum of
_________________ Dollars, on _________, 2004 and to pay interest thereon in
cash semiannually in arrears at the rate of 12% per annum on March 15 and
September 15 of each year until the principal hereof is paid or made available
for payment. Interest on this Senior Note will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from September
15, 1999. Payment of principal, premium, if any, and interest shall be made in
the manner and subject to the terms set forth in provisions appearing on the
reverse hereof, which provisions, in their entirety, shall for all purposes have
the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Senior Note to
be signed manually or by facsimile by its duly authorized officers.
Dated: ______________________
Attest: TRISM, INC.
By:
-----------------------------------------
Name: Name:
----------------------- --------------------------------------
Title: Title:
---------------------- -------------------------------------
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Senior Subordinated Notes described in the within-mentioned
Indenture.
----------------------------------------
By:
------------------------------------
Authorized Signatory
TRISM, INC.
12% Senior Subordinated Note Due 2004
1. Interest. TRISM, INC., a Delaware corporation (Athe Company@),
promises to pay interest on the principal amount of this Senior Note at the rate
per annum shown above. The interest rate is subject to adjustment in certain
circumstances as described herein. The Company will pay interest in cash,
semi-annually on March 15 and September 15 of each year (each, an "Interest
Payment Date"), commencing March 15, 2000, to Holders of record on the
immediately preceding ________ and ________ (each, a "Record Date"). Interest on
the Senior Subordinated Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from September 15,
1999. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and interest on
overdue installments of interest and premium, to the extent lawful, at a rate
equal to the rate of interest otherwise payable on the Senior Subordinated Notes
(after giving effect to any increase thereof as described in Section 4.04 or
4.20 of the Indenture) plus 2.00% per annum.
2. Method of Payment. The Company shall pay interest on the Senior
Subordinated Notes to the Persons who are the registered Holders at the close of
business on the Record Date immediately preceding the Interest Payment Date even
if the Senior Subordinated Notes are canceled on registration of transfer or
registration of exchange after such Record Date. The Company shall pay principal
and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts (AU.S. Legal Tender@). However,
the Company may pay principal and interest by wire transfer of Federal funds, or
interest by its check payable in such U.S. Legal Tender. The Company may deliver
any such interest payment to the Paying Agent or to a Holder at the Holder=s
registered address. This Senior Note is an obligation of the Company and shall
be governed by, and entitled to the benefits of the Indenture (as such term is
defined below) and shall be subject to the terms of the Indenture (including the
guarantee provisions) and shall rank pari passu with and be subject to the same
terms (including the rate of interest from time to time payable thereon) as the
other Senior Subordinated Notes issued thereunder (except, as the case may be,
with respect to the issuance date and aggregate principal amount).
3. Subordination. The indebtedness evidenced by the Senior Subordinated
Notes is, to the extent and in the manner provided in the Indenture, subordinate
and subject in right of payment to the prior payment in full of all Senior
Indebtedness as defined in the Indenture, and this Senior Subordinated Note is
issued subject to such provisions. Each Holder of this Senior Subordinated Note,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee his attorney-in-fact for such purpose;
provided, however, that the indebtedness evidenced by this Senior Subordinated
Note shall cease to be so subordinate and subject in right of payment upon any
defeasance of this Senior Subordinated Note referred to in Section 9.02 or 9.03
of the Indenture.
4. Paying Agent and Registrar. Initially, ____________________ (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. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Paying Agent, Registrar or co-Registrar.
5. Indenture and Guarantees. The Company issued the Senior Subordinated
Notes under an Indenture, dated as of __________ __, 1999 (as amended or
supplemented from time to time, the "Indenture"), among the Company, the
Guarantors and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Senior Subordinated
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) (the ATIA@), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Senior Subordinated Notes
are subject to all such terms, and Holders of Senior Subordinated Notes are
referred to the Indenture and the TIA for a statement of such terms. The Senior
Subordinated Notes are senior unsecured obligations of the Company limited in
aggregate principal amount to $30,000,000. Payment on each Senior Note is
guaranteed on a senior unsecured basis, jointly and severally, by the Guarantors
pursuant to Article Twelve of the Indenture.
6. Optional Redemption. The Senior Subordinated Notes may be redeemed
in whole, at any time, or from time to time in part, at the option of the
Company, at a Redemption Price equal to 101% of the principal amount thereof,
plus, in each case, accrued interest to the Redemption Date.
7. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Senior Subordinated Notes to be redeemed at such Holder=s registered address.
Senior Subordinated Notes in denominations larger than $1,000 may be redeemed in
part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Senior Subordinated Notes called for
redemption shall have been deposited with the Paying Agent for redemption on
such Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Senior Subordinated Notes called for redemption will cease
to bear interest and the only right of the Holders of such Senior Subordinated
Notes will be to receive payment of the Redemption Price.
8. Mandatory Repurchase. Subject to the provisions of Section 4.18 of
the Indenture, the Company is required to apply the Net Cash Proceeds from
certain Asset Sales to the mandatory purchase of the Senior Note, at a purchase
price equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase.
9. Denominations; Transfer; Exchange. The Senior Subordinated Notes are
in registered form, without coupons. A Holder shall register the transfer of or
exchange Senior Subordinated Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Senior Subordinated Notes or portions thereof selected for
redemption.
10. Persons Deemed Owners. The registered Holder of a Senior Note shall
be treated as the owner of it for all purposes.
11. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agents will pay the
money back to the Company at its request. After that, all liability of the
Trustee and such Paying Agents with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity. If the Company at any
time deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and premium, if any, and interest on the
Senior Subordinated Notes to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be discharged
from certain provisions of the Indenture and the Senior Subordinated Notes
(including the financial covenants, but excluding its obligation to pay the
principal of and premium, if any, and interest on the Senior Subordinated
Notes).
13. Amendment; Supplement; Waiver. Subject to certain exceptions, the
Indenture or the Senior Subordinated Notes may be amended or supplemented with
the written consent of the Holders of at least a majority in aggregate principal
amount of the Senior Subordinated Notes then outstanding. Without notice to or
consent of any Holder, the parties thereto may amend or supplement the Indenture
or the Senior Subordinated Notes to, among other things, cure any ambiguity,
defect or inconsistency, provide for uncertificated Senior Subordinated Notes in
addition to or in place of certificated Senior Subordinated Notes, provide for
additional Guarantors pursuant to Section 4.19 of the Indenture or otherwise,
provide for successors pursuant to Article Five or Section 12.06 of the
Indenture, or comply with any requirements of the Commission in connection with
the qualification of the Indenture under the TIA, provide for the appointment of
a successor Trustee pursuant to Section 7.08 or make any other change that does
not adversely affect the legal rights of any Holder of a Senior Note.
14. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Company and its Subsidiaries to, among other things, pay
dividends to stockholders of the Company or make certain other restricted
payments, incur additional Indebtedness or Liens, enter into transactions with
Affiliates, make payments in respect of its Capital Stock and merge or
consolidate with any other Person and sell, lease, transfer or otherwise dispose
of substantially all of its properties or assets. The limitations are subject to
a number of important qualifications and exceptions. The Company must annually
report to the Trustee regarding compliance with such limitations.
15. Successors. When a successor assumes all the obligations of its
predecessor under the Senior Subordinated Notes and the Indenture, the
predecessor will not be released from those obligations.
16. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Senior Subordinated Notes then outstanding may declare all the Senior
Subordinated Notes to be due and payable immediately in the manner and with the
effect provided in the Indenture. Holders of Senior Subordinated Notes may not
enforce the Indenture or the Senior Subordinated Notes except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Senior Subordinated Notes. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the Senior
Subordinated Notes then outstanding may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of Senior Subordinated
Notes notice of any continuing Default or Event of Default (except a Default or
an Event of Default in payment of principal or interest on any Secured Note,
including the failure to make a Net Proceeds Purchase) if it determines that
withholding notice is in their interest.
17. Trustee Dealings with the Company. The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Senior Subordinated Notes and may otherwise deal with the Company, the
Guarantors, or their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others. No stockholder, director, officer,
employee or incorporator, as such, of the Company or any Guarantor shall have
any liability for any obligations of the Company or any Guarantor under the
Senior Subordinated Notes or the Indenture or for any claim based on, in respect
of or by reason of, such obligations or their creation. Each Holder of a Senior
Note by accepting a Senior Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Senior
Subordinated Notes.
19. Authentication. This Senior Note shall not be valid until the
Trustee or authenticating agent manually signs the certificate of authentication
on this Senior Note.
20. Abbreviations and Defined Terms. Customary abbreviations may be
used in the name of a Holder of a Senior Note or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (Uniform Gifts to Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Senior Subordinated Notes as a convenience to
the Holders of the Senior Subordinated Notes. No representation is made as to
the accuracy of such numbers as printed on the Senior Subordinated Notes and
reliance may be placed only on the other identification numbers printed hereon.
The Company will furnish to any Holder of a Senior Note upon written
request and without charge a copy of the Indenture. Requests may be made to:
TRISM, Inc., [__________________________________________].
[Form of Notation on Note Relating to Guarantee]
GUARANTEE
Subject to the limitations set forth in the Indenture, the Guarantors
(as defined in the Indenture referred to in this Senior Note and each
hereinafter referred to as a AGuarantor,@ which term includes any successor or
additional Guarantor under the Indenture) have jointly and severally,
irrevocably and unconditionally guaranteed (a) the due and punctual payment of
the principal of and premium, if any, and interest on the Senior Subordinated
Notes, whether at maturity, by acceleration, call for redemption, upon an Asset
Sale, purchase or otherwise, (b) the due and punctual payment of interest on the
overdue principal of and interest on the Senior Subordinated Notes to the extent
lawful, (c) the due and punctual performance of all other Obligations of the
Company and the Guarantors to the Holders under the Indenture and the Senior
Subordinated Notes and (d) in case of any extension of time of payment or
renewal of any Senior Subordinated Notes or any of such other Obligations, the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at maturity, by acceleration, call
for redemption, upon an Asset Sale, purchase or otherwise.
Capitalized terms used herein shall have the same meanings assigned to
them in the Indenture unless otherwise indicated.
Payment on each Senior Note is guaranteed, jointly and severally, by
the Guarantors pursuant to Article Twelve of the Indenture and reference is made
to such Indenture for the precise terms of the Guarantees.
The Obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor, and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
Obligations of such other Guarantor under its Guarantee or pursuant to its
contribution Obligations under the Indenture, result in the Obligations of such
Guarantor under its Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under any applicable Bankruptcy Law or not otherwise being
void, voidable or unenforceable under any applicable Bankruptcy Law. Each
Guarantor that makes a payment or distribution under a Guarantee shall be
entitled to a contribution from each other Guarantor in a pro rata amount based
on the Adjusted Net Assets of each Guarantor.
Certain of the Guarantors may be released from their Guarantees upon
the terms and subject to the conditions provided in the Indenture.
The Guarantee shall be binding upon each Guarantor listed below and its
successors and assigns and shall inure to the benefit of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions in the Indenture.
TRISM SECURED TRANSPORTATION, INC.
TRISM HEAVY HAUL, INC.
TRISM MAINTENANCE SERVICES, INC.
MCGILL SPECIAL SERVICES, INC.
TRI-STATE MOTOR TRANSIT CO.
TRISM SPECIALIZED CARRIERS, INC.
AERO BODY AND TRUCK EQUIPMENT, INC.
TRI-STATE TRANSPORTATION SERVICES, INC.
TRISM SPECIAL SERVICES, INC.
DIABLO SYSTEMS, INC.
TRISM EASTERN, INC.
TRISM TRANSPORT, INC.
TRISM TRANSPORT SERVICES, INC.
TRANSPORTATION RECOVERY SYSTEMS, INC.
TRISM LOGISTICS, INC.
TRISM EQUIPMENT, INC.
By:
-----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Attest:
--------------------
[FORM OF ASSIGNMENT]
To assign this Senior Note, fill in the form below: I or we assign and transfer
this Senior Note to
------------------------------------------------------------------------------
------------------------------------------------------------------------------
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(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
------------------------------------------------------------------------------
and irrevocably appoint _______________ agent to transfer this Senior Note on
the books of the Company. The agent may substitute another to act for him.
Dated:
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Signed:
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(Sign exactly as your name appears on the front of this Senior Note)
Signature Guarantee: ______________________________
Signature must be guaranteed by an eligible guarantor institution
within the meaning of Securities and Exchange Commission Rule 17Ad-15
(including banks, stock brokers, savings and loan associations,
national securities exchanges, registered securities associations,
clearing agencies and credit unions) with membership or participation
in an approved signature guarantee medallion program if this Senior
Note is delivered other than to and in the name of the registered
holder.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the
Company pursuant to Section 4.18 of the Indenture, check the following box:
[__________]
If you want to elect to have only part of this Senior Note
purchased by the Company pursuant to Section 4.18 of the Indenture, state the
amount: $___________________.
Dated:
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Signed:
------------------------------
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(Sign exactly as your name appears on the front of this Senior Note)
Signature Guarantee:
------------------------------
Signature must be guaranteed by an eligible guarantor institution
within the meaning of Securities and Exchange Commission Rule 17Ad-15
(including banks, stock brokers, savings and loan associations,
national securities exchanges, registered securities associations,
clearing agencies and credit unions) with membership or participation
in an approved signature guarantee medallion program if this Senior
Note is delivered other than to and in the name of the registered
holder.
