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Exhibit 4.4
XXXXX Material Handling Company
as obligor
$150,000,000
10 3/4% Senior Notes due 2006
Series C and Series D
INDENTURE
Dated as of July 17, 1998
UNITED STATES TRUST COMPANY OF NEW YORK,
Trustee
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INDENTURE, dated as of July 17, 1998, between XXXXX Material
Handling Company, a Delaware corporation (the "Company"), and United States
Trust Company of New York, a New York corporation, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit
of each other and for the equal and ratable benefit of the Holders of the
Company's 103/4% Series C Senior Notes due 2006 and the Company's 10 3/4% Series
D Senior Notes due 2006.
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. Definitions.
"Accounts" shall mean, as to any Person, all of such Person's
now owned and hereafter acquired rights to payment (including intercompany
obligations) for the prior, concurrent or future sale, lease or other
disposition of Inventory or rendition of services, whether or not evidenced by
an instrument or chattel paper and whether or not earned by performance.
"Acquired Debt" means Indebtedness of a Person existing at the
time such Person is merged with or into the Company or a Restricted Subsidiary
or becomes a Restricted Subsidiary, other than Indebtedness incurred in
connection with, or in contemplation of, such Person merging with or into the
Company or a Restricted Subsidiary or becoming a Restricted Subsidiary;
provided, that Indebtedness of such Person that is redeemed, defeased, retired
or otherwise repaid at the time, or immediately upon consummation, of the
transaction by which such Person is merged with or into the Company or a
Restricted Subsidiary or becomes a Restricted Subsidiary shall not be Acquired
Debt.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of
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voting securities, by agreement or otherwise. Notwithstanding the foregoing,
neither Initial Purchaser nor any of their respective Affiliates will be deemed
to be Affiliates of the Company.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Sale" means any direct or indirect (a) transfer (as
hereinafter defined), other than in the ordinary course of business, of any
assets of the Company or any Restricted Subsidiary or (b) issuance of any
Capital Stock of any Restricted Subsidiary, in each case to any Person (other
than the Company or a Restricted Subsidiary and other than directors' qualifying
shares). For purposes of this definition, (i) any series of transfers that are
part of a common plan shall be deemed a single Asset Sale and (ii) the term
"Asset Sale" shall not include any disposition of all or substantially all of
the assets of the Company that is governed under and complies with Article V of
this Indenture.
"Bankruptcy Law" means title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"Board of Directors" means the board of directors or any duly
constituted committee of any corporation or of a corporate general partner of a
partnership and any similar body empowered to direct the affairs of any other
entity.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP, and the amount of such
obligations at any date shall be the capitalized amount of such obligations at
such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, and (ii) with respect to
any other Person, any and all partnership or other equity interests of such
Person.
"Cash Equivalent" means (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumen-
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tality thereof (provided that the full faith and credit of the United States of
America is pledged in support thereof), (ii) time deposits and certificates of
deposit and commercial paper issued by the parent corporation of any domestic
commercial bank of recognized standing having capital and surplus in excess of
$250,000,000 and commercial paper issued by others rated at least A-2 or the
equivalent thereof by Standard & Poor's Corporation or at least P-2 or the
equivalent thereof by Xxxxx'x Investors Service, Inc. and in each case maturing
within one year after the date of acquisition and (iii) investments in money
market funds substantially all of whose assets comprise securities of the types
described in clauses (i) and (ii) above.
"Change of Control" means (i) the transfer (in one transaction
or a series of transactions) of all or substantially all of the Company's assets
to any Person or group (as such term is used in Section 13(d)(3) of the Exchange
Act) other than to one or more Existing Holders, (ii) the liquidation or
dissolution of the Company or the adoption of a plan by the stockholders of the
Company relating to the dissolution or liquidation of the Company, (iii) the
acquisition by any Person or group (as such term is used in Section 13(d)(3) of
the Exchange Act), except for one or more Existing Holders, of beneficial
ownership, directly or indirectly, of more than 50% of the voting power of the
total outstanding Voting Stock of Holdings, (iv) after the consummation of an
initial public offering of any class of common stock of the Company or Holdings,
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company or Holdings
(together with any new directors who have been appointed by CVC, Citicorp N.A.,
or any Affiliate of CVC or whose nomination for election by the stockholders of
the Company was approved by a vote of at least 66 2/3% of the directors then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors of the Company or
Holdings, as the case may be, then still in office or (v) the failure by
Holdings to own more than 50% of the voting power of the total outstanding
Voting Stock of the Company.
"Xxxxx Europe" means Xxxxx Material Handling GmbH, a Wholly
Owned Subsidiary.
"Closing Date" means the date upon which the Series C Notes
are first issued.
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"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body performing
such duties at such time.
"Company" means the party named as such above, until a
successor replaces such Person in accordance with the terms of this Indenture,
and thereafter means such successor.
"Company Order" means a written request or order signed in the
name of the Company by its Chairman of the Board, President or Vice President,
and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary and delivered to the Trustee.
"Consolidated EBITDA" means, with respect to any Person (the
referent Person) for any period, consolidated income (loss) from operations of
such Person and its subsidiaries for such period, determined in accordance with
GAAP, plus (to the extent such amounts are deducted in calculating such income
(loss) from operations of such Person for such period, and without duplication)
amortization, depreciation and other non-cash charges (including, without
limitation, amortization of goodwill, deferred financing fees and other
intangibles but excluding non-cash charges incurred after the date of this
Indenture that require an accrual of or a reserve for cash charges for any
future period); provided, that (i) the income from operations of any Person
(including, without limitation, any Unrestricted Subsidiary) that is not a
Wholly Owned Subsidiary or that is accounted for by the equity method of
accounting will be included only to the extent of the amount of dividends or
distributions paid during such period to the referent Person or a Wholly Owned
Subsidiary of the referent Person, and (ii) the income from operations of any
Restricted Subsidiary will not be included to the extent that declarations of
dividends or similar distributions by that Restricted Subsidiary are not at the
time permitted, directly or indirectly, by operation of the terms of its
organization documents or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its owners.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the consolidated interest expense of such Person and its
subsidiaries for such period, whether paid or accrued (including amortization of
original issue
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discount, noncash interest payment, and the interest component of Capital Lease
Obligations), to the extent such expense was deducted in computing Consolidated
Net Income of such Person for such period.
"Consolidated Net Income" means, with respect to any Person
(the referent Person) for any period, the aggregate of the Net Income of such
Person and its subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP; provided, that (i) the Net Income of any Person
(including, without limitation, any Unrestricted Subsidiary) that is not a
Wholly Owned Subsidiary or that is accounted for by the equity method of
accounting will be included in calculating the referent Person's Consolidated
Net Income only to the extent of the amount of dividends or distributions paid
during such period to the referent Person or a Wholly Owned Subsidiary of the
referent Person, (ii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition will
be excluded, and (iii) the Net Income of any Subsidiary will be excluded to the
extent that declarations of dividends or similar distributions by that
Subsidiary of such Net Income are not at the time permitted, directly or
indirectly, by operation of the terms of its organization documents or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary or its owners.
"Consolidated Net Worth" means, with respect to any Person,
the total stockholders' equity of such Person determined on a consolidated basis
in accordance with GAAP, adjusted to exclude (to the extent included in
calculating such equity), (i) the amount of any such stockholders' equity
attributable to Disqualified Capital Stock of such Person and its consolidated
subsidiaries, and (ii) all upward revaluations and other write-ups in the book
value of any asset of such person or a consolidated subsidiary of such person
subsequent to the Closing Date, and (iii) all Investments in persons that are
not consolidated Restricted Subsidiaries.
"Corporate Trust Office" shall be at the address of the
Trustee specified in Section 11.2 or such other address as the Trustee may
specify by notice to the Company.
"Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
"CVC" means Citicorp Venture Capital Ltd.
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"Default" means any event that is, or after notice or the
passage of time or both would be, an Event of Default.
"Definitive Notes" means Notes that are in the form of the
Notes attached hereto as Exhibit A, that do not include the information called
for by footnotes 1 and 2 thereof.
"Depository" means the Person specified in Section 2.3 hereof
as the Depository with respect to the Notes issuable in global form, until a
successor shall have been appointed and become such pursuant to the applicable
provision of this Indenture, and, thereafter, "Depository" shall mean or include
such successor.
"Disqualified Stock" means that portion of any Equity
Interests that (i) either by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable) is or upon the
happening of an event would be required to be redeemed or repurchased prior to
the final stated maturity of the Notes or is redeemable at the option of the
holder thereof at any time prior to such final stated maturity or (ii) is
convertible into or exchangeable at the option of the issuer thereof or any
other Person for debt securities.
"DTC" means The Depository Trust Company.
"Eligible Inventory" means all Inventory of the Company and
the Restricted Subsidiaries consisting of (i) finished goods held for resale in
the ordinary course of business of any such Person, (ii) work in process
relating to goods to be held for resale in the ordinary course of business of
any such Person, (iii) parts held for resale or to be incorporated into any such
finished goods, and (iv) raw materials for such finished goods.
"Eligible Receivables" means Accounts of the Company and the
Restricted Subsidiaries arising from the actual and bona fide sale and delivery
of goods or rendition of services by any such Person in the ordinary course of
its business that (i) are not unpaid more than ninety (90) days from the
original due date thereof or more than one hundred and eighty (180) days after
the date of the original invoice therefor, (ii) do not arise from sales on
consignment, guaranteed sale, sale and return, sale on approval, or other terms
under which payment by the account debtor may be conditional or contingent;
provided, that no Account where the debtor is a dealer of Inventory shall be
deemed ineligible solely because the Company or a Restricted Subsidiary has a
buy-back arrangement with such account
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debtor effective upon the termination of such account debtor as a dealer, but
upon such termination such dealer's Accounts shall become ineligible, (iii) the
account debtor with respect to such Accounts (x) has not asserted a
counterclaim, defense or dispute and (y) does not have, and does not engage in
transactions that may give rise to, any right of setoff against such Accounts
unless in the case of this clause (y) such account debtor has entered into a
written agreement, pursuant to which such account debtor agrees not to assert
any setoff against Accounts owed to the Company or any of its Subsidiaries, and
(iv) such account debtor is not the Company or any Subsidiary or Affiliate of
the Company.
"Equity Interests" means Capital Stock or warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer that may be made by the
Company pursuant to the Registration Rights Agreement to exchange Series D Notes
for Series C Notes and Original Notes.
"Existing Holders" shall mean (i) CVC, (ii) Citicorp N.A. or
any other Affiliate of CVC, (iii) any officer, employee or director of CVC, (iv)
the Management Investors and (v) in the case of any natural Person specified in
the foregoing clauses, any spouse or lineal descendant (including by adoption)
of such Person; provided, that in no event shall the Persons specified in
clauses (iii) through (v) be deemed "Existing Holders" with respect to more than
30% of the voting power of the total outstanding Voting Stock of the Company or
Holdings.
"Floor Plan Guaranty" means (a) the Guarantee by the Company
or a Restricted Subsidiary of Indebtedness incurred by a franchise dealer or
other purchaser of Inventory manufactured or sold by the Company or a Restricted
Subsidiary, the proceeds of which Indebtedness is used solely to pay the
purchase price of such Inventory and any related fees and expenses (including
finance fees); provided, that (i) to the extent commercially practicable, the
Indebtedness so guaranteed is secured by a perfected first priority lien on such
Inventory in favor of the holder of such Indebtedness and (ii) if the Company or
such Restricted Subsidiary is required to make payment with respect to such
Guarantee, the Company or such Restricted Subsidiary will have the right to
receive either (A) title to such
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Inventory, (B) a valid assignment of a first priority perfected lien in such
Inventory or (C) the net proceeds of any resale of such Inventory; and (b)
obligations to repurchase equipment sold by the Company or its Restricted
Subsidiaries from a dealer upon termination of such dealer or from customers who
lease such equipment to third parties when the equipment comes off lease.
"Foreign Subsidiary" means a Restricted Subsidiary not
organized under the laws of the United States or any political subdivision
thereof and the operations of which are located entirely outside the United
States.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession, and in the rules and regulations of the Commission, that
are in effect on the date of this Indenture.
"German Subsidiary Facilities" means one or more revolving
credit facilities of Xxxxx Europe, as the same may be amended, modified,
renewed, refunded, replaced or refinanced from time to time including (i) any
related notes, letters of credit, guarantees, collateral documents, instruments
and agreements executed in connection therewith, and in each case amended,
modified, renewed, refunded, replaced or refinanced from time to time, and (ii)
any notes, guarantees, collateral documents, instruments and agreements executed
in connection with any such amendment, modification, renewal, refunding,
replacement or refinancing.
"Global Note" means a Note that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote 2
in the form of the Note attached hereto as Exhibit A.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Guarantors" means all direct or indirect Restricted
Subsidiaries that are not Foreign Subsidiaries.
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"Holder" means a Person in whose name a Note is registered.
"Holdings" means CMH Holdings Corporation, the holder of all
of the outstanding shares of Capital Stock of the Company.
"Indebtedness" of any Person means (without duplication) (1)
all liabilities and obligations, contingent or otherwise, of such Person (a) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (b) evidenced
by bonds, debentures, notes or other similar instruments, (c) representing the
deferred purchase price of property or services (other than (i) non interest
bearing obligations and (ii) liabilities incurred in the ordinary course of
business which are not more than 90 days past due), (d) created or arising under
any conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) as lessee under capitalized leases, (f) under
bankers' acceptance and letter of credit facilities, (g) to purchase, redeem,
retire, defease or otherwise acquire for value any Disqualified Stock, or (h) in
respect of Hedging Obligations, (2) all liabilities and obligations of others of
the type described in clause (1), above, that are Guaranteed by such Person, and
(3) all liabilities and obligations of others of the type described in clause
(1), above, that are secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights) owned by
such Person; provided, that the amount of such Indebtedness shall (to the extent
such Person has not assumed or become liable for the payment of such
Indebtedness in full) be the lesser of (x) the fair market value of such
property at the time of determination and (y) the amount of such Indebtedness.
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, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Initial Purchasers" means Xxxxxxxxx & Company, Inc. and Bear,
Xxxxxxx & Co. Inc.
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"Interest Coverage Ratio" means, for any period, the ratio of
(i) Consolidated EBITDA of the Company for such period, to (ii) Consolidated
Interest Expense of the Company for such period. In calculating the Interest
Coverage Ratio for any period, pro forma effect shall be given to: (a) the
incurrence, assumption, guarantee, repayment, repurchase, redemption or
retirement by the Company or any of its Subsidiaries of any Indebtedness (other
than under the Revolving Credit Facility) subsequent to the commencement of the
period for which the Interest Coverage Ratio is being calculated but on or prior
to the date on which the event for which the calculation is being made, as if
the same had occurred at the beginning of the applicable period; and (b) the
occurrence of any Asset Sale during such period by reducing Consolidated EBITDA
for such period by an amount equal to the Consolidated EBITDA (if positive)
directly attributable to the assets sold and by reducing Consolidated Interest
Expense by an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness assumed by third parties or repaid with the
proceeds of such Asset Sale, in each case as if the same had occurred at the
beginning of the applicable period. For purposes of making the computation
referred to above, acquisitions that have been made by the Company or any of its
Restricted Subsidiaries, including mergers and consolidations, subsequent to the
commencement of such period but on or prior to the date on which the event for
which the calculation is being made shall be given effect on a pro forma basis,
assuming that all such acquisitions, mergers and consolidations had occurred on
the first day of such period. Without limiting the foregoing, the financial
information of the Company with respect to any portion of such four fiscal
quarters that falls before the Closing Date shall be adjusted to give pro forma
effect to the issuance of the Notes and the application of the proceeds
therefrom as if they had occurred at the beginning of such four fiscal quarters.
"Inventory" shall mean, as to any Person, all now owned and
hereafter acquired goods including, without limitation, parts and goods in the
possession of such Person or of a bailee or other Person for sale, storage,
transit, processing, use or otherwise, and supplies, finished goods, parts and
components, that are: (a) held for sale or lease, (b) furnished or to be
furnished under contracts of services, or (c) raw materials, work-in-process or
materials used or consumed in its business.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of loans, Guarantees, advances or capital contributions (excluding (i)
commission, travel and similar advances to officers and employees of such Person
made in the ordinary
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course of business and (ii) bona fide accounts receivable arising from the sale
of goods or services in the ordinary course of business consistent with past
practice), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, and any other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed.
"Lien" means any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
"Liquidated Damages" has the meaning set out in the
Registration Rights Agreement.
"Management Investors" means the individuals listed as of
[November 27, 1996] on Schedule I of the Amended and Restated Securities
Purchase and Holders Agreement, dated January 31, 1997, by and among Holdings,
CVC, Xxxxxx Xxxxxx and the Management Investors.
"Material Subsidiary" means any Subsidiary (a) that is a
"Significant Subsidiary" of the Company as defined in Rule 1-02 of Regulation
S-X promulgated by the Commission or (b) is otherwise material to the business
of the Company.
"Net Income" means, with respect to any Person for any period,
the net income (loss) of such Person for such period, determined in accordance
with GAAP, excluding any gain or loss, together with any related provision for
taxes on such gain or loss, realized in connection with any Asset Sales and
dispositions pursuant to sale and leaseback transactions, and excluding any
extraordinary gain or loss, together with any related provision for taxes on
such gain or loss.
"Net Proceeds" means the aggregate proceeds received in the
form of cash or Cash Equivalents in respect of any Asset Sale (including
payments in
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respect of deferred payment obligations when received), net of (a) the
reasonable and customary direct out-of-pocket costs relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking fees
and sales commissions), other than any such costs payable to an Affiliate of the
Company, (b) taxes actually payable directly as a result of such Asset Sale
(after taking into account any available tax credits or deductions and any tax
sharing arrangements), (c) amounts required to be applied to the permanent
repayment of Indebtedness in connection with such Asset Sale, and (d)
appropriate amounts provided as a reserve by the Company or any Restricted
Subsidiary, in accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by the Company or such Restricted Subsidiary, as
the case may be, after such Asset Sale, including, without limitation, pension
and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
arising from such Asset Sale.
"Notes" means, collectively, the Series C Notes and the Series
D Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other obligations and liabilities
of the Company or any of the Guarantors under this Indenture, the Notes or the
Guarantees of the Notes.
"Officers" means the Chairman of the Board, the President, the
Chief Financial Officer, Chief Operating Officer, the Treasurer, any Assistant
Treasurer, Controller, Secretary, any Assistant Secretary or any Vice-President
of the Company.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the
President, Chief Financial Officer, Treasurer, Controller or a Vice President of
the Company.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.
"Original Indenture" means the Indenture dated November 27,
1996 between the Company and the Trustee providing for the issuance of the
Original
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Notes in the aggregate principal amount of $130,000,000, as such may be amended
or supplemented from time to time.
"Original Notes" means the Company's 10 3/4% Senior Notes due
2006 issued pursuant to the Original Indenture, as such may be amended or
supplemented from time to time.
"Permitted Investments" means (a) Investments in the Company,
any Guarantor or any Wholly Owned Subsidiary (including without limitation,
Guarantees of Indebtedness of any such Person), (b) Investments in Cash
Equivalents, (c) Investments in a Person, if as a result of such Investment (i)
such Person becomes a Wholly Owned Subsidiary or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Wholly Owned
Subsidiary, (d) Floor Plan Guarantees permitted to be incurred in compliance
with Section 4.9 of this Indenture, (e) Hedging Obligations, (f) Investments in
securities of trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers and (g) Investments as a result of consideration
received in connection with an Asset Sale made in compliance with Section 4.10
of this Indenture.
"Permitted Liens" means (i) Liens in favor of the Company
and/or its Restricted Subsidiaries other than with respect to intercompany
Indebtedness, (ii) Liens on property of a Person existing at the time such
Person is acquired by, merged into or consolidated with the Company or any
Restricted Subsidiary, provided, that such Liens were not created in
contemplation of such acquisition and do not extend to assets other than those
subject to such Liens immediately prior to such acquisition, (iii) Liens on
property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary, provided, that such Liens were not created in
contemplation of such acquisition and do not extend to assets other than those
subject to such Liens immediately prior to such acquisition, (iv) Liens incurred
in the ordinary course of business in respect of Hedging Obligations and Floor
Plan Guarantees, (v) Liens to secure Indebtedness for borrowed money of a
Subsidiary in favor of the Company or a Wholly Owned Subsidiary, (vi) Liens
incurred in the ordinary course of business to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations (exclusive of obligations constituting Indebtedness) of a like
nature, (vii) Liens existing or created on the date of this Indenture, (viii)
Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being
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contested or remedied in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided, that any reserve or other
appropriate provision as may be required in conformity with GAAP has been made
therefor, (ix) Liens arising by reason of any judgment, decree or order of any
court with respect to which the Company or any of its Restricted Subsidiaries is
then in good faith prosecuting an appeal or other proceedings for review, the
existence of which judgment, order or decree is not an Event of Default under
this Indenture, (x) encumbrances consisting of zoning restrictions, survey
exceptions, utility easements, licenses, rights of way, easements of ingress or
egress over property of the Company or any of its Restricted Subsidiaries,
rights or restrictions of record on the use of real property, minor defects in
title, landlord's and lessor's liens under leases on property located on the
premises rented, mechanics' liens, vendors' liens, and similar encumbrances,
rights or restrictions on personal or real property, in each case not
interfering in any material respect with the ordinary conduct of the business of
the Company or any of its Restricted Subsidiaries, (xi) Liens incidental to the
conduct of business or the ownership of properties incurred in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the performance of
tenders, bids, and government contracts and leases and subleases, (xii) Liens
for any interest or title of a lessor under any Capitalized Lease Obligation
permitted to be incurred under this Indenture; provided, that such Liens do not
extend to any property or asset that is not leased property subject to such
Capitalized Lease Obligation, (xiii) any extension, renewal, or replacement (or
successive extensions, renewals or replacements), in whole or in part, of Liens
described in clauses (i) through (xii) above and (xiv) Liens in addition to the
foregoing, which in the aggregate, are secured by assets with a fair market
value not in excess of $100,000 at any time.
"Permitted Transactions" means bona fide purchases and sales
of Inventory or of machining, assembly, testing and fabrication services, in any
such case made in the ordinary course of business; provided, that such
transactions are conducted in good faith and on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction with an unrelated Person.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof, or any other entity.
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"Public Equity Offering" means a bona fide underwritten public
offering of Qualified Capital Stock of Holdings or the Company, pursuant to a
registration statement filed with and declared effective by the Commission in
accordance with the Securities Act; provided, that in the event of a Public
Equity Offering by Holdings, Holdings contributes to the capital of the Company
the portion of the net cash proceeds of such Public Equity Offering necessary to
pay the aggregate redemption price, plus accrued and unpaid interest, if any, to
the redemption date of the Notes to be redeemed pursuant to Section 3.7(b) of
this Indenture.
"Purchase Money Liens" means Liens to secure or securing
Purchase Money Obligations permitted to be incurred under this Indenture.
"Purchase Money Obligations" means Indebtedness representing,
or incurred to finance, the cost (i) of acquiring or improving any assets and
(ii) of construction or build-out of manufacturing, distribution or
administrative facilities (including Purchase Money Obligations of any other
Person at the time such other Person is merged with or into or is otherwise
acquired by the Company), provided, that (a) the principal amount of such
Indebtedness does not exceed 100% of such cost, including construction charges,
(b) any Lien securing such Indebtedness does not extend to or cover any other
asset or property other than the asset or property being so acquired or improved
and (c) such Indebtedness is incurred, and any Liens with respect thereto are
granted, within 180 days of the acquisition or improvement of such property or
asset.
"QIB" shall mean "qualified institutional buyer" as defined in
Rule 144A.
"Qualified Capital Stock" means, with respect to any Person,
Capital Stock of such Person other than Disqualified Capital Stock.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Closing Date, by and between the Company and the
Initial Purchasers, relating to the Series C Notes, as such agreement may be
amended, modified or supplemented from time to time.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee located
at the Corporate Trust Office (or any successor group of the Trustee) or any
other officer
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of the Trustee customarily performing functions similar to those performed by
any of the designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Investment" means any Investment other than a
Permitted Investment. The aggregate amount of each Investment constituting a
Restricted Payment since the date of this Indenture shall be reduced by the
aggregate after-tax amount of all payments made to the Company and its
Restricted Subsidiaries with respect to such Investments; provided, that (a) the
maximum amount of such payments so applied shall not exceed the original amount
of such Investment and (b) such payments shall be excluded from the calculations
contemplated by clauses (w) through (z) under Section 4.7(a)(iv)(3) of this
Indenture.
"Restricted Securities" means Notes that bear or are required
to bear the legends set forth in Exhibit A hereto.
"Restricted Subsidiary" means a Subsidiary other than an
Unrestricted Subsidiary.
"Revolving Credit Facility" means the Loan and Security
Agreement, entered into on November 27, 1996 between the Company and the lenders
named therein as the same may be amended, modified, renewed, refunded, replaced
or refinanced from time to time, including (i) any related notes, letters of
credit, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced from time to time, and (ii) any notes, guarantees,
collateral documents, instruments and agreements executed in connection with
such amendment, modification, renewal, refunding, replacement or refinancing.
"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or under any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Series C Notes" means the Company's 10 3/4% Series C Senior
Notes due 2006, as authenticated and issued under this Indenture.
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"Series D Notes" means the Company's 10 3/4% Series D Senior
Notes due 2006, as authenticated and issued under this Indenture pursuant to an
Exchange Offer.
"subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Voting Stock thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
subsidiaries of that Person or a combination thereof and (ii) any partnership in
which such Person or any of its subsidiaries is a general partner.
"Subsidiary" means any subsidiary of the Company.
"Tax Sharing Agreement" means the Tax Sharing Agreement, dated
as of November 27, 1996 , by and between the Company and Holdings as in effect
on the date hereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb), as amended, as in effect on the date hereof until such
time as this Indenture is qualified under the TIA, and thereafter as in effect
on the date on which this Indenture is qualified under the TIA.
"transfer" means any sale, assignment, transfer, lease,
conveyance, or other disposition (including, without limitation, by way of
merger or consolidation).
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary that has been
designated by the Company (by written notice to the Trustee as provided below)
as an Unrestricted Subsidiary; provided, that a Subsidiary may not be designated
as an "Unrestricted Subsidiary" unless (a) such Subsidiary does not own any
Capital Stock of, or own or hold any Lien on any property of, the Company or any
Restricted Subsidiary (other than such Subsidiary), (b) neither immediately
prior thereto nor after giving pro forma effect to such designation, would there
exist a Default or Event of Default, (c) immediately after giving effect to such
designation on a pro forma basis, the Company could incur at least $1.00 of
Indebtedness
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pursuant to Section 4.9(a) of this Indenture and (d) the creditors of such
Subsidiary have no direct or indirect recourse (including, without limitation,
recourse with respect to the payment of principal or interest on Indebtedness of
such Subsidiary) to the assets of the Company or of a Restricted Subsidiary
(other than such Subsidiary). The Board of Directors of the Company may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if (i)
no Default or Event of Default is existing or will occur as a consequence
thereof and (ii) immediately after giving effect to such designation, on a pro
forma basis, the Company could incur at least $1.00 of Indebtedness pursuant to
Section 4.9(a) of this Indenture. Each such designation shall be evidenced by
filing with the Trustee a certified copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions. The Company shall be deemed
to make an Investment in each Subsidiary designated as an "Unrestricted
Subsidiary" immediately following such designation in an amount equal to the
Investment in such Subsidiary and its subsidiaries immediately prior to such
designation; provided, that if such Subsidiary is subsequently redesignated as a
Restricted Subsidiary, the amount of such Investment shall be deemed to be
reduced (but not below zero) by the fair market value of the net consolidated
assets of such Subsidiary on the date of such redesignation.
"U.S. Government Obligations" means direct obligations of the
United States of America, or any agency or instrumentality thereof for the
payment of which the full faith and credit of the United States of America is
pledged.
"Voting Stock" means, with respect to any Person, (i) one or
more classes of the Capital Stock of such Person having general voting power to
elect at least a majority of the board of directors, managers or trustees of
such Person (irrespective of whether or not at the time Capital Stock of any
other class or classes have or might have voting power by reason of the
happening of any contingency) and (ii) any Capital Stock of such Person
convertible or exchangeable without restriction at the option of the holder
thereof into Capital Stock of such Person described in clause (i) above.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years (rounded to the nearest
one-twelfth) obtained by dividing (i) the then outstanding principal amount of
such Indebtedness into (ii) the total of the products obtained by multiplying
(x) the amount of each then remaining installment, sinking fund, serial maturity
or other required payments of principal, including payment at final maturity, in
respect thereof, by (y)
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the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all
the Capital Stock of which (other than directors' qualifying shares) is owned by
the Company or one or more Wholly Owned Subsidiaries.
Section 1.2. Other Definitions.
Defined in
Term Section
"Affiliate Transaction"........................................ 4.11
"Change of Control Offer"...................................... 4.14
"Change of Control Payment".................................... 4.14
"Change of Control Payment Date"............................... 4.14
"Definitive Notes"............................................. 2.1
"Event of Default"............................................. 6.1
"Excess Proceeds".............................................. 4.10
"Excess Proceeds Offer"........................................ 4.10
"Excess Proceeds Offer Period"................................. 4.10
"Excess Proceeds Payment Date"................................. 4.10
"Global Note".................................................. 2.1
"Guaranty"..................................................... 10.2
"Hedging Obligations".......................................... 4.9(b)
"Paying Agent"................................................. 2.3
"Purchase Amount".............................................. 4.10
"Purchase Money Indebtedness".................................. 4.9(b)
"Refinance".................................................... 4.9(b)
"Refinancing Indebtedness"..................................... 4.9(b)
"Registrar".................................................... 2.3
"Restricted Payments".......................................... 4.7
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
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The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company, the Guarantors and any
successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE NOTES
Section 2.1. Form and Dating.
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The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A attached hereto, the terms of
which are incorporated in and made a part of this Indenture. Each Note shall
include the Guaranty executed by each of the Guarantors, if any, in the form of
Exhibit C attached hereto, the terms of which are incorporated and made a part
of this Indenture. The Notes may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company is subject
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be issued in denominations of $1,000 and integral multiples thereof.
The Notes will be issued (i) in global form (the "Global
Note"), substantially in the form of Exhibit A attached hereto (including the
text referred to in footnotes 1 and 2 thereto) and (ii) in definitive form (the
"Definitive Notes"), substantially in the form of Exhibit A attached hereto
(excluding the text referred to in footnotes 1 and 2 thereto). The Global Note
shall represent the aggregate amount of outstanding Notes from time to time
endorsed thereon; provided, that the aggregate amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of the Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.6 hereof.
Section 2.2. Execution and Authentication.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. If an Officer whose signature is on a Note no longer holds
that office at the time the Note is authenticated, the Note shall nevertheless
be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Note has been authenticated under this Indenture. The form of
Trustee's certificate of authentication to be borne by the Notes shall be
substantially as set forth in Exhibit A attached hereto.
The Trustee shall, upon a Company Order, authenticate for
original issue (i) up to $20,000,000 aggregate principal amount of Series C
Notes, and (ii) up to $150,000,000 aggregate principal amount of Series D Notes
from time to
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time for issue only in exchange for a like principal amount of Series C Notes or
Original Notes. The aggregate principal amount of Notes outstanding at any time
may not exceed $150,000,000 except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authenticating by the Trustee
includes authenticating by such agent. An authenticating agent has the same
rights as an Agent to deal with the Company or an Affiliate of the Company.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Note is registered as the owner
of such Note for the purpose of receiving payment of principal of and (subject
to the provisions of this Indenture and the Notes with respect to record dates)
interest on such Note and for all other purposes whatsoever, whether or not such
Note is overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 2.3. Registrar, Paying Agent and Depository.
The Company shall maintain (i) an office or agency where Notes
may be presented for registration of transfer or for exchange ("Registrar") and
(ii) an office or agency where Notes may be presented for payment ("Paying
Agent"). The Company initially appoints the Trustee as Registrar and Paying
Agent. The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar, except that for purposes
of Articles Three and Eight and Sections 4.1, 4.10 and 4.14 neither the Company
nor any of its Subsidiaries shall act as Paying Agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of
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the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent.
The Company initially appoints DTC to act as Depository with
respect to the Global Notes. The Trustee shall act as custodian for the
Depository with respect to the Global Notes.
Section 2.4. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or interest on the Notes and shall notify
the Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary of the Company) shall
have no further liability for the money delivered to the Trustee. If the Company
or a Subsidiary of the Company acts as Paying Agent (subject to Section 2.3), it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent.
Section 2.5. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders, including the aggregate principal amount thereof, and the Company shall
otherwise comply with TIA Section 312(a).
Section 2.6. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented by a Holder to the Registrar with a request (1) to register
the
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transfer of the Definitive Notes or (2) to exchange such Definitive Notes for an
equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, that the Definitive
Notes so presented (A) have been duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by his attorney, duly authorized in writing; and (B) in the case
of a Restricted Security, such request shall be accompanied by the following
additional documents:
(i) if such Restricted Security is being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification to that effect (in substantially the
form of Exhibit B attached hereto); or
(ii) if such Restricted Security is being transferred to a QIB
in accordance with Rule 144A or pursuant to an effective registration
statement under the Securities Act, a certification to that effect (in
substantially the form of Exhibit B attached hereto); or
(iii) if such Restricted Security is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially the
form of Exhibit B attached hereto) and an opinion of counsel reasonably
acceptable to the Company and the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(b) Transfer of a Definitive Note for a Beneficial Interest in
a Global Note. A Definitive Note may be exchanged for a beneficial interest in a
Global Note only upon receipt by the Trustee of a Definitive Note, duly endorsed
or accompanied by appropriate instruments of transfer, in form satisfactory to
the Trustee, together with:
(i) written instructions directing the Trustee to make an
endorsement on the Global Note to reflect an increase in the aggregate
principal amount of the Notes represented by the Global Note, and
(ii) if such Definitive Note is a Restricted Security, a
certification (in substantially the form of Exhibit B attached hereto)
to the effect that
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such Definitive Note is being transferred to a QIB in accordance with
Rule 144A;
in which case the Trustee shall cancel such Definitive Note and cause the
aggregate principal amount of Notes represented by the Global Note to be
increased accordingly. If no Global Note is then outstanding, the Company shall
issue and the Trustee shall authenticate a new Global Note in the appropriate
principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository in accordance with this Indenture and the procedures of
the Depository therefor, which shall include restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
(d) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note. Upon receipt by the Trustee of written transfer instructions
(or such other form of instructions as is customary for the Depository), from
the Depository (or its nominee) on behalf of any Person having a beneficial
interest in a Global Note, the Trustee shall, in accordance with the standing
instructions and procedures existing between the Depository and the Trustee,
cause the aggregate principal amount of Global Notes to be reduced accordingly
and, following such reduction, the Company shall execute and the Trustee shall
authenticate and deliver to the transferee a Definitive Note in the appropriate
principal amount; provided, that in the case of a Restricted Security, such
instructions shall be accompanied by the following additional documents:
(i) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial owner, a
certification to that effect (in substantially the form of Exhibit B
attached hereto); or
(ii) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A or pursuant to an effective registration
statement under the Securities Act, a certification to that effect (in
substantially the form of Exhibit B attached hereto); or
(iii) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially the
form of Exhibit B attached hereto) and an opinion of counsel reasonably
acceptable to the Company
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and to the Registrar to the effect that such transfer is in compliance
with the Securities Act.
Definitive Notes issued in exchange for a beneficial interest
in a Global Note shall be registered in such names and in such authorized
denominations as the Depository shall instruct the Trustee.
(e) Transfer and Exchange of Global Notes. Notwithstanding any
other provision of this Indenture, the Global Note may not be transferred as a
whole except by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository; provided, that if:
(i) the Depository notifies the Company that the Depository is
unwilling or unable to continue as Depository and a successor
Xxxxxxxxxx is not appointed by the Company within 90 days after
delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of Definitive Notes
under this Indenture,
then the Company shall execute and the Trustee shall authenticate and deliver,
Definitive Notes in an aggregate principal amount equal to the aggregate
principal amount of the Global Note in exchange for such Global Note.
(f) Cancellation and/or Adjustment of Global Notes. At such
time as all beneficial interests in the Global Note have either been exchanged
for Definitive Notes, redeemed, repurchased or cancelled, the Global Note shall
be returned to or retained and cancelled by the Trustee. At any time prior to
such cancellation, if any beneficial interest in the Global Note is exchanged
for Definitive Notes, redeemed, repurchased or cancelled, the aggregate
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
to reflect such reduction.
(g) General Provisions Relating to Transfers and Exchanges. To
permit registrations of transfers and exchanges, the Company shall execute and
the
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Trustee shall authenticate Definitive Notes and Global Notes at the Registrar's
request. All Definitive Notes and Global Notes issued upon any registration of
transfer or exchange of Definitive Notes or Global Notes shall be legal, valid
and binding obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Definitive Notes or Global
Notes surrendered upon such registration of transfer or exchange.
No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange (without transfer to another person)
pursuant to Sections 2.10, 3.7, 4.10, 4.14 and 9.5 of this Indenture).
The Company shall not be required to (i) issue, register the
transfer of or exchange Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for redemption under
Section 3.2 hereof and ending at the close of business on the day of selection;
or (ii) register the transfer of or exchange any Note so selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part; or (iii) register the transfer of or exchange a Note between a record date
and the next succeeding interest payment date.
Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of, premium, if any, and interest on
such Notes, and neither the Trustee, any Agent nor the Company shall be affected
by notice to the contrary.
(h) Exchange of Series C Notes for Series D Notes. The Series
C Notes may be exchanged for Series D Notes pursuant to the terms of the
Exchange Offer. The Trustee and Registrar shall make the exchange as follows:
The Company shall present the Trustee with an Officers'
Certificate certifying the following:
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(A) upon issuance of the Series D Notes, the transactions
contemplated by the Exchange Offer have been
consummated; and
(B) the principal amount of Series C Notes properly
tendered in the Exchange Offer that are represented
by a Global Note and the principal amount of Series C
Notes properly tendered in the Exchange Offer that
are represented by Definitive Notes, the name of each
Holder of such Definitive Notes, the principal amount
at maturity properly tendered in the Exchange Offer
by each such Holder and the name and address to which
Definitive Notes for Series D Notes shall be
registered and sent for each such Holder.
The Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Series D Notes have been
registered under Section 5 of the Securities Act and this Indenture has been
qualified under the TIA and (y) with respect to the matters set forth in Section
6(p) of the Registration Rights Agreement and (iii) a Company Order, shall
authenticate (A) a Global Note for Series D Notes in aggregate principal amount
equal to the aggregate principal amount of Series C Notes represented by a
Global Note indicated in such Officers' Certificate as having been properly
tendered and (B) Definitive Notes representing Series D Notes registered in the
names of, and in the principal amounts indicated in such Officers' Certificate.
If the principal amount at maturity of the Global Note for the
Series D Notes is less than the principal amount at maturity of the Global Note
for the Series C Notes, the Trustee shall make an endorsement on such Global
Note for Series C Notes indicating a reduction in the principal amount at
maturity represented thereby.
The Trustee shall deliver such Definitive Notes for Series D
Notes to the Holders thereof as indicated in such Officers' Certificate.
Section 2.7. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee
shall authenticate a
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replacement Note if the Trustee's requirements for replacements of Notes are
met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent or any authenticating
agent from any loss that any of them may suffer if a Note is replaced. The
Company or the Trustee may charge for its expenses in replacing a Note.
Every replacement Note is an obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.8. Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding.
If a Note is replaced pursuant to Section 2.7 hereof, the
replaced Note ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
Subject to Section 2.9 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.
Section 2.9. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or any Affiliate of the Company shall be considered as though not
outstanding, except that for purposes of determining whether the Trustee shall
be protected in relying on any such direction, waiver or consent, only Notes
that a Trustee knows to be so owned shall be considered as not outstanding.
Section 2.10. Temporary Notes.
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Pending the preparation of Definitive Notes, the Company (and
the Guarantors, if any) may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Notes that are printed, lithographed,
typewritten, mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the Definitive Notes in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as conclusively evidenced by their execution of such Notes.
If temporary Notes are issued, the Company (and the
Guarantors, if any) shall cause Definitive Notes to be prepared without
unreasonable delay. The Definitive Notes shall be printed, lithographed or
engraved, or provided by any combination thereof, or in any other manner
permitted by the rules and regulations of any principal national securities
exchange, if any, on which the Notes are listed, all as determined by the
Officers executing such Definitive Notes. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency maintained by the
Company for such purpose pursuant to Section 4.2 hereof, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Company (and the Guarantors, if any) shall execute, and the Trustee shall
authenticate and deliver, in exchange therefor the same aggregate principal
amount of Definitive Notes of authorized denominations. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as Definitive Notes.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall retain or
destroy cancelled Notes in accordance with its normal practices (subject to the
record retention requirement of the Exchange Act) unless the Company directs
them to be returned to it. The Company may not issue new Notes to replace Notes
that have been redeemed or paid or that have been delivered to the Trustee for
cancellation. All cancelled Notes held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company unless by a written
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order, signed by one Officer of the Company, the Company shall direct that
cancelled Notes be returned to it.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, which date shall be at the earliest
practicable date but in all events at least five Business Days prior to the
payment date, in each case at the rate provided in the Notes and in Section 4.1
hereof. The Company shall, with the consent of the Trustee, fix or cause to be
fixed each such special record date and payment date. At least 15 days before
the special record date, the Company (or the Trustee, in the name of and at the
expense of the Company) shall mail to the Holders a notice that states the
special record date, the related payment date and the amount of such interest to
be paid.
Section 2.13. Legends.
(a) Except as permitted by subsections (b) or (c) hereof, each
Note shall bear legends relating to restrictions on transfer pursuant to the
securities laws in substantially the form set forth on Exhibit A attached
hereto.
(b) Upon any sale or transfer of a Restricted Security
(including any Restricted Security represented by a Global Note) pursuant to
Rule 144 under the Securities Act or pursuant to an effective registration
statement under the Securities Act:
(i) in the case of any Restricted Security that is a
Definitive Note, the Registrar shall permit the Holder thereof to
exchange such Restricted Security for a Definitive Note that does not
bear the legends required by subsection (a) above; and
(ii) in the case of any Restricted Security represented by a
Global Note, such Restricted Security shall not be required to bear the
legends required by subsection (a) above, but shall continue to be
subject to the provisions of Section 2.6(c) hereof; provided, that with
respect to any request for an exchange of a Restricted Security that is
represented by a Global Note for a Definitive Note that does not bear
the legends required
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by subsection (a) above, which request is made in reliance upon Rule
144, the Holder thereof shall certify in writing to the Registrar that
such request is being made pursuant to Rule 144.
(c) The Company (and the Guarantors, if any) shall issue and
the Trustee shall authenticate Series D Notes in exchange for Series C Notes and
Original Notes accepted for exchange in the Exchange Offer. The Series D Notes
shall not bear the legends required by subsection (a) above; provided, that a
Series D Note issued in exchange for a Series C Note may continue to bear such
legend if the Holder thereof is either (A) a broker-dealer who purchased such
Series C Notes directly from the Company to resell pursuant to Rule 144A or any
other available exemption under the Securities Act, (B) a Person participating
in the distribution of the Series C Notes or (C) a Person who is an affiliate
(as defined in Rule 144A) of the Company.
ARTICLE 3
REDEMPTION
Section 3.1. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee, at
least 45 days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of Section 3.7 pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal amount of
Notes to be redeemed and (iv) the redemption price.
Section 3.2. Selection of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the Trustee
shall select the Notes to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes are listed,
or, if the Notes are not so listed, pro rata, by lot or by such method as the
Trustee deems to be fair and reasonable.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000.
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Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.3. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption by first class mail to each
Holder whose Notes are to be redeemed at such Holder's registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part only, the
portion of the principal amount of such Note to be redeemed and that,
after the redemption date, upon cancellation of the original Note, a
new Note or Notes in principal amount equal to the unredeemed portion
shall be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such
redemption payment, interest on Notes or portions of Notes called for
redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or the section of
this Indenture pursuant to which the Notes called for redemption are
being redeemed; and
(8) the CUSIP number of the Notes to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the name of the Company and at its expense; provided that the
Company shall deliver to the Trustee, at least 45 days (unless a shorter period
is acceptable to the Trustee) prior to the redemption date, an Officers'
Certificate
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requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption has been mailed to the Holders in
accordance with Section 3.3 herein, Notes called for redemption become due and
payable on the redemption date at the redemption price. At any time prior to the
mailing of a notice of redemption to the Holders pursuant to Section 3.3, the
Company may withdraw, revoke or rescind any notice of redemption delivered to
the Trustee without any continuing obligation to redeem the Notes as
contemplated by such notice of redemption.
Section 3.5. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit
with the Trustee (to the extent not already held by the Trustee) or with the
Paying Agent money in immediately available funds sufficient to pay the
redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Notes to be redeemed.
Interest on the Notes to be redeemed shall cease to accrue on
the applicable redemption date, whether or not such Notes are presented for
payment, if the Company makes or deposits the redemption payment in accordance
with this Section 3.5. If any Note called for redemption shall not be paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes.
Section 3.6. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Note equal in principal amount to the unredeemed portion of
the Note surrendered.
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Section 3.7. Optional Redemption.
(a) Except as set forth in Section 3.7(b), the Notes are not
redeemable at the Company's option prior to November 15, 2001. Thereafter, the
Notes will be subject to redemption at the option of the Company, in whole or in
part, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest thereon, if any, to the
applicable redemption date, if redeemed during the 12-month period beginning on
November 15 of the years indicated below:
Year Percentage
2001 105.375%
2002 102.688
2003 and thereafter 100.000
(b) At any time or from time to time prior to November 15,
1999, the Company may, at its option, redeem up to one-third of the aggregate
principal amount of the Notes issued on or after the Closing Date, at a
redemption price of 110.75 % of the principal amount thereof, plus accrued and
unpaid interest, if any, to the applicable redemption date, with the net cash
proceeds of one or more Public Equity Offerings; provided, that (a) such
redemption shall occur within 90 days of the date of closing of such public
offering and (b) at least two-thirds of the aggregate principal amount of the
Notes issued on or after the Closing Date remains outstanding immediately after
giving effect to each such redemption.
(c) The restrictions on optional redemptions set forth in this
Section 3.7 shall not limit the Company's right to make open market purchases of
the Notes from time to time; provided, that neither the Company nor any of its
Subsidiaries may use the proceeds of a Public Equity Offering made prior to
November 15, 1999 to make open market purchases of the Notes.
ARTICLE 4
COVENANTS
Section 4.1. Payment of Notes.
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The Company shall pay the principal and premium, if any, of,
and interest on, the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest shall be considered paid on the date
due if the Paying Agent, other than the Company or a Subsidiary of the Company,
holds on or before that date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal, premium,
if any, and interest then due. Such Paying Agent shall return to the Company, no
later than three Business Days following the date of payment, any money that
exceeds such amount of principal, premium, if any, and interest then due and
payable on the Notes. The Company shall pay any and all amounts, including
without limitation Liquidated Damages, if any, on the dates and in the manner
required under the Registration Rights Agreement.
The Company shall pay interest (including post-petition
interest) on overdue principal at the rate equal to 1% per annum in excess of
the then applicable interest rate on the Notes to the extent lawful; it shall
pay interest (including post-petition interest) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to the
extent lawful.
Section 4.2. Maintenance of Office or Agency.
The Company shall maintain an office or agency (which may be
an office of the Trustee, Registrar or co-registrar) in the Borough of
Manhattan, the City of New York where Notes may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
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The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.3.
Section 4.3. Reports.
(a) The Company shall file with the Trustee, within 15 days
after the time of filing with the Commission, copies of the reports, information
and other documents (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
If the Company is not subject to the requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Commission and the Trustee all
such reports, information and other documents as it would be required to file if
it were subject to the requirements of Section 13 or 15(d) of the Exchange Act;
provided, that the Company shall not be in default of the provisions of this
Section 4.3 for any failure to file reports with the Commission solely by
refusal by the Commission to accept the same for filing. The Company shall
deliver (or cause the Trustee to deliver) copies of all reports, information and
documents required to be filed with the Trustee pursuant to this Section 4.3 to
the Holders at their addresses appearing in the register of Notes maintained by
the Registrar. The Company shall also comply with the provisions of TIA Section
314(a).
(b) If the Company is required to furnish annual, quarterly or
current reports to its stockholders pursuant to the Exchange Act, the Company
shall cause any annual, quarterly, current or other financial report furnished
by it generally to its stockholders to be filed with the Trustee and mailed to
the Holders at their addresses appearing in the register of Notes maintained by
the Registrar. If the Company is not required to furnish annual, quarterly or
current reports to its stockholders pursuant to the Exchange Act, the Company
shall cause the financial statements of the Company and its consolidated
Subsidiaries (and similar financial statements for all unconsolidated
Subsidiaries, if any), including any notes thereto (and, with respect to annual
reports, an auditors' report by an accounting firm of established national
reputation), and a "Management's Discussion and Analysis of Financial Condition
and Results of Operations," comparable to that which would have been required to
appear in annual or quarterly reports filed under Section 13 or 15(d) of the
Exchange Act to be so filed with the Trustee and mailed to the Holders promptly,
but in any event, within 90 days after the end of each of the
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fiscal years of the Company and within 45 days after the end of each of the
first three quarters of each such fiscal year.
(c) So long as is required for an offer or sale of the Notes
to qualify for an exemption under Rule 144A, the Company (and the Guarantors, if
any) shall, upon request, provide the information required by clause (d)(4)
thereunder to each Holder and to each prospective purchaser of Notes identified
by any Holder of Restricted Securities.
Section 4.4. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate (provided, however,
that one of the signatories to such Officers' Certificate shall be the Company's
principal executive officer, principal financial officer or principal accounting
officer) stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determine 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 each of the Company and its Subsidiaries has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions hereof or thereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he may have knowledge and what action each is taking or proposes to
take with respect thereto).
(b) The year-end financial statements delivered pursuant to
Section 4.3 above shall be accompanied by a written statement of the independent
public accountants of the Company (which shall be a firm of established national
reputation reasonably satisfactory to the Trustee) that in making the
examination necessary for certification of such financial statements nothing has
come to their attention which would lead them to believe that either the Company
or any of its Subsidiaries has violated any provisions of this Indenture or, if
any such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
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(c) So long as any of the Notes are outstanding, the Company
shall deliver to the Trustee forthwith upon any Officer becoming aware of (i)
any Default or Event of Default or (ii) any event of default under any mortgage,
indenture or instrument referred to in Section 6.1(5) hereof, an Officers'
Certificate specifying such Default, Event of Default or other event of default
and what action the Company is taking or proposes to take with respect thereto.
Section 4.5. Taxes.
The Company shall, and shall cause its Subsidiaries to, file
all tax returns required to be filed and to pay prior to delinquency all
material taxes, assessments and governmental levies except as contested in good
faith and by appropriate proceedings and for which reserves have been
established in accordance with GAAP.
Section 4.6. Stay, Extension and Usury Laws.
The Company (and each Guarantor, if any) covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this Indenture;
and the Company and each Guarantor (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee but shall suffer and permit
the execution of every such power as though no such law has been enacted.
Section 4.7. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any
distribution on account of any Equity Interests of the Company or any
of its Subsidiaries (other than (x) dividends or distributions payable
in Equity Interests (other than Disqualified Stock) of the Company or
(y) dividends or distributions payable to the Company or any Wholly
Owned Subsidiary),
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(ii) purchase, redeem or otherwise acquire or retire
for value any Equity Interest of the Company, any Subsidiary or any
other Affiliate of the Company (other than any such Equity Interest
owned by the Company or any Wholly Owned Subsidiary),
(iii) make any principal payment on, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness of the Company or any Guarantor that is subordinated in
right of payment to the Notes or such Guarantor's Guarantee thereof, as
the case may be, prior to any scheduled principal payment, sinking fund
payment or other payment at the stated maturity thereof, or
(iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted Payments")
unless, at the time of such Restricted Payment:
(1) no Default or Event of Default has occurred and
is continuing or would occur as a consequence thereof,
(2) immediately after giving effect thereto on a pro
forma basis, the Company could incur at least $1.00 of additional
Indebtedness under Section 4.9(a) hereof, and
(3) such Restricted Payment (the value of any such
payment, if other than cash, being determined in good faith by the
Board of Directors and evidenced by a resolution set forth in an
Officers' Certificate delivered to the Trustee), together with the
aggregate of all other Restricted Payments made after the date of this
Indenture (including Restricted Payments permitted by clauses (i) and
(ii) of Section 4.7(b) and excluding Restricted Payments permitted by
the other clauses therein), is less than the sum of (w) 50% of the
Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first quarter commencing
immediately after the date of this Indenture to the end of the
Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a
deficit, 100% of such deficit), plus (x) 100% of the aggregate net cash
proceeds (or of the
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net cash proceeds received upon the conversion of non-cash proceeds
into cash) received by the Company from the issuance or sale, other
than to a Subsidiary, of Equity Interests of the Company (other than
Disqualified Stock) after the date of this Indenture and on or prior to
the time of such Restricted Payment, plus (y) 100% of the aggregate net
cash proceeds (or of the net cash proceeds received upon the conversion
of non-cash proceeds into cash) received by the Company from the
issuance or sale, other than to a Subsidiary, of any convertible or
exchangeable debt security of the Company that has been converted or
exchanged into Equity Interests of the Company (other than Disqualified
Stock) pursuant to the terms thereof after the date of this Indenture
and on or prior to the time of such Restricted Payment (including any
additional net cash proceeds received by the Company upon such
conversion or exchange) plus (z) 100% of the aggregate after-tax net
cash proceeds (or of the after-tax net cash proceeds received upon the
conversion of non-cash proceeds into cash) received by the Company or a
Restricted Subsidiary from the sale or other disposition of any
Investment constituting a Restricted Payment that was made after the
date of this Indenture; provided, that the gain on such sale or
disposition, if any, shall be excluded in determining Consolidated Net
Income for purpose of clause (w) above.
(b) The provisions of subsection (a) above shall not prohibit:
(i) the payment of any dividend within 60 days after
the date of declaration thereof, if at said date of declaration such
payment would not have been prohibited by the provisions of this
Indenture,
(ii) the redemption, purchase, retirement or other
acquisition of any Equity Interests of the Company in exchange for, or
out of the proceeds of the substantially concurrent sale (other than to
a Subsidiary) of, other Equity Interests of the Company (other than
Disqualified Stock),
(iii) the redemption, repurchase or payoff of any
Indebtedness (1) with proceeds of any Refinancing Indebtedness
permitted to be incurred pursuant to the provisions of Section
4.9(b)(xi) hereof or (2) solely in exchange for, or out of the proceeds
of the substantially concurrent sale (other than to a Subsidiary) of,
any Equity Interests of the Company (other than Disqualified Stock),
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(iv) Investments by the Company or any Restricted
Subsidiary, in an aggregate amount not to exceed $5.0 million, in an
Unrestricted Subsidiary formed primarily for the purpose of financing
purchases and leases of inventory manufactured by the Company or any of
its Restricted Subsidiaries,
(v) payments by the Company to Holdings pursuant to
the Tax Sharing Agreement,
(vi) distributions, loans or advances to Holdings in
an aggregate amount not to exceed $500,000 per fiscal year; provided,
that such amounts are used by Holdings to pay ordinary operating
expenses (including, without limitation, reasonable directors' fees and
expenses, indemnification obligations, professional fees and expenses
and management compensation expenses relating to employees of Holdings
and the Company),
(vii) (A) payments to, and promptly used by, Holdings
to repurchase Capital Stock or Indebtedness of Holdings from directors,
officers and employees of the Company and its Subsidiaries, including
Management Investors, who have died or whose employment has been
terminated, and (B) loans or advances to employees of the Company or
any of its Subsidiaries; provided that the aggregate amount of such
payments, loans and advances in any fiscal year shall not exceed the
lesser of (x) $500,000 plus any amount available for such payments
pursuant to this clause (x) since the date of this Indenture that have
not been used for such purpose and (y) $2.0 million,
(viii) Permitted Transactions or
(ix) other Restricted Payments in an aggregate amount
not to exceed $3.0 million;
provided, that with respect to clauses (iv), (vii) and (ix) above, no
Default or Event of Default shall have occurred and be continuing at
the time, or shall occur as a consequence thereof.
(c) In addition, so long as any of the Original Notes are
outstanding, the provisions of subsection (a) above shall not prohibit any
Restricted
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Payment to the extent such prohibition would violate or conflict with section
4.8 of the Original Indenture as in effect on the Closing Date.
(d) Not later than the date of making each Restricted Payment,
the Company shall deliver to the Trustee an Officers' Certificate stating that
such Restricted Payment was permitted, and setting forth the basis upon which
the calculations required by this Section 4.7 were computed, which calculations
may be based upon the Company's latest available financial statements.
Section 4.8. Limitation on Restrictions on Subsidiary Dividends.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary
(a) to (1) pay dividends or make any other distributions to
the Company or any of its Restricted Subsidiaries (A) on such Restricted
Subsidiary's Capital Stock or (B) with respect to any other interest or
participation in, or measured by, such Restricted Subsidiary's profits or (2)
pay any indebtedness owed to the Company or any of its Restricted Subsidiaries,
or
(b) to make loans or advances to the Company or any of its
Restricted Subsidiaries, or
(c) to transfer any of its assets to the Company or any of its
Restricted Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of:
(i) the Revolving Credit Facility, as in effect on
the Closing Date, or any refinancing thereof containing restrictions
that are not materially more restrictive than those contained in the
Revolving Credit Facility on the Closing Date,
(ii) the Original Notes and the Original Indenture,
each as in effect on the Closing Date, or any refinancing thereof
containing restrictions that are not materially more restrictive than
those contained in the
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Original Notes and the Original Indenture, respectively, on the Closing
Date;
(iii) customary net worth restrictions on the actions
specified in clause (a)(1) above contained in the German Subsidiary
Facilities,
(iv) this Indenture and the Notes,
(v) applicable law,
(vi) restrictions with respect to a Subsidiary that
was not a Subsidiary on the Closing Date in existence at the time such
Person becomes a Subsidiary (but not created as a result of or in
anticipation of such Person becoming a Subsidiary); provided, that such
restrictions are not applicable to any other Person or the properties
or assets of any other Person,
(vii) customary non-assignment and net worth
provisions of any contract or lease entered into in the ordinary course
of business,
(viii) customary restrictions on the transfer of
assets subject to a Lien permitted under this Indenture imposed by the
holder of such Xxxx,
(ix) restrictions imposed by any agreement to sell
assets or Capital Stock to any Person pending the closing of such sale,
and
(x) permitted Refinancing Indebtedness (including
Indebtedness Refinancing Acquired Debt), provided, that such
restrictions contained in any agreement governing such Refinancing
Indebtedness are not materially more restrictive than those contained
in any agreements governing the Indebtedness being Refinanced.
Section 4.9. Limitation on Incurrence of Indebtedness.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, (1) create, incur, issue,
assume, guaranty or otherwise become directly or indirectly liable, contingently
or otherwise (collectively, "incur"), with respect to any Indebtedness
(including Acquired Debt) or (2) issue any Disqualified Stock; provided, that
the Company may incur
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Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and
any Restricted Subsidiary may incur Acquired Debt, in each case if (x) no
Default or Event of Default shall have occurred and be continuing at the time
of, or would occur after giving effect on a pro forma basis to such incurrence
or issuance, and (y) the Interest Coverage Ratio for the Company's most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness
is incurred or such Disqualified Stock is issued would have been at least equal
to the ratio set forth below opposite the period in which such incurrence or
issuance occurs, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred, or the Disqualified Stock had been issued, as the case may
be, at the beginning of such four-quarter period:
PERIOD ENDING RATIO
November 15, 1998 ............................... 2.00
thereafter ...................................... 2.50
(b) The limitations of Section 4.9(a) shall not prohibit the
incurrence of:
(i) Indebtedness of the Company under the Revolving
Credit Facility and Indebtedness of Xxxxx Europe and its subsidiaries
under the German Subsidiary Facilities, provided, that the aggregate
principal amount of Indebtedness so incurred on any date, together with
all other Indebtedness incurred pursuant to this clause (i) and
outstanding on such date, shall not exceed the greater of (x) $40.0
million, less any required permanent repayments (which are accompanied
by a corresponding permanent commitment reduction) thereunder, and (y)
the sum, on such date, of (i) 90% of Eligible Receivables of the
Company and the Restricted Subsidiaries, plus (ii) 65% of Eligible
Inventory of the Company and the Restricted Subsidiaries,
(ii) performance bonds, appeal bonds, surety bonds,
insurance obligations or bonds and other similar bonds or obligations
incurred in the ordinary course of business,
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(iii) obligations incurred (1) to fix the interest
rate on any variable rate Indebtedness otherwise permitted by this
Indenture, (2) to hedge currency risk with respect to any receivable or
liability, the payment of which is determined by reference to a foreign
currency, or (3) to protect against fluctuations in the price of raw
materials used in the ordinary course of business of the Company and
its Restricted Subsidiaries (collectively, "Hedging Obligations"),
(iv) Indebtedness arising out of Capital Lease
Obligations or Purchase Money Obligations (collectively, "Purchase
Money Indebtedness") in an aggregate amount not to exceed $10.0 million
outstanding at any time,
(v) Indebtedness owed by (1) a Restricted Subsidiary
to the Company or to a Wholly Owned Subsidiary or (2) the Company to a
Wholly Owned Subsidiary,
(vi) Floor Plan Guarantees incurred in the ordinary
course of business,
(vii) Indebtedness outstanding on the date of this
Indenture, including the Notes,
(viii) Guarantees by the Company or any Guarantor of
Indebtedness otherwise permitted to be incurred hereunder,
(ix) Indebtedness arising from the honoring by a bank
or other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided, that
such Indebtedness is extinguished within three Business Days of
incurrence,
(x) Indebtedness of the Company or any Restricted
Subsidiary in addition to that described in clauses (i) through (ix)
above, so long as the aggregate principal amount of all such
Indebtedness incurred pursuant to this clause (x) does not exceed $10.0
million at any one time outstanding (which may be, but shall not be
required to be, incurred, in whole or in part, under the Revolving
Credit Facility or the Germany Subsidiary Facilities), and
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(xi) Indebtedness issued in exchange for, or the
proceeds of which are contemporaneously used to extend, refinance,
renew, replace, or refund (collectively, "Refinance") Indebtedness
referred to in clause (vii) above or this clause (xi) or Indebtedness
incurred pursuant to Section 4.9(a) hereof ("Refinancing
Indebtedness"); provided, that (A) the principal amount of such
Refinancing Indebtedness does not exceed the principal amount of
Indebtedness so Refinanced (plus the premiums required to be paid, and
the out-of-pocket expenses (other than those payable to an Affiliate of
the Company) reasonably incurred, in connection therewith), (B) the
Refinancing Indebtedness has a final scheduled maturity that exceeds
the final stated maturity, and a Weighted Average Life to Maturity that
is equal to or greater than the Weighted Average Life to Maturity, of
the Indebtedness being Refinanced, and (C) the Refinancing Indebtedness
ranks, in right of payment, no less favorable to the Notes as the
Indebtedness being Refinanced.
Section 4.10. Limitation on Asset Sales.
The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Asset Sale unless (i) the Company or such Restricted
Subsidiary receives consideration at the time of such Asset Sale at least equal
to the fair market value (as determined in good faith by the Board of Directors
as evidenced by a resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee) of the assets subject to such Asset Sale,
(ii) at least 75% of the consideration for such Asset Sale is in the form of
cash, Cash Equivalents or liabilities of the Company or any Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the
Notes or any Guarantee) that are assumed by the transferee of such assets
(provided, that there is no further recourse to the Company and its Restricted
Subsidiaries with respect to such liabilities), and (iii) within 12 months of
such Asset Sale, the Net Proceeds thereof are (a) invested in assets related to
the business of the Company or its Restricted Subsidiaries, (b) to the extent
not used as provided in clause (a), applied to make an offer to purchase the
Original Notes, if any are then outstanding, pursuant to Section 4.10 of the
Original Indenture, at a price equal to 100% of the principal amount of the
Original Notes, plus accrued and unpaid interest, if any, to the date of
purchase or (c) to the extent not used as provided in clauses (a) or (b),
applied to make an offer to purchase Notes as described below (an "Excess
Proceeds Offer"); provided, that if the amount of Net Proceeds from any Asset
Sale not used pursuant to clause (a)
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and (b) above is less than $5.0 million, the Company shall not be required to
make an offer pursuant to clause (c). Pending the final application of any such
Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce
Indebtedness under the Revolving Credit Facility or the German Subsidiary
Facilities, or temporarily invest such Net Proceeds in Cash Equivalents.
The amount of Net Proceeds not used as set forth in the
preceding clause (a) and (b) constitutes "Excess Proceeds." If the Company
elects, or becomes obligated to make an Excess Proceeds Offer, the Company shall
offer to purchase Notes having an aggregate principal amount equal to the Excess
Proceeds (the "Purchase Amount"), at a purchase price equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest, if any, to
the purchase date. The Company must commence such Excess Proceeds Offer not
later than 30 days after the expiration of the 12-month period following the
Asset Sale that produced Excess Proceeds. If the aggregate purchase price for
the Notes tendered pursuant to the Excess Proceeds Offer is less than the Excess
Proceeds, the Company and its Restricted Subsidiaries may use the portion of the
Excess Proceeds remaining after payment of such purchase price for general
corporate purposes.
Each Excess Proceeds Offer shall remain open for a period of
20 Business Days and no longer, unless a longer period is required by law (the
"Excess Proceeds Offer Period"). Promptly after the termination of the Excess
Proceeds Offer Period (the "Excess Proceeds Payment Date"), the Company shall
purchase and mail or deliver payment for the Purchase Amount for the Notes or
portions thereof tendered, pro rata or by such other method as may be required
by law, or, if less than the Purchase Amount has been tendered, all Notes
tendered pursuant to the Excess Proceeds Offer. The principal amount of Notes to
be purchased pursuant to an Excess Proceeds Offer may be reduced by the
principal amount of Notes acquired by the Company through purchase or redemption
(other than pursuant to a Change of Control Offer) subsequent to the date of the
Asset Sale and surrendered to the Trustee for cancellation.
Each Excess Proceeds Offer shall be conducted in compliance
with all applicable laws, including without limitation, Regulation 14E of the
Exchange Act and the rules thereunder and all other applicable Federal and state
securities laws. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.10, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have
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breached its obligations under this Section 4.10 by virtue thereof. The Company
shall not, and shall not permit any of its Subsidiaries to, create or suffer to
exist or become effective any restriction that would impair the ability of the
Company to make an Excess Proceeds Offer upon an Asset Sale or, if such Excess
Proceeds Offer is made, to pay for the Notes tendered for purchase.
The Company shall, no later than 30 days following the
expiration of the 12-month period following the Asset Sale that produced Excess
Proceeds, commence the Excess Proceeds Offer by mailing to the Trustee and each
Holder, at such Holder's last registered address, a notice, which shall govern
the terms of the Excess Proceeds Offer, and shall state:
(1) that the Excess Proceeds Offer is being made
pursuant to this Section 4.10, the principal amount of Notes which
shall be accepted for payment and that all Notes validly tendered shall
be accepted for payment on a pro rata basis;
(2) the purchase price and the date of purchase;
(3) that any Notes not tendered or accepted for
payment pursuant to the Excess Proceeds Offer shall continue to accrue
interest;
(4) that, unless the Company defaults in the payment
of the purchase price with respect to any Notes tendered, Notes
accepted for payment pursuant to the Excess Proceeds Offer shall cease
to accrue interest after the Excess Proceeds Payment Date;
(5) that Holders electing to have Notes purchased
pursuant to an Excess Proceeds Offer shall be required to surrender
their Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Company prior to
the close of business on the third Business Day immediately preceding
the Excess Proceeds Payment Date;
(6) that Holders shall be entitled to withdraw their
election if the Company receives, not later than the close of business
on the second Business Day preceding the Excess Proceeds Payment Date,
a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of Notes the Holder delivered
for purchase
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and a statement that such Xxxxxx is withdrawing his election to have
such Notes purchased;
(7) that Holders whose Notes are purchased only in
part shall be issued Notes representing the unpurchased portion of the
Notes surrendered; provided that each Note purchased and each new Note
issued shall be in principal amount of $1,000 or whole multiples
thereof; and
(8) the instructions that Holders must follow in
order to tender their Notes.
On or before the Excess Proceeds Payment Date, the Company
shall (i) accept for payment on a pro rata basis the Notes or portions thereof
tendered pursuant to the Excess Proceeds Offer, (ii) deposit with the Paying
Agent money sufficient to pay the purchase price of all Notes or portions
thereof so accepted and (iii) deliver to the Trustee the Notes so accepted,
together with an Officers' Certificate stating that the Notes or portions
thereof tendered to the Company are accepted for payment. The Paying Agent shall
promptly mail to each Holder of Notes so accepted payment in an amount equal to
the purchase price of such Notes, and the Trustee shall promptly authenticate
and mail to such Holders new Notes equal in principal amount to any unpurchased
portion of the Note surrendered.
The Company shall make a public announcement of the results of
the Excess Proceeds Offer as soon as practicable after the Excess Proceeds
Payment Date. For the purposes of this Section 4.10, the Trustee shall act as
the Paying Agent.
Section 4.11. Limitation on Transactions With Affiliates.
The Company shall not, and shall not permit any of the
Restricted Subsidiaries to, directly or indirectly, sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into any contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, any Affiliate (each of
the foregoing, an "Affiliate Transaction"), except for (i) Affiliate
Transactions, which together with all Affiliate Transactions that are part of a
common plan, have an aggregate value of not more than $1.0 million; provided,
that such transactions are conducted in good faith and on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction at such time on an
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arm's-length basis from a Person that is not an Affiliate of the Company or such
Restricted Subsidiary, (ii) Affiliate Transactions, which together with all
Affiliate Transactions that are part of a common plan, have an aggregate value
of not more than $5.0 million; provided, that a majority of the disinterested
members of the Board of Directors of the Company determine that such
transactions are conducted in good faith and on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction at such time on an arm's-length basis
from a Person that is not an Affiliate of the Company or such Restricted
Subsidiary, and (iii) Affiliate Transactions for which the Company delivers to
the Trustee an opinion as to the fairness to the Company or such Restricted
Subsidiary from a financial point of view, issued by an investment banking firm
of national standing.
Notwithstanding the foregoing, the following will not be
deemed to be Affiliate Transactions: (i) employment agreements entered into by
the Company or any Restricted Subsidiary in the ordinary course of business with
the approval of a majority of the disinterested members of the Company's Board
of Directors, (ii) transactions between or among the Company and/or its Wholly
Owned Subsidiaries, (iii) Restricted Payments permitted by Section 4.7 of this
Indenture, and (iv) reasonable fees and compensation paid to and indemnity
provided on behalf of, officers, directors, employees or consultants of the
Company or any Restricted Subsidiary as determined in good faith by a majority
of the disinterested directors of the Company's Board of Directors or, if none,
unanimously by the Board of Directors.
Section 4.12. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien on any asset (including, without limitation, all real, tangible or
intangible property) of the Company or any Restricted Subsidiary, whether now
owned or hereafter acquired, or on any income or profits therefrom, or assign or
convey any right to receive income therefrom, except (i) Liens on accounts
receivable and inventory and proceeds thereof (and contract rights and general
intangibles relating thereto) securing Indebtedness permitted to be incurred
under the Revolving Credit Facility, (ii) Liens on property, plant, equipment,
accounts receivable and inventory of Xxxxx Europe and its subsidiaries, and
proceeds thereof (and contract rights and general intangibles relating thereto)
securing Indebtedness permitted to be incurred
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under the German Subsidiary Facilities, (iii) Purchase Money Liens, and (iv)
Permitted Liens.
Section 4.13. Corporate Existence.
Subject to Article 5 of this Indenture, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and
effect (i) its corporate existence, and the corporate, partnership or other
existence of each of its respective Subsidiaries, in accordance with their
respective organizational documents (as the same may be amended from time to
time) and (ii) its (and its Subsidiaries) rights (charter and statutory),
licenses and franchises; provided, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any Subsidiary, if the Board of Directors on behalf of the
Company shall determine in good faith 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 4.14. Repurchase Upon a Change of Control.
Upon the occurrence of a Change of Control, the Company shall
notify the Trustee in writing thereof and shall make an offer to purchase all of
the Notes then outstanding as described below (the "Change of Control Offer") at
a purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase (the "Change of
Control Payment").
The Change of Control Offer shall be made in compliance with
all applicable laws, including without limitation, Regulation 14E of the
Exchange Act and the rules thereunder and all other applicable Federal and state
securities laws. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.14, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.14 by virtue
thereof.
Within 30 days following any Change of Control, the Company
shall commence the Change of Control Offer by mailing to the Trustee and each
Holder a notice, which shall govern the terms of the Change of Control Offer,
and shall state that:
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(i) the Change of Control Offer is being made
pursuant to this Section 4.14 and that all Notes tendered will be
accepted for payment,
(ii) the purchase price and the purchase date, which
shall be a Business Day no earlier than 30 days nor later than 60 days
from the date such notice is mailed (the "Change of Control Payment
Date"),
(iii) that any Note not tendered for payment
pursuant to the Change of Control Offer shall continue to
accrue interest,
(iv) that, unless the Company defaults in the payment
of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
on the Change of Control Payment Date,
(v) that any Holder electing to have Notes purchased
pursuant to a Change of Control Offer shall be required to surrender
such Notes, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control Payment Date,
(vi) that any Holder shall be entitled to withdraw
such election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes
such Xxxxxx delivered for purchase, and a statement that such Xxxxxx is
withdrawing his election to have such Notes purchased,
(vii) that a Holder whose Notes are being purchased
only in part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion
must be equal to $1,000 in principal amount or an integral multiple
thereof,
(viii) the instructions that Holders must follow in
order to tender their Notes, and
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(ix) the circumstances and relevant facts regarding
such Change of Control.
On the Change of Control Payment Date, the Company shall, to
the extent lawful, (i) accept for payment the Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and not withdrawn, and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers'
Certificate stating that the Notes or portions thereof tendered to the Company
are accepted for payment. The Paying Agent shall promptly mail to each Holder of
Notes so accepted payment in an amount equal to the purchase price for such
Notes, and the Trustee shall authenticate and mail to each Holder a new Note
equal in principal amount to any unpurchased portion of the Notes surrendered,
if any, provided, that each such new Note will be in principal amount of $1,000
or an integral multiple thereof.
The Company shall make a public announcement of the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date. For the purposes of this Section 4.14, the Trustee shall
act as the Paying Agent.
Section 4.15. Maintenance of Properties.
The Company shall, and shall cause each of its Subsidiaries
to, maintain their properties and assets in normal working order and condition
as on the date of this Indenture (reasonable wear and tear excepted) and make
all necessary repairs, renewals, replacements, additions, betterments and
improvements thereto, as shall be reasonably necessary for the proper conduct of
the business of the Company and its Subsidiaries taken as a whole; provided,
that nothing herein shall prevent the Company or any of its Subsidiaries from
discontinuing any maintenance of any such properties if such discontinuance is
desirable in the conduct of the business of the Company and its Subsidiaries
taken as a whole.
Section 4.16. Maintenance of Insurance.
The Company shall, and shall cause each of its Subsidiaries
to, maintain liability, casualty and other insurance (including self-insurance
consistent with prior practice) with responsible insurance companies in such
amounts and
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against such risks as is in accordance with customary industry practice in the
general areas in which the Company and its Subsidiaries operate.
Section 4.17. Restrictions on Sale and Issuance of Subsidiary Stock.
The Company shall not sell, and shall not permit any of its
Restricted Subsidiaries to issue or sell, any shares of Capital Stock of any
Restricted Subsidiary (other than directors' qualifying shares) to any Person
other than the Company or a Wholly Owned Subsidiary; provided, that the Company
and its Restricted Subsidiaries may sell all of the Capital Stock of a
Restricted Subsidiary owned by the Company and its Restricted Subsidiaries if
the Net Proceeds from such Asset Sale are used in accordance with the provisions
of Section 4.10 of this Indenture.
Section 4.18. Line of Business.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than (a) the business conducted or
proposed to be conducted by the Company and the Restricted Subsidiaries on the
Closing Date and (b) any business that in the reasonable, good faith judgment of
the Board of Directors of the Company is ancillary, complementary,
supplementary, or related to, or an extension of, any business described in
clause (a) above.
ARTICLE 5
SUCCESSORS
Section 5.1. When the Company May Merge, etc.
The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets (determined on a consolidated basis for the Company and its
Restricted Subsidiaries) in one or more related transactions to, any other
Person unless:
(i) the Company is the surviving Person or the Person
formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition has been made is a corporation
organized and existing
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under the laws of the United States, any state thereof or the District
of Columbia,
(ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the Person to
which such sale, assignment, transfer, lease, conveyance or other
disposition has been made assumes all the Obligations of the Company,
pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee, under the Notes, this Indenture and the Registration
Rights Agreement,
(iii) immediately after such transaction, no Default
or Event of Default exists, and
(iv) the Company, or any Person formed by or
surviving any such consolidation or merger, or to which such sale,
assignment, transfer, lease, conveyance or other disposition has been
made, (A) has a Consolidated Net Worth (immediately after the
transaction but prior to any purchase accounting adjustments resulting
from the transaction) equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction and (B)
shall be permitted, at the time of such transaction and after giving
pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, to incur at least
$1.00 of additional Indebtedness pursuant to Section 4.9(a) hereof.
The Company shall deliver to the Trustee prior to the
consummation of any proposed transaction an Officers' Certificate to the
foregoing effect, an Opinion of Counsel, stating all conditions precedent to the
proposed transaction provided for in this Indenture have been complied with and
a written statement from a firm of independent public accountants of established
national reputation reasonably satisfactory to the Trustee stating that the
proposed transaction complies with clause (iv).
For purposes of this Section 5.1, the sale, lease, conveyance,
assignment, transfer or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
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Section 5.2. Successor Substituted.
In the event of any transaction (other than a lease)
contemplated by Section 5.1 hereof in which the Company is not the surviving
Person, the successor formed by such consolidation or into or with which the
Company is merged or to which such sale, lease, conveyance, assignment, transfer
or other disposition is made, or formed by such reorganization, as the case may
be, shall succeed to, and be substituted for, and may exercise every right and
power of, the Company, and the Company shall be discharged from its Obligations
under this Indenture, the Notes and the Registration Rights Agreement with the
same effect as if such successor Person had been named as the Company herein or
therein.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest
on any Note 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 (or premium, if any) on any Note when the same becomes due
and payable at maturity, upon redemption, by acceleration, in
connection with an Excess Proceeds Offer, a Change of Control Offer or
otherwise;
(3) the Company defaults in the performance of or
breaches the provisions of Article V hereof;
(4) the Company or any Guarantor fails to comply with
any of its other agreements or covenants in, or provisions of, the
Notes or this Indenture and the Default continues for 60 days after
written notice thereof has been given to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in
aggregate principal
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amount of the then outstanding Notes, such notice to state that it is a
"Notice of Default;"
(5) a default occurs under (after giving effect to
any applicable grace periods or any extension of any maturity date) any
mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any Restricted Subsidiary (or the payment of
which is guaranteed by the Company or any Restricted Subsidiary),
whether such Indebtedness or guarantee now exists or is created after
the date of this Indenture, if (a) either (i) such default results from
the failure to pay principal on such Indebtedness or (ii) as a result
of such default the maturity of such Indebtedness has been accelerated,
and (b) the principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness with respect to which
such a payment default (after the expiration of any applicable grace
period or any extension of the maturity date) has occurred, or the
maturity of which has been so accelerated, exceeds $5.0 million in the
aggregate;
(6) a final non-appealable judgment or judgments for
the payment of money (other than judgments as to which a reputable
insurance company has accepted full liability) is or are entered by a
court or courts of competent jurisdiction against the Company or any
Restricted Subsidiary and such judgment or judgments remain
undischarged, unbonded or unstayed for a period of 60 days after entry,
provided that the aggregate of all such judgments exceeds $2.5 million;
(7) written assertion by the Company or any of the
Guarantors, of the unenforceability of their obligations under the
Indenture, the Notes, or the Guarantees;
(8) the Company or any of its Restricted Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order
for relief against it in an
involuntary case,
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(c) consents to the appointment of a
Custodian of it or for all or
substantially all of its property,
(d) makes a general assignment for the
benefit of its creditors,
(e) admits in writing its inability to
pay debts as the same become due;
or
(9) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(a) is for relief against the Company
or any of its Restricted
Subsidiaries in an involuntary
case,
(b) appoints a Custodian of the Company
or any of its Restricted
Subsidiaries or for all or
substantially all of their
property,
(c) orders the liquidation of the
Company, or any of its Restricted
Subsidiaries, and the order or
decree remains unstayed and in
effect for 60 days.
The Company shall, upon becoming aware that a Default or Event
of Default has occurred, deliver to the Trustee a statement specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 6.2. Acceleration.
If an Event of Default (other than an Event of Default
specified in clauses (8) and (9) of Section 6.1) occurs and is continuing, the
Trustee by written notice to the Company, or the Holders of at least 25% in
principal amount of the then outstanding Notes by written notice to the Company
and the Trustee, may declare the unpaid principal of and any accrued interest on
all the Notes to be due and payable. Upon such declaration the principal and
interest shall be due and payable immediately. If an Event of Default specified
in clause (8) or (9) of Section 6.1 with respect to the Company occurs, such an
amount shall ipso facto
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become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder. At any time after a declaration of
acceleration, but before a judgment or decree for payment of the money due has
been obtained by the Trustee, the Holders of a majority in principal amount of
the Notes outstanding, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if (a) the Company has
paid or deposited with the Trustee a sum sufficient to pay (i) all sums paid or
advanced by the Trustee and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, (ii) all overdue interest
(including any interest accrued subsequent to an Event of Default specified in
clauses (8) and (9) of Section 6.1) on all Notes, (iii) the principal of and
premium, if any, on any Notes that have become due otherwise than by such
declaration or occurrence of acceleration and interest thereon at the rate borne
by the Notes, and (iv) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Notes; (b) all Events of
Default, other than the non-payment of principal of and interest on the Notes
that have become due solely by such declaration or occurrence of acceleration,
have been cured or waived; and (c) the rescission would not conflict with any
judgment, order or decree of any court of competent jurisdiction.
Section 6.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy (under this Indenture or otherwise) to collect
the payment of principal or interest on the Notes to enforce the performance of
any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.4. Waiver of Past Defaults.
Holders of a majority of the aggregate principal amount of the
then outstanding Notes by written notice to the Company and the Trustee may on
behalf of the Holders of all of the Notes (a) waive any existing Default or
Event of
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Default and its consequences under this Indenture except a continuing Default or
Event of Default in the payment of the principal of, or interest on, any Note or
a Default or an Event of Default with respect to any covenant or provision which
cannot be modified or amended without the consent of the Holder of each
outstanding Note affected, and/or (b) rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree if
all existing Events of Default (except nonpayment of principal or interest that
has become due solely because of the acceleration) have been cured or waived.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
Section 6.5. Control by Majority.
The Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of other Holders, or that may involve the
Trustee in personal liability.
Section 6.6. Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or
the Notes only if:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
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(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
Section 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal and interest on
the Note, on or after the respective due dates expressed in the Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
Section 6.8. Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(1) or (2)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal and interest remaining unpaid on the Notes and interest on
overdue principal (and premium, if any) and, to the extent lawful, interest and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.9. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company (or any
other obligor under the Notes), their creditors or their property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or
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deliverable on any such claims and any custodian in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders of the Notes may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.7, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively;
Third: without duplication, to Holders for any other
Obligations owing to the Holders under the Notes or this Indenture; and
Fourth: to the Company or to such party as a court of
competent jurisdiction shall direct.
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The Trustee may fix a record date and payment date for any
payment to Holders.
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 a 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 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.6, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.1. Duties of Trustee.
(1) 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 their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(2) Except during the continuance of an Event of Default:
(a) The duties of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee
need perform only those duties that are specifically set forth in this
Indenture, and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee.
(b) 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
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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.
(3) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(a) This paragraph does not limit the effect of
paragraph (2) of this Section.
(b) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts.
(c) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
(4) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (1), (2) and (3) of this Section.
(5) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee may refuse
to perform any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.2. Rights of Trustee.
(1) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
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(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company, on behalf of the Company.
(6) Except with respect to Section 4.1, the Trustee shall have
no duty to inquire as to the performance of the Company's covenants in Article 4
hereof. In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring pursuant
to Sections 6.1(1), 6.1(2) and 4.1, or (ii) any Default or Event of Default of
which the Trustee shall have received written notification or obtained actual
knowledge.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Company or
an Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11.
Section 7.4. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be ac-
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countable for the Company's use of the proceeds from the Notes or any money paid
to the Company or upon the Company's direction under any provision hereof, it
shall not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and
if the Trustee has knowledge thereof (within the meaning of Section 7.2(b)), the
Trustee shall mail to the Holders a notice of the Default or Event of Default
within 30 days after it occurs.
Section 7.6. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall mail to the Holders a
brief report dated as of such reporting date that complies with TIA Section
313(a) (but if no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA Section 313(b). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the
TIA, a copy of each report at the time of its mailing to the Holders shall be
filed with the Commission and each stock exchange on which the Notes are listed.
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
Section 7.7. 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. 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 promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall
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include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel, except such disbursements, advances and expenses as may be
attributable to its negligence or bad faith.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it without negligence or bad faith
on its part arising out of or in connection with the acceptance or
administration of its duties under this Indenture, except as set forth below.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense. In the event that a conflict of interest
or conflicting defenses would arise in connection with the representation of the
Company and the Trustee by the same counsel, 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 consent,
which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.7 shall
survive the satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through its own negligence
or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal of (and
premium, if any) and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(8) or (9) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8. Replacement of Trustee.
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A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
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 then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee after written request by any Holder who has
been a Holder for at least six months fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee
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shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to the
Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided that all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.7.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Company's obligations under Section 7.7 hereof shall continue for the benefit of
the retiring Trustee, and the Company shall pay to any such replaced or removed
Trustee all amounts owed under Section 7.7 upon such replacement or removal.
Section 7.9. Successor Trustee by Xxxxxx, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that shall (a)
be a corporation organized and doing business under the laws of the United
States of America or of any state thereof or of the District of Columbia
authorized under such laws to exercise corporate trustee power, (b) be subject
to supervision or examination by Federal or state or the District of Columbia
authority, and (c) have a combined capital and surplus of at least $100,000,000
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The
Trustee is subject to TIA Section 310(b); provided, however, that there shall be
excluded from the operations of TIA Section 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to 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
therein. The provisions of TIA Section 311 shall apply to the Company, as
obligor on the Notes.
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ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.1. Termination of Company's Obligations.
This Indenture shall cease to be of further effect (except
that Section 7.7, 8.3 and 8.4 shall survive) when all outstanding Notes
theretofore authenticated and issued have been delivered (other than (i)
destroyed, lost or stolen Notes that have been replaced or paid and (ii) Notes
for whose payment money has theretofore been deposited in trust and thereafter
repaid to the Company pursuant to Section 8.3(b) hereof) to the Trustee for
cancellation and all sums payable by the Company hereunder have been paid. In
addition, the Company may (A) if applicable, be discharged from any and all
Obligations in respect of the Notes, other than the obligation to duly and
punctually pay the principal of, and premium, if any, and interest on the Notes,
in accordance herewith, or (B) if applicable, omit to comply with restrictive
covenants, and such omission will not be deemed to be an Event of Default if:
(1) with respect to clauses (A) and (B), the Company
irrevocably deposits in trust with the Trustee or at the option of the
Trustee, with a trustee reasonably satisfactory to the Trustee and the
Company under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, money or U.S. Government
Obligations sufficient (as certified by a nationally recognized
accounting firm designated by the Company) to pay principal and
interest and premium, if any, on the Notes to maturity or redemption
and each installment of interest, if any, on the due dates thereof on
the Notes, as the case may be, and to pay all other sums payable by it
hereunder, and with respect to clause (B) the Obligations under this
Indenture other than with respect to such covenants and Events of
Default which will remain in full force and effect, provided that (i)
the trustee of the irrevocable trust shall have been irrevocably
instructed to pay such money or the proceeds of such U.S. Government
Obligations to the Trustee and (ii) the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of said principal, premium, if
any, and interest with respect to the Notes;
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(2) with respect to clause (A), the Company has received from,
or there has been published by, the U.S. Internal Revenue Service a
ruling or there has been a change in laws which in the opinion of
independent counsel, which the Company shall deliver to the Trustee,
provides that holders of the Notes will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge had not
occurred and the Notes were otherwise paid or redeemed in accordance
with the provisions of this Indenture;
(3) with respect to clause (B), the Company has delivered to
the Trustee an opinion of independent counsel to the effect that the
holders of the Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance
and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred and the Notes were redeemed
pursuant to Article 3 hereof without exercising the option of the
Company pursuant to this Section 8.1; and
(4) the Company delivers to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture have been complied with, and an Opinion of
Counsel to the same effect.
Then, this Indenture shall cease to be of further effect (except as provided in
this paragraph), and the Trustee, on demand of the Company, shall execute proper
instruments acknowledging confirmation of and discharge under this Indenture.
However, the Company's Obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7, 4.1,
4.6, 7.7, 7.8, 8.3 and 8.4, the Guarantors' Obligations, and the Trustee's and
Paying Agent's obligations in Section 8.3 shall survive until the Notes are no
longer outstanding. Thereafter, only the Company's obligations in Section 7.7
and 8.4 and the Company's, Trustee's and Paying Agent's obligations in Section
8.3 shall survive.
After such irrevocable deposit has been made pursuant to this
Section 8.1 and satisfaction of the other conditions set forth herein, the
Trustee
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upon request shall acknowledge in writing the discharge of the Company's
obligations under this Indenture except for those surviving obligations
specified above.
In order to have money available on a payment date to pay
principal, premium, if any, or interest on the Notes, the U.S. Government
Obligations shall be payable as to principal, premium, if any, or interest at
least one Business Day before such payment date in such amounts as shall provide
the necessary money. U.S. Government Obligations shall not be callable at the
issuer's option.
Section 8.2. Application of Trust Money.
The Trustee, or a trustee satisfactory to the Trustee and the
Company, shall hold in trust, money or U.S. Government Obligations deposited
with it pursuant to Section 8.1. It shall apply the deposited money and the
money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal, premium, if any, and
interest on the Notes.
Section 8.3. Repayment to the Company.
(a) The Trustee and the Paying Agent shall promptly pay to the
Company upon written request any excess money or securities (as certified by an
independent public accountant reasonably acceptable to the Trustee) held by them
at any time.
(b) The Trustee and the Paying Agent shall pay to the Company
upon written request any money held by them for the payment of principal,
premium, if any, or interest that remains unclaimed for two years after the date
upon which such payment shall have become due; provided that the Company shall
have either caused notice of such payment to be mailed to each Holder entitled
thereto no less than 30 days prior to such repayment or within such period shall
have published such notice in a financial newspaper of widespread circulation
published in the City of New York, including, without limitation, The Wall
Street Journal. After payment to the Company, Holders entitled to the money must
look to the Company for payment as general creditor unless an applicable
abandoned property law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
Section 8.4. Reinstatement.
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If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 8.2 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Obligations of the Company and the Guarantors under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.1 until such time as the Trustee or Paying Agent
is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 8.2; provided that if the Company has made any payment
of interest on or principal of any Notes because of the reinstatement of its
Obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
Section 9.1. Without Consent of Holders.
The Company and the Trustee may amend this Indenture and the
Notes without the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition
to or in place of certificated Notes;
(3) to comply with Article 5 and Section 10.1 hereof;
(4) to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does
not adversely affect the legal rights hereunder or thereunder of any
Holder;
(5) to comply with requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the TIA; or
(6) to release any Guarantee of the Notes permitted
to be released under Section 10.7 hereof.
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Upon the request of the Company, accompanied by a resolution
of the Board of Directors of the Company authorizing the execution of any such
supplemental indenture or amendment, and upon receipt by the Trustee of the
documents described in Section 9.6 hereof required or requested by the Trustee,
the Trustee shall join with the Company in the execution of any supplemental
indenture or amendment authorized or permitted by the terms of this Indenture
and shall make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
supplemental indenture or amendment that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.2. With Consent of Holders.
Subject to Sections 6.4 and 6.7 hereof, the Company and the
Trustee, as applicable, may amend, or waive any provision of, this Indenture or
the Notes with the written consent of the Holders of at least a majority of the
principal amount of the then outstanding Notes.
Upon the request of the Company, accompanied by a resolution
of the Board of Directors of the Company authorizing the execution of any such
supplemental indenture or amendment, and upon filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders as aforesaid,
and upon receipt by the Trustee of the documents described in Section 9.6
hereof, the Trustee shall join with the Company in the execution of such
supplemental indenture or amendment unless such supplemental indenture or
amendment 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 supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed supplemental
indenture or amendment, but it shall be sufficient if such consent approves the
substance thereof.
After a supplemental indenture or amendment under this Section
becomes effective, the Company shall mail to the Holders of each Note affected
thereby a notice briefly describing the amendment or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
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way impair or affect the validity of any such supplemental indenture, amendment
or waiver.
Notwithstanding any other provision hereof, without the
consent of each Holder affected, an amendment or waiver under this Section may
not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment
of interest, including default interest, on any Note;
(3) reduce the principal of, or the premium on, or
change the fixed maturity of any Note or alter Article III hereof or
numbered paragraphs 5 or 6 of Exhibit A to this Indenture or the price
at which the Company shall offer to purchase such Notes pursuant to
Sections 4.10 or 4.14 hereof;
(4) waive a Default or Event of Default in the
payment of principal of or premium, if any, or interest on, or
redemption payment with respect to, any Note (other than a Default in
the payment of an amount due as a result of an acceleration if the
Holder rescinds such acceleration pursuant to Section 6.2);
(5) make any Note payable in money other than that
stated in the Notes;
(6) make any change in Section 6.4 or 6.7 hereof or
in this Section 9.2; or
(7) make any change adversely affecting the
contractual ranking of the Obligations.
Section 9.3. Compliance with Trust Indenture Act.
If, at the time of an amendment to this Indenture or the
Notes, this Indenture shall be qualified under the TIA, every amendment to this
Indenture or the Notes shall be set forth in a supplemental indenture that
complies with the TIA as then in effect.
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Section 9.4. Revocation and Effect of Consents.
Until a supplemental indenture, an amendment or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. A supplemental indenture, amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
The Company may fix a record date for determining which
Holders must consent to such supplemental indenture, amendment or waiver. If the
Company fixes a record date, the record date shall be fixed at (i) the later of
30 days prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished to the Trustee prior to such solicitation
pursuant to Section 2.5, or (ii) such other date as the Company shall designate.
Section 9.5. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about a
supplemental indenture, amendment or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue and the Trustee
shall authenticate new Notes that reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment or waiver.
Section 9.6. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if the amendment does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplemental indenture, the Trustee shall be entitled to receive,
if requested, an indemnity reasonably satisfactory to it and to receive and,
subject to Section 7.1, shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that such amendment
or supplemental indenture is authorized or permitted by this Indenture, that it
is not inconsistent herewith, and that it shall be valid and binding upon the
Company in accordance with its terms. The
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Company may not sign an amendment or supplemental indenture until the Board of
Directors of the Company approves it.
ARTICLE 10
GUARANTY
Section 10.1. Guarantors.
The Company shall:
(a) cause each Restricted Subsidiary that is not a Foreign
Subsidiary to become a Guarantor hereunder and execute and deliver to the
Trustee a Guaranty in the form of Exhibit C attached hereto and a supplemental
indenture in form reasonably satisfactory to the Trustee pursuant to which such
Restricted Subsidiary shall unconditionally guarantee all of the Company's
Obligations as set forth in Section 10.2 of this Indenture; and
(b) cause such Restricted Subsidiary to deliver to the Trustee
an Opinion of Counsel, in form reasonably satisfactory to the Trustee, that (i)
such supplemental indenture and such Guaranty have been duly authorized,
executed and delivered by such Restricted Subsidiary and (ii) this Indenture and
such Guaranty constitute a legal, valid, binding and enforceable obligation of
such Restricted Subsidiary, subject to customary exceptions for bankruptcy,
fraudulent transfer and equitable principles.
Each Note issued after the date of execution by any Guarantor
of a Guaranty shall be endorsed with a form of Guaranty that has been executed
by such Guarantor. However, the failure of any Note to have endorsed thereon a
Guaranty executed by such Guarantor shall not affect the validity or
enforceability of such Guaranty against such Guarantor.
Section 10.2. Guaranty.
For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, subject to Section 10.4 hereof,
each Guarantor, jointly and severally, hereby unconditionally guarantees (such
guarantees granted from time to time pursuant to Section 10.6, being the
"Guaranty") to each Holder and the Trustee, irrespective of the validity or
enforceability of this Indenture, the
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Notes or the Obligations hereunder or thereunder: (i) the due and punctual
payment of the principal and premium, if any, of, and interest on, the Notes
(including, without limitation, interest after the filing of a petition
initiating any proceedings referred to in clause (8) or (9) of Section 6.1
hereof), whether at maturity or on an interest payment date, by acceleration,
call for redemption or otherwise; (ii) the due and punctual payment of interest
on the overdue principal and premium, if any, of, and interest on, the Notes, if
lawful; (iii) the due and punctual payment and performance of all other
Obligations, all in accordance with the terms set forth herein and in the Notes;
and (iv) in case of any extension of time of payment or renewal of any Notes or
any of such other Obligations, the due and punctual payment or performance
thereof in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due by the
Company of any amount so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately.
Each Guarantor hereby agrees that (i) its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes, this Indenture or the Obligations hereunder or
thereunder, the absence of any action to enforce the same, any waiver or consent
by any Holder with respect to any provisions hereof or thereof, any amendment of
this Indenture or the Notes, the recovery of any judgment against the Company or
any of its Subsidiaries, any action to enforce the same, or any other
circumstance that might otherwise constitute a legal or equitable discharge or
defense of a guarantor and (ii) this Guaranty will not be discharged except by
complete performance of the Obligations.
Each Guarantor hereby agrees that it shall not be entitled to
and irrevocably waives (i) diligence, presentment, demand of payment, filing of
claim with a court in the event of insolvency or bankruptcy of the Company, any
Guarantor, any other Subsidiary of the Company or any other obligor under the
Notes, any right to require a proceeding first against the Company, any
Guarantor, any other Subsidiary of the Company or any other obligor under this
Indenture or the Notes, protest, notice and all demands whatsoever, (ii) any
right of subrogation, reimbursement, exoneration, contribution or
indemnification in respect of any Obligations guaranteed hereby and (iii) any
claim or other rights that it may now or hereafter acquire against the Company
or any of its Subsidiaries that arise from the existence or performance of its
Obligations under this Guaranty, including, without limitation, any right to
participate in any claim or remedy of a Holder against the Company or any of its
Subsidiaries, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, by any
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payment made hereunder or otherwise, and including, without limitation, the
right to take or receive from the Company or any of its Subsidiaries, directly
or indirectly, in cash or other property, by setoff or in any other manner,
payment or security on account of such claim or other rights.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company, any Guarantor, any other Subsidiary of the
Company or any other obligor under this Indenture or the Notes, trustee,
liquidator, or other similar official, any amount paid by the Company, any
Guarantor, any other Subsidiary of the Company or any other obligor under this
Indenture or the Notes to the Trustee or such Holder, this Guaranty, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor hereby agrees that, as between the Guarantors,
on the one hand, and the Holders and the Trustee, on the other hand, (i) the
maturity of the Obligations guaranteed hereby may be accelerated as provided in
Section 6.2 for the purposes of this Guaranty, notwithstanding any stay,
injunction or other prohibition preventing such acceleration as to the Company
of the Obligations guaranteed hereby, and (ii) in the event of any declaration
of acceleration of those Obligations as provided in Section 6.2, those
Obligations (whether or not due and payable) will forthwith become due and
payable by each of the Guarantors for the purpose of this Guaranty.
Section 10.3. Execution and Delivery of Guaranty.
To evidence the Guaranty set forth in Section 10.2, the
Company and each Guarantor hereby agrees that (a) a notation of such Guaranty
substantially as set forth on Exhibit C attached hereto shall be endorsed on
each Note authenticated and delivered by the Trustee such endorsement shall be
executed on behalf of each Guarantor by its Chairman of the Board, President,
Chief Financial Officer, Chief Operating Officer, Treasurer, Secretary or any
Vice-President and (b) a counterpart signature page to this Indenture shall be
executed on behalf of each Guarantor by its Chairman of the Board, President or
one of its Vice Presidents and attested to by another officer acknowledging such
Guarantor's agreement to be bound by the provisions hereof and thereof.
Each Guarantor hereby agrees that its Guaranty set forth in
Section 10.7 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guaranty.
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If an officer whose signature is on this Indenture no longer
holds that office at the time the Trustee authenticates the Notes on which a
Guaranty is endorsed, the Guaranty shall nevertheless be valid.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guaranty
set forth in this Indenture on behalf of the Guarantor.
Section 10.4. Limitation on Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guaranty not constitute a fraudulent transfer or
conveyance for purposes of any Federal or state law. To effectuate the foregoing
intention, the Holders and any Guarantors hereby irrevocably agree that the
obligations of each Guarantor under its Guaranty 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 Guaranty, result in the
Obligations of such Guarantor under the Guaranty not constituting a fraudulent
conveyance or fraudulent transfer under Federal or state law.
Section 10.5. Rights under the Guaranty.
(a) No payment by any Guarantor pursuant to the provisions
hereof shall give rise to any claim of the Guarantors against the Trustee or any
Holder.
(b) Each Guarantor waives notice of the issuance, sale and
purchase of the Notes and notice from the Trustee or the Holders from time to
time of any of the Notes of their acceptance and reliance on this Guaranty.
(c) No set-off, counterclaim, reduction or diminution of any
obligation or any defense of any kind or nature (other than performance by the
Guarantors of their obligations hereunder) that any Guarantor may have or assert
against the Trustee or any Holder shall be available hereunder to such
Guarantor.
(d) Each Guarantor shall pay all costs, expenses and fees,
including all reasonable attorneys' fees, that may be incurred by the Trustee in
enforcing or
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attempting to enforce the Guaranty or protecting the rights of the Trustee or
the Holder, if any, in accordance with this Indenture.
Section 10.6. Primary Obligations.
The Obligations of each Guarantor hereunder shall constitute a
guaranty of payment and not of collection. Each Guarantor hereby agrees that it
is directly liable to each Holder hereunder, that the Obligations of each
Guarantor hereunder are independent of the Obligations of the Company or any
other Guarantor, and that a separate action may be brought against each
Guarantor, whether such action is brought against the Company or any other
Guarantor or whether the Company or any other Guarantor is joined in such
action. Each Guarantor will agree that its liability hereunder shall be
immediate and shall not be contingent upon the exercise or enforcement by the
Trustee or the Holders of whatever remedies they may have against the Company or
any other Guarantor, or the enforcement of any lien or realization upon any
security Trustee may at any time possess. Each Guarantor hereby agrees that any
release that may be given by the Trustee or the Holders to the Company or any
other Guarantor shall not release such Guarantor.
Section 10.7. Release of Guarantors.
If all of the Capital Stock of any Guarantor is sold to a
Person (other than the Company or any of its Restricted Subsidiaries) and the
Net Proceeds from such Asset Sale are used in accordance with Section 4.10, then
such Guarantor will be released and discharged from all of its obligations under
its Guarantee of the Notes and this Indenture.
ARTICLE 11
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
Section 11.2. Notices.
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Any notice or communication by the Company or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first-class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' addresses:
If to the Company:
XXXXX Material Handling Company
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopier No.: (000) 000-0000
If to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division
Telecopier No.: (000) 000-0000
The Company or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; upon receipt, if deposited in the mail, postage
prepaid; when answered back, if telexed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery. All notices and
communications to the Trustee shall be deemed to have been duly given only if
actually received by the Trustee.
Any notice or communication to a Holder shall be mailed by
first-class mail, certified or registered, return receipt requested, to his
address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
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If a notice communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 11.3. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and any other person shall have the
protection of TIA Section 312(c).
Section 11.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5) 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 complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5) stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been complied with.
Section 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
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(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with,
provided that with respect to matters of fact, an Opinion of Counsel may rely
upon an Officers' Certificate or a certificate of a public official.
Section 11.6. 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.
Section 11.7. Legal Holidays.
If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 11.8. No Recourse Against Others.
No director, officer, employee, incorporator, stockholder or
controlling person of the Company or any Guarantor, as such, shall have any
liability for any obligations of the Company under the Notes, this Indenture or
the Registration Rights Agreement or for any claim based on, in respect of, or
by reason of such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release shall be part of
the consideration for the issuance of the Notes and the Guarantees.
Notwithstanding the foregoing, nothing in this provision shall be construed as a
waiver or release of any claims under the Federal securities laws.
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Section 11.9. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND THE RIGHTS
OF THE PARTIES DETERMINED 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. THE COMPANY HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT
MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. THE COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS
ADDRESS SET FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PURCHASER TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
Section 11.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
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Section 11.11. Successors.
All agreements of the Company and any Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee in this Indenture shall bind its successor.
Section 11.12. Severability.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 11.13. Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 11.14. 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 hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Indenture as of the date first written above.
XXXXX MATERIAL HANDLING
COMPANY
Attest: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
Name: Xxxxxx X. Xxxxx
Title: Vice President
GUARANTORS
BLUE GIANT CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
HYDROLECTRIC LIFT TRUCKS, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
Attest: /s/ Xxxxx X. Xxxxx
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Vice President
Name: Xxxxx X. Xxxxx
Title: Vice President
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EXHIBIT A
(Face of Security)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.(1)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE WHICH IS THREE YEARS (OR SUCH
SHORTER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(K) AS PERMITTING
RESALES BY NON-AFFILIATES OF RESTRICTED SECURITIES WITHOUT RESTRICTION) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF SUCH NOTE) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A,
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS PURCHASING THE NOTE FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE.
------------------
(1) This paragraph should be included only if the Note is issued in global
form.
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XXXXX MATERIAL HANDLING COMPANY
10 3/4% [SERIES C] [SERIES D] SENIOR NOTE
DUE 2006
NO. $___________
CUSIP NO.
XXXXX Material Handling Company, a Delaware corporation
(the "Company"), as obligor, for value received promises to pay to _____________
or registered assigns, the principal sum of [ ] Dollars on
November 15, 2006. Interest Payment Dates: May 15 and November 15 and on the
maturity date. Record Dates: May 1 and November 1 (whether or not a Business
Day).
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Dated:
XXXXX Material Handling Company
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
Trustee's Certificate of Authentication:
This is one of the Notes referred to
in the within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:______________________________
Authorized Signature
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(Back of Security)
10 3/4% [SERIES C] [SERIES D] SENIOR NOTE
DUE NOVEMBER 15, 2006
1. Interest. XXXXX Material Handling Company, a Delaware
corporation (the "Company"), as obligor, promises to pay interest on the
principal amount of this Note at the rate and in the manner specified below.
The Company shall pay, in cash, interest on the principal
amount of this Note, at the rate of 103/4% per annum. The Company shall pay
interest semi-annually on May 15 and November 15 of each year, and on the
maturity date, commencing on November 15, 1998, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest Payment
Date").
Interest shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Interest shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from May
15, 1998. To the extent lawful, the Company shall pay interest on overdue
principal at the rate of 1% per annum in excess of the then applicable interest
rate on the Notes; the Company shall pay interest on overdue installments of
interest (without regard to any applicable grace periods) at the same rate to
the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are registered Holders of
Notes at the close of business on the record date next preceding the Interest
Payment Date, even if such Notes are cancelled after such record date and on or
before such Interest Payment Date. The Holder must surrender this Note to a
Paying Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
principal and interest by check to a Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee shall
act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-registrar without notice to any Holder. Subject to certain
exceptions, the Company or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture
dated as of July 17, 1998 (the "Indenture") between the Company and the Trustee.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939 (the "TIA") (15
U.S. Code Sections 77aaa-77bbbb) as in effect on the date of the Indenture
until such time as the Indenture is qualified under the TIA and thereafter as in
effect on the date the Indenture is so qualified. The Notes are subject to all
such terms, and Holders are referred to the Indenture and such act for a
statement of such terms. The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Notes. Terms not otherwise defined
herein shall have the meanings assigned in the Indenture. The Notes are limited
to $150,000,000 in aggregate principal amount.
5. Optional Redemption. The Notes are not redeemable at the
Company's option prior to November 15, 2001. Thereafter, the Notes will be
subject to redemption at the option of the Company, in whole or in part, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest thereon, if any, to the applicable redemption
date, if redeemed during the 12-month period beginning on November 15 of the
years indicated below:
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Year Percentage
---- ----------
2001 ................................... 105.375%
2002 ................................... 102.688
2003 and thereafter .................... 100.000
Notwithstanding the foregoing, at any time or from time to
time prior to November 15, 1999, the Company may, at its option, redeem up to
one-third of the original principal amount of the Notes issued on or after the
Closing Date, at a redemption price of 110.75 % of the principal amount thereof,
plus accrued and unpaid interest, if any, to the applicable redemption date,
with the net cash proceeds of one or more Public Equity Offerings; provided,
that (a) such redemption shall occur within 90 days of the date of closing of
such public offering and (b) at least two-thirds of the aggregate principal
amount of the Notes issued on or after the Closing Date remains outstanding
immediately after giving effect to each such redemption.
6. Mandatory Redemption. There shall be no mandatory
redemption of the Notes.
7. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar and the
Company need not exchange or register the transfer (i) of any Note or portion of
a Note selected for redemption or (ii) of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
8. Persons Deemed Owners. The registered Holder of a Note may
be treated as its owner for all purposes, subject to the provisions of the
Indenture with respect to the record dates for the payment of interest.
9. Amendments and Waivers. Subject to certain exceptions, the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for
Notes), and any existing Default or Event of Default (except a payment default)
may be waived with the consent of the Holders of a majority in principal amount
of the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for Notes). Without the consent of any Holders,
the Indenture and the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for assumption of the Company's
obligations to the Holders in the case of a merger or consolidation, to provide
for uncertificated Notes in addition to or in place of certificated Notes, to
make any change that would provide any additional rights or benefits to the
Holders of the Notes, or that does not adversely affect the legal rights of any
Holder, or to comply with requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the TIA.
10. Defaults and Remedies. If an Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately, except that in the case of an Event of Default arising from certain
events of bankruptcy or insolvency, all outstanding Notes become due and payable
immediately without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in principal
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amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Company must furnish an annual compliance certificate to
the Trustee.
11. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not Trustee.
12. No Recourse Against Others. No director, officer,
employee, incorporator, stockholder or controlling person of the Company or
Guarantor, as such, shall have any liability for any obligations of the Company
under the Notes, the Indenture or the Registration Rights Agreement or for any
claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes and the Guarantees. Notwithstanding the foregoing, nothing in this
provision shall be construed as a waiver or release of any claims under the
Federal securities laws.
13. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
14. Abbreviations. Customary abbreviations may be used in the
name of a Holder 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).
15. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and have directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
16. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Note, by his acceptance thereof, acknowledges and agrees to the
provisions of the Registration Rights Agreement, dated as of July 17, 1998,
among the Company and the parties named on the signature page thereof (the
"Registration Rights Agreement"), including but not limited to the obligations
of the Holders with respect to a registration and the indemnification of the
Company and the Purchasers (as defined therein) to the extent provided therein.
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to: XXXXX
Material Handling Company, 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: Chief Executive Officer.
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint______________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date:____________________
Your Signature:________________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*
________________
* NOTICE: The signature must be guaranteed by an institution which is a
member of one of the following recognized signature guarantee
programs:
(1) The Securities Transfer Agent Medallian Program
(STAMP);
(2) The New York Stock Exchange Medallian Program (MSP);
(3) The Stock Exchange Medallian Program (SEMP).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by
the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, as the
case may be, state the amount you elect to have purchased (if all, write "ALL"):
$______________
Date:__________________________
Your Signature:_________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*
______________
* NOTICE: The signature must be guaranteed by an institution which is a
member of one of the following recognized signature guarantee
programs:
(1) The Securities Transfer Agent Medallian Program
(STAMP);
(2) The New York Stock Exchange Medallian Program (MSP);
(3) The Stock Exchange Medallian Program (SEMP).
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SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES(2)
The following exchanges of a part of this Global Note for
Definitive Notes have been made:
Principal Amount of this
Amount of decrease in Amount of increase in Global Note following
Principal Amount of this Principal Amount of this such decrease (or Signature of autho-
Date of Exchange Global Note Global Note increase) rized officer of Trustee
------------------
(2) This should be included only if the Note is issued in global form.
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EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: [Series C] [Series D] 10 3/4% Senior Notes due November 15, 2006 (the
"Notes") of XXXXX Material Handling Company
This Certificate relates to $______ principal amount of Notes held in *
/ / book-entry or * / / definitive form by _______________________ (the
"Transferor").
The Transferor, by written order, has requested the Trustee:
/ / to deliver in exchange for its beneficial interest in the Global Note
held by the depository, a Note or Notes in definitive, registered form
of authorized denominations and an aggregate principal amount equal to
its beneficial interest in such Global Note (or the portion thereof
indicated above); or
/ / to exchange or register the transfer of a Note or Notes. In connection
with such request and in respect of each such Note, the Transferor does
hereby certify that Transferor is familiar with the Indenture relating
to the above captioned Notes and, the transfer of this Note does not
require registration under the Securities Act of 1933, as amended (the
"Securities Act") because such Note:
/ / is being acquired for the Transferor's own account, without transfer;
/ / is being transferred pursuant to an effective registration statement;
/ / is being transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act), in reliance on such Rule 144A;
/ / is being transferred pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act;**
/ / is being transferred pursuant to Rule 144 under the Securities Act;**
or
/ / is being transferred pursuant to another exemption from the
registration requirements of the Securities Act (explain:________
_________________________________________________________________
_________________________________________________________________).**
[INSERT NAME OF TRANSFEROR]
By:_______________________________
Date:_____________________
* Check applicable box.
** If this box is checked, this certificate must be accompanied
by an opinion of counsel to the effect that such transfer is
in compliance with the Securities Act.
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EXHIBIT C
[FORM OF GUARANTY]
GUARANTY
For good and valuable consideration received from the Company by the
undersigned (hereinafter referred to as the "Guarantor," which term includes any
successor or additional Guarantor), the receipt and sufficiency of which is
hereby acknowledged, subject to Section 10.4 of the Indenture, each Guarantor,
jointly and severally, hereby unconditionally guarantees, irrespective of the
validity or enforceability of the Indenture, the Notes or the Obligations, (a)
the due and punctual payment of the principal and premium, if any, of and
interest on the Notes (including, without limitation, interest after the filing
of a petition initiating any proceedings referred to in Sections 6.1(8) or (9)
of the Indenture), whether at maturity or on an interest payment date, by
acceleration, call for redemption or otherwise, (b) the due and punctual payment
of interest on the overdue principal and premium, if any, of and interest, if
any, on the Notes, if lawful, (c) the due and punctual payment and performance
of all other Obligations, all in accordance with the terms set forth in the
Indenture and the Notes, and (d) in case of any extension of time of payment or
renewal of any Notes or any of such other Obligations, the due and punctual
payment or performance thereof in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.
No director, officer, employee, incorporator, stockholder or
controlling person of the Guarantor, as such, shall have any liability under
this Guaranty for any obligations of the Guarantor under the Notes, the
Indenture or the Registration Rights Agreement or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
the Notes by accepting a Note waives and releases all such liability.
[SUBSIDIARY]
By:_________________
Its:_________________
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100
CROSS-REFERENCE TABLE*
Trust Indenture
Act 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) ..................................... 7.8; 7.10
(c) ..................................... N.A.
311(a) ....................................... 7.11
(b) ..................................... 7.11
(c) ..................................... N.A.
312(a) ....................................... 2.5
(b) ..................................... 11.3
(c) ..................................... 11.3
313(a) ....................................... 7.6
(b)(1) .................................. 7.6
(b)(2) .................................. 7.6
(c) ..................................... 7.6
(d) ..................................... 7.6
314(a) ....................................... 4.3; 4.4
(b) ..................................... N.A
(c)(1) .................................. 11.4
(c)(2) .................................. 11.4
(c)(3) .................................. N.A.
(d) ..................................... N.A.
(e) ..................................... 11.5
(f) ..................................... N.A.
315(a) ....................................... 7.1(2)
(b) ..................................... 7.5
(c) ..................................... 7.1(1)
(d) ..................................... 7.1(3)
(e) ..................................... 6.11
316(a)(last sentence) ........................ 2.9
(a)(1)(A) ............................... 6.5
(a)(1)(B) ............................... 6.4
(a)(2) .................................. N.A.
(b) ..................................... 9.2
(c) ..................................... 9.4
317(a)(1) .................................... 6.8
(a)(2) .................................. 6.9
(b) ..................................... 2.4
318(a) ....................................... 11.1
(b) ..................................... N.A.
(c) ..................................... 11.1
N.A. means not applicable.
101
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.1. Definitions 1
Section 1.2. Other Definitions. 19
Section 1.3. Incorporation by Reference of Trust Indenture Ac 19
Section 1.4. Rules of Construction. 20
ARTICLE 2 THE NOTES 20
Section 2.1. Form and Dating 20
Section 2.2. Execution and Authentication 21
Section 2.3. Registrar, Paying Agent 22
Section 2.4. Paying Agent to Hold Money in Trust 23
Section 2.5. Holder Lists 23
Section 2.6. Transfer and Exchange 23
Section 2.7. Replacement Notes 28
Section 2.8. Outstanding Notes 29
Section 2.9. Treasury Notes 29
Section 2.10. Temporary Notes 29
Section 2.11. Cancellation 30
Section 2.12. Defaulted Interest 31
Section 2.13. Legends 31
ARTICLE 3 REDEMPTION 32
Section 3.1. Notices to Trustee 32
Section 3.2. Selection of Notes to Be Redeemed 32
Section 3.3. Notice of Redemption 33
Section 3.4. Effect of Notice of Redemption. 34
Section 3.5. Deposit of Redemption Price. 34
Section 3.6. Notes Redeemed in Part. 34
Section 3.7. Optional Redemption. 35
ARTICLE 4 COVENANTS 35
Section 4.1. Payment of Notes. 35
Section 4.2. Maintenance of Office or Agency. 36
Section 4.3. Reports. 37
Section 4.4. Compliance Certificate 38
Section 4.5. Taxes. 39
Section 4.6. Stay, Extension and Usury Laws. 39
Section 4.7. Limitation on Restricted Payments. 39
Section 4.8. Limitation on Restrictions on Subsidiary Dividends. 43
Section 4.9. Limitation on Incurrence of Indebtedness 44
Section 4.10. Limitation on Asset Sales. 47
Section 4.11. Limitation on Transactions With Affiliates 50
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103
Section 4.12. Limitation on Liens. 51
Section 4.13. Corporate Existence. 52
Section 4.14. Repurchase Upon a Change of Control. 52
Section 4.15. Maintenance of Properties. 54
Section 4.16. Maintenance of Insurance. 54
Section 4.17. Restrictions on Sale and Issuance of Subsidiary Stock 55
Section 4.18. Line of Business 55
ARTICLE 5 SUCCESSORS 55
Section 5.1. When the Company May Merge, etc. 55
Section 5.2. Successor Substituted. 57
ARTICLE 6 DEFAULTS AND REMEDIES 57
Section 6.1. Events of Default. 57
Section 6.2. Acceleration 59
Section 6.3. Other Remedies 60
Section 6.4. Waiver of Past Defaults 60
Section 6.5. Control by Majority 61
Section 6.6. Limitation on Suits 61
Section 6.7. Rights of Holders to Receive Payment 62
Section 6.8. Collection Suit by Trustee 62
Section 6.9. Trustee May File Proofs of Claim 62
Section 6.10. Priorities 63
Section 6.11. Undertaking for Costs 64
ARTICLE 7 TRUSTEE 64
Section 7.1. Duties of Trustee 64
Section 7.2. Rights of Trustee 65
Section 7.3. Individual Rights of Trustee 66
Section 7.4. Trustee's Disclaimer 66
Section 7.5. Notice of Defaults 67
Section 7.6. Reports by Trustee to Holders 67
Section 7.7. Compensation and Indemnity 67
Section 7.8. Replacement of Trustee 68
Section 7.9. Successor Trustee by Xxxxxx, etc. 70
Section 7.10. Eligibility; Disqualification 70
Section 7.11. Preferential Collection of Claims Against Company 70
ARTICLE 8 DISCHARGE OF INDENTURE 71
Section 8.1. Termination of Company's Obligations 71
Section 8.2. Application of Trust Money. 73
Section 8.3. Repayment to the Company 73
Section 8.4. Reinstatement 73
ARTICLE 9 AMENDMENTS 74
Section 9.1. Without Consent of Holders 74
Section 9.2. With Consent of Holders 75
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104
Section 9.3. Compliance with Trust Indenture Act 76
Section 9.4. Revocation and Effect of Consents 77
Section 9.5. Notation on or Exchange of Notes 77
Section 9.6. Trustee to Sign Amendments, etc. 77
ARTICLE 10 GUARANTY 78
Section 10.1. Guarantors 78
Section 10.2. Guaranty 78
Section 10.3. Execution and Delivery of Guaranty 80
Section 10.4. Limitation on Guarantor's Liability 81
Section 10.5. Rights under the Guaranty 81
Section 10.6. Primary Obligations 82
Section 10.7. Release of Guarantors 82
ARTICLE 11 MISCELLANEOUS 82
Section 11.1. Trust Indenture Act Controls 82
Section 11.2. Notices 82
Section 11.3. Communication by Holders with Other Holders 84
Section 11.4. Certificate and Opinion as to Conditions Precedent 84
Section 11.5. Statements Required in Certificate or Opinion 84
Section 11.6. Rules by Trustee and Agents 85
Section 11.7. Legal Holidays 85
Section 11.8. No Recourse Against Others 85
Section 11.9. Governing Law 86
Section 11.10. No Adverse Interpretation of Other Agreements 86
Section 11.11. Successors 87
Section 11.12. Severability 87
Section 11.13. Counterpart Originals 87
Section 11.14. Table of Contents, Headings, etc. 87
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Page
SIGNATURES
EXHIBIT A - FORM OF NOTE ......................................... A-1
EXHIBIT B - CERTIFICATE OF TRANSFEROR ............................ B-1
EXHIBIT C - FORM OF GUARANTY ..................................... C-1
iv
