EXHIBIT 4.1
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NAVISTAR INTERNATIONAL CORPORATION,
as Issuer
and
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
____________________
INDENTURE
Dated as of February 4, 1998
____________________
$100,000,000
7% Senior Notes due 2003
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CROSS-REFERENCE TABLE
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TIA Indenture
Section Section
------- -------
(S)310(a)(1)......................................... 7.10
(a)(2)......................................... 7.10
(a)(3)......................................... N.A.
(a)(4)......................................... N.A.
(a)(5)......................................... N.A.
(b)............................................ 7.8; 7.10; 10.2
(c)............................................ N.A.
(S)311(a)............................................ 7.11
(b)............................................ 7.11
(c)............................................ N.A.
(S)312(a)............................................ 2.5
(b)............................................ 10.3
(c)............................................ 10.3
(S)313(a)............................................ 7.6
(b)(1)......................................... 7.6
(b)(2)......................................... 7.6
(c)............................................ 7.6; 10.2
(d)............................................ 7.6
(S)314(a)............................................ 4.6; 4.7; 10.2
(b)............................................ N.A.
(c)(1)......................................... 10.4
(d)............................................ N.A.
(e)............................................ 10.5
(f)............................................ N.A.
(S)315(a)............................................ 7.1(b)
(b)............................................ 7.5; 10.2
(c)............................................ 7.1(a)
(d)............................................ 7.1(c)
(e)............................................ 6.11
(S)316(a)............................................ 9.3
(a)(1)(A)...................................... 6.5
(a)(1)(B)...................................... 6.4
(a)(2)......................................... N.A.
(b)............................................ 6.6; 6.7, 9.4
(c)............................................ 9.4
(S)317(a)(1)......................................... 6.8
(a)(2)......................................... 6.9
(b)............................................ 2.4
(S)318(a)............................................ 10.1
(c)............................................ 10.1
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions................................................. 1
SECTION 1.2 Incorporation by Reference of Trust Indenture Act........... 26
SECTION 1.3 Rules of Construction....................................... 27
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating............................................. 28
SECTION 2.2 Execution and Authentication................................ 29
SECTION 2.3 Registrar and Paying Agent.................................. 30
SECTION 2.4 Paying Agent To Hold Money in Trust......................... 31
SECTION 2.5 Securityholder Lists........................................ 31
SECTION 2.6 Transfer and Exchange....................................... 31
SECTION 2.7 Replacement Securities...................................... 41
SECTION 2.8 Temporary Securities........................................ 42
SECTION 2.9 Cancellation................................................ 42
SECTION 2.10 Defaulted Interest.......................................... 43
SECTION 2.11 CUSIP or CINS Number........................................ 44
SECTION 2.12 Payments of Interest........................................ 44
ARTICLE III
[RESERVED]
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities....................................... 45
SECTION 4.2 Maintenance of Office or Agency............................. 45
SECTION 4.3 Corporate Existence......................................... 46
SECTION 4.4 Payment of Taxes and Other Claims........................... 46
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SECTION 4.5 Maintenance of Properties; Insurance; Books and Records;
Compliance with Law...................................... 47
SECTION 4.6 Compliance Certificates.................................... 47
SECTION 4.7 Reports.................................................... 48
SECTION 4.8 Application of Fall Away Covenants......................... 49
SECTION 4.9 Limitation on Incurrence of Indebtedness................... 49
SECTION 4.10 Waiver of Stay, Extension or Usury Laws.................... 52
SECTION 4.11 Change of Control.......................................... 52
SECTION 4.12 Limitation on Transactions with Affiliates................. 54
SECTION 4.13 Limitation on Liens........................................ 55
SECTION 4.14 Limitation on Payment Restrictions Affecting Restricted
Subsidiaries............................................. 56
SECTION 4.15 Limitation on Guarantees by Restricted Subsidiaries........ 57
SECTION 4.16 [Reserved]................................................. 58
SECTION 4.17 Limitation on Preferred Stock of Restricted Subsidiaries... 58
SECTION 4.18 Limitation on Restricted Payments.......................... 58
SECTION 4.19 Limitation on Certain Asset Dispositions................... 61
SECTION 4.20 Limitation on Sale/Leaseback Transactions.................. 63
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 Merger, Consolidation, Etc................................. 64
SECTION 5.2 Successor Entity Substituted............................... 65
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default.......................................... 66
SECTION 6.2 Acceleration............................................... 68
SECTION 6.3 Other Remedies............................................. 68
SECTION 6.4 Waiver of Past Default..................................... 69
SECTION 6.5 Control by Majority........................................ 69
SECTION 6.6 Limitation on Suits........................................ 69
SECTION 6.7 Rights of Holders To Receive Payment....................... 70
SECTION 6.8 Collection Suit by Trustee................................. 70
SECTION 6.9 Trustee May File Proofs of Claim........................... 70
SECTION 6.10 Priorities................................................. 71
SECTION 6.11 Undertaking for Costs...................................... 71
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SECTION 6.12 Rights and Remedies Cumulative............................. 72
SECTION 6.13 Delay or Omission Not Waiver............................... 72
SECTION 6.14 Restoration of Rights and Remedies......................... 72
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee.......................................... 72
SECTION 7.2 Rights of Trustee.......................................... 74
SECTION 7.3 Individual Rights of Trustee............................... 75
SECTION 7.4 Trustee's Disclaimer....................................... 75
SECTION 7.5 Notice of Defaults......................................... 75
SECTION 7.6 Reports by Trustee to Holders.............................. 76
SECTION 7.7 Compensation and Indemnity................................. 76
SECTION 7.8 Replacement of Trustee..................................... 77
SECTION 7.9 Successor Trustee by Merger, Etc........................... 78
SECTION 7.10 Eligibility; Disqualification.............................. 78
SECTION 7.11 Preferential Collection of Claims Against Company.......... 79
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.1 Termination of the Company's Obligations................... 79
SECTION 8.2 Legal Defeasance and Covenant Defeasance................... 80
SECTION 8.3 Application of Trust Money................................. 84
SECTION 8.4 Repayment to Company or Subsidiary Guarantors.............. 85
SECTION 8.5 Reinstatement.............................................. 85
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders................................. 86
SECTION 9.2 With Consent of Holders.................................... 86
SECTION 9.3 Compliance with Trust Indenture Act........................ 88
SECTION 9.4 Revocation and Effect of Consents.......................... 88
SECTION 9.5 Notation on or Exchange of Securities...................... 89
SECTION 9.6 Trustee To Sign Amendments, Etc............................ 89
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ARTICLE X
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act Controls.............................. 89
SECTION 10.2 Notices................................................... 90
SECTION 10.3 Communications by Holders with Other Holders.............. 91
SECTION 10.4 Certificate and Opinion of Counsel as to Conditions
Precedent............................................... 91
SECTION 10.5 Statements Required in Certificate and Opinion of Counsel. 91
SECTION 10.6 Rules by Trustee, Paying Agent, Registrar................. 92
SECTION 10.7 Legal Holidays............................................ 92
SECTION 10.8 Governing Law............................................. 92
SECTION 10.9 No Recourse Against Others................................ 92
SECTION 10.10 Successors................................................ 93
SECTION 10.11 Counterparts.............................................. 93
SECTION 10.12 Severability.............................................. 93
SECTION 10.13 Table of Contents, Headings, Etc.......................... 93
SECTION 10.14 No Adverse Interpretation of Other Agreements............. 93
SECTION 10.15 Benefits of Indenture..................................... 93
SECTION 10.16 Independence of Covenants................................. 94
ARTICLE XI
GUARANTEE OF SECURITIES
SECTION 11.1 Subsidiary Guarantee...................................... 1
SECTION 11.2 Execution and Delivery of Subsidiary Guarantee............ 3
SECTION 11.3 Additional Subsidiary Guarantors.......................... 3
SECTION 11.4 Release of a Subsidiary Guarantor......................... 4
SECTION 11.5 Waiver of Subrogation..................................... 4
SECTION 11.6 Agreement to Subordinate.................................. 5
SECTION 11.7 Subrogation............................................... 8
SECTION 11.8 Relative Rights........................................... 8
SECTION 11.9 Trustee to Effectuate Subordination....................... 9
SECTION 11.10 Trustee Not Fiduciary for Holders of Guarantor Senior
Indebtedness............................................ 9
SECTION 11.11 Notice By Subsidiary Guarantor............................ 9
SECTION 11.12 Rights of Trustee......................................... 10
SECTION 11.13 Subsidiary Guarantor May Not Impair Subordination......... 10
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SECTION 11.14 Rights of Paying Agent................................... 10
SIGNATURES.............................................................. S-1
EXHIBIT A - Form of Security
EXHIBIT B - Terms of Subsidiary Guarantee
EXHIBIT C - Form of Subsidiary Guarantee
EXHIBIT D - Form of Certificate of Transfer
EXHIBIT E - Form of Certificate of Exchange
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INDENTURE dated as of February 4, 1998, between NAVISTAR INTERNATIONAL
CORPORATION, a Delaware corporation, as Issuer (the "Company"), and XXXXXX TRUST
AND SAVINGS BANK, an Illinois banking corporation, as Trustee (the "Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the 7% Senior Notes due February 1,
2003 of the Company (the "Securities") to be issued as provided for in this
Indenture. All things necessary to make the Securities, when duly issued and
executed by the Company and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid, binding
agreement of the Company, in accordance with their respective terms, have been
done.
The parties hereto agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Acquired Indebtedness" of any specified Person means Indebtedness of
any other Person and its Restricted Subsidiaries existing at the time such other
Person merged with or into or became a Restricted Subsidiary of such specified
Person or assumed by the specified Person in connection with the acquisition of
assets from such other Person and not incurred by the specified Person in
connection with or in anticipation of (a) such other Person and its Restricted
Subsidiaries being merged with or into or becoming a Restricted Subsidiary of
such specified Person or (b) such acquisition by the specified Person.
"Additional Interest" shall have the meaning set forth in the
Registration Rights Agreement.
"Affiliate" means, when used with reference to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, the referent Person, as the case may be. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct or cause the direction of management or
policies of the referent Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative of the foregoing.
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"Agent" means any Registrar, Paying Agent or co-registrar. See
Section 2.3.
"Applicable Procedures" means with respect to any transfer or exchange
of interests in a Global Security, the rules and procedures of DTC, Euroclear or
Cedel that apply to such transfer or exchange.
"Asset Disposition" means any sale, transfer or other disposition
(including, without limitation, by merger, consolidation or sale-and-leaseback
transaction) of (i) shares of Capital Stock of a Restricted Subsidiary of the
Company (other than directors' qualifying shares) or (ii) property or assets of
the Company or any of its Restricted Subsidiaries; provided, that an Asset
Disposition shall not include (a) any sale, transfer or other disposition of
shares of Capital Stock, property or assets by a Restricted Subsidiary of the
Company to the Company or to any Restricted Subsidiary of the Company, (b) any
sale, transfer or other disposition of defaulted receivables for collection or
any sale, transfer or other disposition of property or assets in the ordinary
course of business, (c) any isolated sale, transfer or other disposition that
does not (together with all related sales, transfers or dispositions) involve
aggregate consideration in excess of $5.0 million, (d) the grant in the ordinary
course of business of any license of patents, trademarks, registrations therefor
and other similar intellectual property, (e) the granting of any Lien (or
foreclosure thereon) securing Indebtedness to the extent that such Lien is
granted in compliance with Section 4.13, (f) any sale, transfer or other
disposition constituting a Permitted Investment or Restricted Payment permitted
by Section 4.18, (g) any disposition of assets or property in the ordinary
course of business to the extent such property or assets are obsolete, worn-out
or no longer useful in the Company's or any of its Subsidiaries' business, (h)
the sale, lease, conveyance or disposition or other transfer of all or
substantially all of the assets of the Company as permitted under Article V, (i)
sales of accounts receivable, equipment and related assets (including contract
rights) of the type specified in the definition of "Qualified Securitization
Transaction" to a Securitization Subsidiary for the fair market value thereof,
including cash in an amount at least equal to 90% of the fair market value
thereof as determined in accordance with GAAP, and (j) transfers of accounts
receivable, equipment and related assets (including contract rights) of the type
specified in the definition of "Qualified Securitization Transaction" (or a
fractional undivided interest therein) by a Securitization Subsidiary in a
Qualified Securitization Transaction.
"Asset Sale Offer Trigger Date" has the meaning set forth in Section
4.19.
An "Associate" of, or a Person "associated" with, any Person means (i)
any trust or other estate in which such Person has a substantial beneficial
interest or as to which such Person serves as trustee or in a similar fiduciary
capacity and (ii) any relative or
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spouse of such Person, or any relative of such spouse, who has the same home as
such Person.
"Attributable Indebtedness" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Senior Notes with respect to the Senior Note
Indenture and at the interest rate borne by the Senior Subordinated Notes with
respect to the Senior Subordinated Note Indenture, compounded annually) of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with respect to
any Indebtedness for borrowed money or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the number of years from the date of
determination to the dates of each successive scheduled principal or liquidation
value payments of such Indebtedness or Preferred Stock, respectively, and the
amount of such principal or liquidation value payments, by (ii) the sum of all
such principal or liquidation value payments.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar
Federal or state law for the relief, reorganization, adjustment or recomposition
of debtors.
"Board of Directors" means with respect to any Person, the Board of
Directors of such Person or any committee of such Board of Directors authorized
to act for it hereunder.
"Business Day" means any day except a Saturday, a Sunday or any day on
which banking institutions in either New York City, New York or Chicago,
Illinois are required or authorized by law or other governmental action to be
closed.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however designated
and whether voting or non-voting) of, such Person's capital stock, including
each class of Common or Preferred Stock of such Person, whether outstanding on
the Issue Date or issued after the Issue Date, and any and all rights, warrants
or options exchangeable for or convertible into such capital stock.
"Capitalized Lease Obligation" means obligations under a lease that
are required to be classified and accounted for as capital lease obligations
under GAAP and, for purposes of this Indenture, the amount of such obligations
at any date shall be the capitalized amount of such obligations at such date,
determined in accordance with GAAP. The Stated Maturity of such obligation
shall be the date of the last payment of rent or any other
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amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without penalty.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means the occurrence of one or more of the
following events: (i) any "person" or "group" (as such terms are used in Section
13(d) and 14(d) of the Exchange Act), other than employee or retiree benefit
plans or trusts sponsored or established by the Company or Transportation, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 35% or
more of the combined voting power of the Company's then outstanding Voting
Stock; (ii) the following individuals cease for any reason to constitute more
than two-thirds of the number of directors then serving on the Board of
Directors of the Company: individuals who, on the Issue Date, constitute the
Board of Directors and any new director (other than a director whose initial
assumption of the office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or election by the Board
of Directors or nomination for election by the Company's stockholders was
approved (A) by the vote of at least a majority of the directors then still in
office or whose appointment, election or nomination was previously so approved
or recommended or (B) with respect to directors whose appointment of election to
the Board of Directors was made by the holders of the Company's nonconvertible
junior preference stock, series A and nonconvertible junior preference stock,
series B, by the holders of such preference stock; (iii) the shareholders of the
Company shall approve any Plan of Liquidation (whether or not otherwise in
compliance with the provisions of this Indenture); or (iv) the Company
consolidates with or merges with or into another Person, other than a merger or
consolidation of the Company in which the holders of the Common Stock of the
Company outstanding immediately prior to the consolidation or merger hold,
directly or indirectly, at least a majority of the Common Stock of the surviving
corporation immediately after such consolidation or merger; (v) the Company or
any Restricted Subsidiary of the Company, directly or indirectly, sells,
assigns, conveys, transfers, leases or otherwise disposes of, in one transaction
or a series of related transactions, all or substantially all of the property or
assets of the Company and the Restricted Subsidiaries of the Company (determined
on a consolidated basis) to any Person (other than a Permitted Joint Venture in
a transaction entered into in compliance with Section 4.18); provided, that
neither (x) the merger of a Restricted Subsidiary of the Company into the
Company or into any Restricted Subsidiary of the Company nor (y) a series of
transactions involving the sale of Receivables or interests therein in the
ordinary course of business by a Securitization Subsidiary in connection with a
Qualified Securitization Transaction, shall be deemed to be a Change of Control.
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For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
"Change of Control Date" has the meaning provided in Section 4.11.
"Change of Control Offer" has the meaning provided in Section 4.11.
"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 instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and,
thereafter, means the successor.
"Consolidated Cash Flow Available For Fixed Charges" of any Person
means for any period the Consolidated Net Income of such Person for such period
increased (to the extent Consolidated Net Income for such period has been
reduced thereby) by the sum of (without duplication) (i) Consolidated Interest
Expense of such Person for such period, plus (ii) Consolidated Tax Expense of
such Person for such period, plus (iii) the consolidated depreciation and
amortization expense included in the income statement of such Person prepared in
accordance with GAAP for such period, plus (iv) any other non-cash charges to
the extent deducted from or reflected in Consolidated Net Income except for any
non-cash charges that represent accruals of, or reserves for, cash disbursements
to be made in any future accounting period, minus (1) any non-cash items
increasing Consolidated Net Income for such period and (2) all cash payments
during such period relating to non-cash charges that were added back in
determining Consolidated Cash Flow Available For Fixed Charges in any prior
period.
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"Consolidated Cash Flow Ratio" of any Person means for any period the
ratio of (i) Consolidated Cash Flow Available for Fixed Charges of such Person
for such period to (ii) Consolidated Fixed Charges for such period; provided,
however, that all incurrences and repayments of Indebtedness (including the
incurrence giving rise to such calculation and any repayments in connection
therewith) and all dispositions (including discontinued operations) or
acquisition of assets (other than in the ordinary course of business) made
during or after such period and on or prior to the date of determination shall
be given pro forma effect as if they occurred on the first day of such four-
quarter period. Calculations of pro forma amounts in accordance with this
definition shall be done in accordance with Article 11 of Regulation S-X under
the Securities Act or any successor provision.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum of, without duplication, the amounts for such period, taken as a
single accounting period, of (i) Consolidated Interest Expense; and (ii) the
product of (x) the amount of all dividend requirements (whether or not declared)
on Preferred Stock of such Person, whether in cash or otherwise (except
dividends payable in shares of Qualified Capital Stock) paid, accrued or
scheduled to be paid or accrued during such period times (y) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current effective consolidated Federal, state, local and foreign tax rate
(expressed as a decimal number between 1 and 0) of such Person (as reflected in
the audited consolidated financial statements of such Person for the most
recently completed fiscal year). In calculating "Consolidated Fixed Charges" for
purposes of determining the denominator (but not the numerator) of this
"Consolidated Fixed Charge Coverage Ratio," (1) interest on Indebtedness
determined on a fluctuating basis as of the date of determination and which will
continue to be so determined thereafter shall be deemed to have accrued at a
fixed rate per annum equal to the rate of interest on such Indebtedness in
effect on the date of determination; (2) if interest on any Indebtedness
actually incurred on the date of determination may be optionally determined at
an interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate or other rates, then the interest rate in effect on the
date of determination will be deemed to have been in effect during the relevant
four-quarter period reference; and (3) notwithstanding the foregoing, interest
on Indebtedness determined on a fluctuating basis, to the extent such interest
is covered by agreements relating to interest swap agreements, shall be deemed
to accrue at the rate per annum resulting after giving effect to the operation
of such agreements.
"Consolidated Interest Expense" means, with respect to any Person for
any period, the aggregate of the interest expense (without deduction of interest
income) of such Person and its Consolidated Subsidiaries for such period, on a
consolidated basis, as determined in accordance with GAAP, including (a) all
amortization of original issue discount; (b) the interest component of
Capitalized Lease Obligations paid, accrued and/or scheduled
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to be paid or accrued by such Person during such period; (c) net cash costs
under all Interest Rate Protection Agreements (including amortization of fees);
(d) all capitalized interest; and (e) the interest portion of any deferred
payment obligations for such period.
"Consolidated Net Income" means, with respect to any Person for any
period, the consolidated net income (or deficit) of such Person and its
Consolidated Subsidiaries for such period, on a consolidated basis, as
determined in accordance with GAAP, provided that the net income of any other
Person (other than Restricted Subsidiaries) shall be included only to the extent
of the amount that has been actually received by the referent Person or a
Restricted Subsidiary of the referent Person in the form of cash dividends or
other cash distributions (other than payments in respect of debt obligations),
and provided, further, that there shall be excluded (i) the net income of any
Person acquired in a "pooling of interests" transaction accrued prior to the
date it became a Restricted Subsidiary of the referent Person or is merged into
or consolidated with the referent Person or any Restricted Subsidiary of the
referent Person; (ii) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date; (iii) any
gain or loss, together with any related provisions for taxes, realized upon the
sale or other disposition (including, without limitation, dispositions pursuant
to sale-leaseback transactions) of any property or assets which are not sold or
otherwise disposed of in the ordinary course of business (provided that sales of
Receivables or interests therein pursuant to Qualified Securitization
Transactions shall be deemed to be in the ordinary course of business) and upon
the sale or other disposition of any Capital Stock of any Subsidiary of the
referent Person; (iv) any extraordinary gain or extraordinary loss together with
any related provision for taxes and any one time gains or losses (including,
without limitation, those related to the adoption of new accounting standards)
realized by the referent Person or any of its Restricted Subsidiaries during the
period for which such determination is made; (v) income or loss attributable to
discontinued operations (including, without limitation, operations disposed of
during such period whether or not such operations were classified as
discontinued); (vi) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's assets, any
earnings of the successor corporation prior to such consolidation, merger or
transfer of assets; and (vii) the net income of any Restricted Subsidiary of
such Person which is subject to restrictions which prevent or limit the payment
of dividends or the making of distributions to such Person to the extent of such
restrictions (regardless of any waiver thereof).
"Consolidated Stockholders' Equity" as of any date means with respect
to any Person the amount, determined in accordance with GAAP, by which the
assets of such Person and of its Restricted Subsidiaries on a consolidated basis
exceed the sum of (a) the
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total liabilities of such Person and of its Restricted Subsidiaries on a
consolidated basis, plus (b) any redeemable Preferred Stock of such Person.
"Consolidated Subsidiary" of any Person means a Restricted Subsidiary
which for financial reporting purposes is or, in accordance with GAAP, should
be, accounted for by such Person as a consolidated Subsidiary.
"Consolidated Tax Expense" means, with respect to any Person for any
period, the aggregate of the U.S. Federal, state and local tax expense
attributable to taxes based on income and foreign income tax expenses of such
Person and its Consolidated Subsidiaries for such period (net of any income tax
benefit) determined in accordance with GAAP other than taxes (either positive or
negative) attributable to extraordinary or unusual gains or losses or taxes
attributable to sales or dispositions of assets.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any of its Restricted Subsidiaries against fluctuations in currency
values to or under which the Company or any of its Restricted Subsidiaries is a
party or a beneficiary on the date of this Indenture or becomes a party or a
beneficiary thereafter.
"Custodian" has the meaning provided in Section 6.1(b).
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.10.
"Disqualified Capital Stock" means any Capital Stock that, other than
solely at the option of the issuer thereof, by its terms (or by the terms of any
security into which it is convertible or exchangeable) is, or upon the happening
of an event or the passage of time would be, required to be redeemed or
repurchased, in whole or in part, prior to the first anniversary of the Maturity
Date or has, or upon the happening of an event or the passage of time would
have, a redemption or similar payment due on or prior to the first anniversary
of the Maturity Date, or is convertible into or exchangeable for debt securities
at the option of the holder thereof at any time prior to the first anniversary
of the Maturity Date.
"DTC" means The Depository Trust Company or its successors.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York (Brussels
Office) as operator of the Euroclear system.
"Event of Default" has the meaning provided in Section 6.1(a).
-9-
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Registration Statement" shall have the meaning set forth in
the Registration Rights Agreement.
"Exchange Securities" has the meaning given such term in the
Registration Rights Agreement.
"Exchange Senior Subordinated Notes" means the securities issuable by
the Company in exchange for the Senior Subordinated Notes pursuant to the Senior
Subordinated Note Registration Rights Agreement.
"Fiscal Quarter" means any quarter in any Fiscal Year, the duration of
such quarter being defined in accordance with GAAP.
"Fiscal Year" means a fiscal year of the Company and its Subsidiaries.
On the date of this Indenture the fiscal year of the Company and its
Subsidiaries ends October 31 of each year.
"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 may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Issue Date.
"Global Security" means the global security, without coupons,
representing all or a portion of the Securities deposited with DTC substantially
in the form of Exhibit A attached hereto.
"guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by
agreement to keepwell, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term "guarantee" shall
not include endorsements for collection or
-10-
deposit in the ordinary course of business. The term "guarantee" used as a verb
has a corresponding meaning.
"Guarantor Senior Indebtedness" means any guarantee incurred by a
Subsidiary Guarantor of Senior Indebtedness (including, without limitation, the
Senior Notes) of the Company incurred in accordance with this Indenture, whether
such Indebtedness is outstanding on the Issue Date or thereafter; provided that
Guarantor Senior Indebtedness expressly shall not include: (i) any Indebtedness
of such Subsidiary Guarantor whether outstanding on the Issue Date or thereafter
incurred that is, pursuant to its terms or the terms of any agreement relating
thereto, subordinated or junior to any other Indebtedness of such Subsidiary
Guarantor, (ii) any Indebtedness of such Subsidiary Guarantor whether
outstanding on the Issue Date or thereafter incurred that is, by its terms or
the terms of any agreement relating thereto, pari passu with or subordinated or
junior to such Subsidiary Guarantor's Subsidiary Guarantee; (iii) the Subsidiary
Guarantee of such Subsidiary Guarantor; (iv) any Indebtedness or any other
obligation of such Subsidiary Guarantor to any of such Subsidiary Guarantor's
Subsidiaries or to any of such Subsidiary Guarantor's Affiliates, or to any
joint venture in which such Subsidiary Guarantor has an interest; (v) to the
extent such may be deemed Indebtedness of such Subsidiary Guarantor, any
liability for Federal, state, local, foreign or other taxes owed or owing by
such Subsidiary Guarantor or by any of its Restricted Subsidiaries (including
pursuant to the Tax Allocation Agreement); (vi) to the extent such may be deemed
Indebtedness of such Subsidiary Guarantor, obligations of such Subsidiary
Guarantor incurred in connection with the purchase of goods, assets, materials
or services in the ordinary course of business or representing amounts recorded
as accounts payable, trade payables or other current liabilities of such
Subsidiary Guarantor on the books of such Subsidiary Guarantor (other than the
current portion of any long-term Indebtedness of such Subsidiary Guarantor that
but for this clause (vi) would constitute Guarantor Senior Indebtedness of such
Subsidiary Guarantor); (vii) to the extent such may be deemed Indebtedness of
such Subsidiary Guarantor, any amount owed by such Subsidiary Guarantor to
employees for services rendered to such Subsidiary Guarantor or to any of its
Restricted Subsidiaries; and (viii) that portion of any Indebtedness which at
the time of incurrence was incurred in violation of the Senior Subordinated Note
Indenture.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise, of
any such Indebtedness or other obligation on the balance sheet of such Person
(and "incurrence," "incurred," "incurrable" and "incurring" shall have meanings
correlative to the foregoing), provided that the accrual
-11-
of interest (whether such interest is payable in cash or in kind) and the
accretion of original issue discount shall not be deemed an incurrence of
Indebtedness, provided, further, that (A) any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes (after the Issue Date) a
Restricted Subsidiary (whether by merger, consolidation, acquisition or
otherwise) of the Company shall be deemed to be incurred or issued, as the case
may be, by such Restricted Subsidiary at the time it becomes a Restricted
Subsidiary of the Company and (B) any amendment, modification or waiver of any
document pursuant to which Indebtedness was previously incurred shall not be
deemed to be an incurrence of Indebtedness unless and then only to the extent
such amendment, modification or waiver increases the principal or premium
thereof or interest rate thereon (including by way of original issue discount).
"Indebtedness" means, with respect to any Person, at any date, any of
the following, without duplication, (i) any liability, contingent or otherwise,
of such Person (A) for 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 a note, bond, debenture or similar instrument or letters of credit
(including a purchase money obligation) or (C) for the payment of money relating
to a Capitalized Lease Obligation or other obligation (whether issued or
assumed) relating to the deferred purchase price of property, but excluding
trade accounts payable of such Person arising in the ordinary course of
business; (ii) all conditional sale obligations and all obligations under any
title retention agreement (even if the rights and remedies of the seller under
such agreement in the event of default are limited to repossession or sale of
such property), but excluding trade accounts payable of such Person arising in
the ordinary course of business; (iii) all obligations for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar credit
transaction entered into in the ordinary course of business; (iv) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien
(other than in connection with property subject to a Qualified Securitization
Transaction) on any asset or property (including, without limitation, leasehold
interests and any other tangible or intangible property) of such Person, whether
or not such Indebtedness is assumed by such Person or is not otherwise such
Person's legal liability; provided, that if the obligations so secured have not
been assumed by such Person or are otherwise not such Person's legal liability,
the amount of such Indebtedness for the purposes of this definition shall be
limited to the lesser of the amount of such Indebtedness secured by such Lien or
the fair market value of the assets or property securing such Lien; (v) all
Indebtedness of others (including all dividends of other Persons the payment of
which is) guaranteed, directly or indirectly, by such Person or that is
otherwise its legal liability or which such Person has agreed to purchase or
repurchase or in respect of which such Person has agreed continently to supply
or advance funds; (vi) all Disqualified Capital Stock issued by such Person with
the amount of Indebtedness represented by such Disqualified Capital Stock be-
-12-
ing equal to the greater of its voluntary or involuntary liquidation preference
and its maximum fixed repurchase price, but excluding accrued dividends if any;
(vii) all obligations under Currency Agreements and Interest Rate Protection
Agreements and (viii) all Attributable Indebtedness in respect of Sale/Leaseback
Transactions entered into by such person. For purposes hereof, the "maximum
fixed repurchase price" of any Disqualified Capital Stock which does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant to
the Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value shall he
determined reasonably and in good faith by the Board of Directors of the issuer
of such Disqualified Capital Stock. The amount of Indebtedness of any Person at
any date shall be the outstanding balance without duplication 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, provided that the amount outstanding at any
time of any Indebtedness issued with original issue discount is the full amount
of such Indebtedness less the remaining unamortized portion of the original
issue discount of such Indebtedness at such time as determined in accordance
with GAAP.
"Indenture" means this Indenture as amended or supplemented from time
to time pursuant to the terms hereof.
"Initial Global Securities" means the Regulation S Global Security and
the 144A Global Security, each of which contains a Securities Act Legend.
"Initial Securities" means the Securities containing a Securities Act
Legend.
"interest," when used with respect to any Security, means the amount
of all interest accruing on such Security, including all interest accruing
subsequent to the occurrence of any events specified in Sections 6.1(a)(vii) and
(viii) or which would have accrued but for any such event.
"Interest Payment Date," when used with respect to any Security, means
the stated maturity of an installment of interest specified in such Security.
"Interest Rate," when used with respect to any Security, means the
rate per annum specified in such Security as the rate of interest accruing on
the principal amount of such Security.
"Interest Rate Protection Agreement" means any interest rate
protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap
-13-
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedge agreement or other similar agreement or arrangement designed to
protect a Person or any Restricted Subsidiary against fluctuations in interest
rates to or under which such Person or any Restricted Subsidiary of such Person
is a party or a beneficiary on the Issue Date or becomes a party or a
beneficiary thereafter.
"Investment" by any Person means any direct or indirect (i) loan,
advance or other extension of credit (other than a guarantee) or capital
contribution (by means of transfers of cash or other property (valued at the
fair market value thereof as of the date of transfer) to others or payments for
property or services for the account or use of others, or otherwise other than
in the ordinary course of business); (ii) purchase or acquisition of Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by any other Person (whether by merger, consolidation, amalgamation or
otherwise and whether or not purchased directly from the issuer of such
securities or evidences of Indebtedness); (iii) assumption of the Indebtedness
of any other Person; and (iv) all other items that would be classified as
investments (including, without limitation, purchases of assets outside the
ordinary course of business) on a balance sheet of such Person prepared in
accordance with GAAP. Investments shall exclude (a) transactions between the
Navistar Financial Corporation and Navistar International Transportation Corp.
pursuant to the Master Intercompany Agreement and (b) extensions of loans, trade
credit and advances to customers and suppliers to the extent made in the
ordinary course of business.
For purposes of the definition of "Unrestricted Subsidiary" and
Section 4.18," (i) "Investment" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value of the
net assets of any Subsidiary of the Company at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided, that if such designation is
made in connection with the acquisition of such Subsidiary or the assets owned
by such Subsidiary, the "Investment" in such Subsidiary shall be deemed to be
the consideration paid in connection with such acquisition; provided, further,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the
Company shall be deemed to continue to have a permanent "Investment" in an
Unrestricted Subsidiary in an amount (if positive) equal to (x) the Company's
"Investment" in such Subsidiary at the time of such redesignation less (y) the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the fair market value of the net assets of such Subsidiary at the time of such
redesignation and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of Directors.
"Investment Grade" means (i) with respect to S&P any of the rating
categories from and including AAA to and including BBB-and (ii) with respect to
Moody's any of the rating categories from and including Aaa to and including
Baa3.
-14-
"Issue Date" means the date on which the Securities are originally
issued under this Indenture.
"Legal Holiday" means any day other than a Business Day.
"Lien" means, with respect to any Person, any mortgage, pledge, lien,
encumbrance, easement, restriction, covenant, right-of-way, charge or adverse
claim affecting title or resulting in an encumbrance against real or personal
property of such Person, or a security interest of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option, right of first refusal or other similar agreement to sell,
in each case securing obligations of such Person and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statute or statutes) of any jurisdiction but excluding any such filing or
agreement which reflects ownership by a third party of (i) property leased to
the referent Person or any of its Restricted Subsidiaries under a lease that is
not in the nature of a conditional sale or title retention agreement or (ii)
accounts, general intangibles or chattel paper sold to the referent Person).
"Master Intercompany Agreement" means the Master Intercompany
Agreement dated as of April 26, 1993 and as amended on September 30, 1996,
between Navistar Financial Corporation and Transportation as it may be amended,
modified, supplemented or restated from time to time in accordance with the
terms of this Indenture.
"Material Subsidiary" means, at any date of determination, any
Subsidiary of the Company that, together with its Subsidiaries, (i) for the most
recent Fiscal Year of the Company accounted for more than 5% of the consolidated
revenues of the Company or (ii) as of the end of such Fiscal Year, was the owner
of more than 5% of the consolidated assets of the Company, all as set forth on
the most recently available consolidated financial statements of the Company and
its Consolidated Subsidiaries for such Fiscal Year prepared in conformity with
GAAP.
"Maturity Date" means February 1, 2003.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Available Proceeds" from any Asset Disposition by any Person
means cash or readily marketable cash equivalents received (including by way of
sale or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquirer of Indebtedness or other obligations relating to such properties or
assets or received in any other non-cash form) therefrom by such Person,
including any cash received by way of deferred payment or upon the moneti-
-15-
zation or other disposition of any non-cash consideration (including notes or
other securities) received in connection with such Asset Disposition, net of (i)
all legal, title and recording tax expenses, commissions and other fees and
expenses incurred (including, without limitation, fees and expenses of
accountants, brokers, printers and other similar entities) and all federal,
state, foreign and local taxes required to be accrued as a liability as a
consequence of such Asset Disposition, (ii) all payments made by such Person or
its Restricted Subsidiaries on any Indebtedness which is secured by such assets
in accordance with the terms of any Lien upon or with respect to such assets or
which must by the terms of such Lien, or in order to obtain a necessary consent
to such Asset Disposition or by applicable law, be repaid out of the proceeds
from such Asset Disposition, (iii) all payments made with respect to liabilities
associated with the assets which are the subject of the Asset Disposition,
including, without limitation, trade payables and other accrued liabilities,
(iv) appropriate amounts to be provided by such Person or any Restricted
Subsidiary thereof, as the case may be, as a reserve in accordance with GAAP
against any liabilities associated with such assets and retained by such Person
or any Restricted Subsidiary thereof, as the case may be, after such Asset
Disposition, including, without limitation, liabilities under any
indemnification obligations and severance and other employee termination costs
associated with such Asset Disposition, until such time as such amounts are no
longer reserved or such reserve is no longer necessary (at which time any
remaining amounts will become Net Available Proceeds to be allocated in
accordance with the provisions of clause (iii) of Section 4.19) and (v) all
distributions and other payments, made to minority interest holders, if any, in
Restricted Subsidiaries of such Person or joint ventures as a result of such
Asset Disposition.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at its address
appearing in the register for the Securities on the date of the Offer, offering
to purchase up to the principal amount Securities in such Offer at the purchase
price specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase which shall be not less than 30
days nor more than 60 days after the date of such Offer and a settlement date
(the "Purchase Date") for purchase of such Securities within five Business Days
after the Expiration Date. The Company shall notify the Trustee at least 15
Business Days (or such shorter period as is acceptable to the Trustee) prior to
the mailing of the Offer of the Company's obligation to make an Offer to
Purchase, and the Offer shall be mailed by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. The Offer
shall contain all the information required by applicable law to be included
therein. The Offer shall contain all instructions and materials necessary to
enable such Holders to tender such Notes pursuant to the Offer to Purchase. The
Offer shall also state:
-16-
(i) the Section of the Indenture pursuant to which the Offer to
Purchase is being made;
(ii) the Expiration Date and the Purchase Date;
(iii) the aggregate principal amount of the outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section of the Indenture requiring the Offer to
Purchase) (the "Purchase Amount");
(iv) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(v) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Securities
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(vi) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(vii) that interest on any Securities not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(viii) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and after
the Purchase Date;
(ix) that each Holder electing to tender all or any portion of a
Security pursuant to the Offer to Purchase will be required to surrender
such Note at the place or places specified in the Offer prior to the close
of business on the Expiration Date (such Security being, if the Company or
the Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by the Holder thereof or his attorney duly authorized in
writing);
(x) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the fifth Business Day next preceding
the Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Security
the Holder tendered, the certificate number of the
-17-
Security the Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(xi) that (a) if Securities in an aggregate principal amount less
than or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities in an aggregate principal amount in excess
of the Purchase Amount are tendered and not withdrawn pursuant to the Offer
to Purchase, the Company shall purchase Securities having an aggregate
principal amount equal to the Purchase Amount on a pro rata basis (with
such adjustments as may be deemed appropriate so that only Securities in
denominations of $1,000 or integral multiples thereof shall be purchased);
and
(xii) that in the case of any Holder whose Security is purchased only
in part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in all aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security or Securities so tendered.
An Offer to Purchase shall be governed by and effected in accordance
with the provisions above pertaining to any Offer.
"Officer" means the Chairman, the President, any Vice President, the
Chief Financial Officer, the Treasurer, the Secretary or the Controller of the
Company.
"Officers' Certificate" means a certificate signed by two Officers or by
an Officer and an Assistant Treasurer or Assistant Secretary of the Company and
otherwise complying with the requirements of Section 10.4 and Section 10.5 as
they relate to the making of an Officers' Certificate.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee, which may include counsel to the Company
complying with the requirements of Section 10.4 and Section 10.5 as they relate
to the giving of an Opinion of Counsel.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Investments" means (i) Investments in marketable, direct
obligations issued or guaranteed by the United States of America, or any
governmental entity or
-18-
agency or political subdivision thereof (provided, that the good faith and
credit of the United States of America is pledged in support thereof), maturing
within one year of the date of purchase; (ii) Investments in commercial paper
issued by corporations or financial institutions maturing within 180 days from
the date of the original issue thereof, and rated "P-1" or better by Moody's or
"A-1" or better by S&P or an equivalent rating or better by any other nationally
recognized securities rating agency; (iii) Investments in certificates of
deposit issued or acceptances accepted by or guaranteed by any bank or trust
company organized under the laws of the United States of America or any state
thereof or the District of Columbia, in each case having capital, surplus and
undivided profits totaling more than $500,000,000, maturing within one year of
the date of purchase; (iv) deposits, including interest-bearing deposits,
maintained in the ordinary course of business in banks; (v) any acquisition of
the Capital Stock of any Person; provided, that after giving effect to any such
acquisition such Person shall become a Restricted Subsidiary of the Company;
(vi) trade receivables and prepaid expenses. in each case arising in the
ordinary course of business; provided, that such receivables and prepaid
expenses would be recorded as assets of such Person in accordance with GAAP;
(vii) endorsements for collection or deposit in the ordinary course of business
by such Person of bank drafts and similar negotiable instruments of such other
Person received as payment for ordinary course of business trade receivables;
(viii) any interest swap or hedging obligation with an unaffiliated Person
otherwise permitted by the Indentures (including, without limitation, any
Currency Agreement and any Interest Rate Protection Agreement otherwise
permitted by this Indenture); (ix) Investments received as consideration for an
Asset Disposition in compliance with the provisions of Section 4.19; (x)
Investments for which the sole consideration provided is Qualified Capital Stock
of the Company; provided, that the issuance of such Qualified Capital Stock is
not included in the calculation set forth in clause (3) of the first paragraph
of Section 4.18; (xi) loans and advances to employees made in the ordinary
course of business in an aggregate amount not to exceed $10.0 million at any one
time outstanding; (xii) Investments outstanding on the Issue Date; (xiii)
Investments in the Company or a Wholly Owned Subsidiary; (xiv) Investments in
securities of trade creditors, suppliers or customers received pursuant to any
plan of reorganization or similar arrangement upon bankruptcy or insolvency of
such trade creditor, supplier or customer; (xv) Investments in any Person after
the Issue Date in an aggregate amount not in excess of $20.0 million at any one
time outstanding; and (xvi) Investments in publicly traded equity or publicly
traded Investment Grade debt obligations issued by a corporation (other than the
Company or an affiliate of the Company) organized under the laws of any State of
the United States of America and subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act in an aggregate amount not in excess of
$50.0 million at any one time outstanding.
"Permitted Joint Venture" means any Person which is, directly or
indirectly, through its subsidiaries or otherwise, engaged principally in any
business in which the
-19-
Company is engaged, or a reasonably related business, and the Capital Stock of
which is owned by the Company and one or more Persons other than the Company or
any affiliate of the Company.
"Permitted Liens" means (a) Liens for taxes, assessments and
governmental charges (other than any Lien imposed by the Employee Retirement
Income Security Act of 1974, as amended) that are not yet delinquent or are
being contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and for which adequate reserves have been established or
other provisions have been made in accordance with generally accepted accounting
principles; (b) statutory mechanics', workmen's, materialmen's, operators' or
similar Liens imposed by law and arising in the ordinary course of business for
sums which are not yet due or are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and for which adequate
reserves have been established or other provisions have been made in accordance
with generally accepted accounting principles; (c) minor imperfections of, or
encumbrances on, title that do not impair the value of property for its intended
use; (d) Liens (other than any Lien under the Employee Retirement Income
Security Act of 1974, as amended) incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (e) Liens incurred or deposits
made to secure the performance of tenders, bids, leases, statutory or regulatory
obligations, bankers' acceptances, surety and appeal bonds, government
contracts, performance and return of money bonds and other obligations of a
similar nature incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (f) easements, rights-of-way,
municipal and zoning ordinances and similar charges, encumbrances, title defects
or other irregularities that do not materially interfere with the ordinary
course of business of the Company or of any of its Restricted Subsidiaries; (g)
Liens (including extensions and renewals thereof) upon real or tangible personal
property acquired after the Issue Date; provided, that (I) such Lien is created
solely for the purpose of securing Indebtedness that is incurred in accordance
with this Indenture to finance the cost (including the cost of improvement or
construction) of the item of property or assets subject thereto and such Lien is
created prior to, at the time of or within 180 days after the later of the
acquisition, the completion of construction or the commencement of full
operation of such property, (II) the principal amount of the Indebtedness
secured by such Lien does not exceed 100% of such cost and (III) any such Lien
shall not extend to or cover any property or assets of the Company or of any
Restricted Subsidiary of the Company other than such item of property or assets
and any improvements on such item; (h) leases or subleases granted to others
that do not materially interfere with the ordinary course of business of the
Company or of any Restricted Subsidiary of the Company; (i) any interest or
title of a lessor in the property subject to any Capitalized Lease Obligation,
provided that any transaction related thereto otherwise complies with the
Indenture; (j) Liens arising from filing Uniform Com-
-20-
mercial Code financing statements regarding leases; (k) Liens arising from the
rendering of a final judgment or order against the Company or any Restricted
Subsidiary of the Company that does not give rise to an Event of Default; (l)
Liens securing reimbursement obligations with respect to letters of credit
incurred in accordance with this Indenture that encumber documents and other
property relating to such letters of credit and the products and proceeds
thereof; (m) Liens in favor of the Trustee arising under this Indenture; (n) any
lien existing on property, shares of stock or Indebtedness of a Person at the
time such Person becomes a Restricted Subsidiary of the Company or is merged
with or consolidated into the Company or a Restricted Subsidiary of the Company
or at the time of sale, lease or other disposition of the properties of any
Person as an entirety or substantially as an entirety to the Company or any
Restricted Subsidiary of the Company; (o) Liens on property of any Subsidiary of
the Company to secure Indebtedness for borrowed money owed to the Company or to
another Restricted Subsidiary of the Company; (p) Liens in favor of the Company;
(q) Liens existing on the Issue Date; (r) Liens in favor of custom and revenue
authorities arising as a matter of law to secure payment of nondelinquent
customs duties in connection with the importation of goods; (s) Liens
encumbering customary initial deposits and margin deposits, and other Liens
incurred in the ordinary course of business that are within the general
parameters customary in the industry, in each case securing Indebtedness under
Interest Rate Protection Agreement; (t) Liens encumbering deposits made in the
ordinary course of business to secure nondelinquent obligations arising from
statutory, regulatory, contractual or warranty requirements of the Company or
its Restricted Subsidiaries for which a reserve or other appropriate provision,
if any, as shall be required by GAAP shall have been made; and (u) Liens arising
out of consignment or similar arrangements for the sale of goods entered into by
the Company or any Restricted Subsidiary in the ordinary course of business in
accordance with industry practice.
"Person" means any individual, corporation, partnership, joint
venture, trust, estate, unincorporated organization or government or any agency
or political subdivision thereof.
"Plan of Liquidation" means, with respect to any Person, a plan
(including by operation of law) that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously) (i) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the referent Person and
(ii) the distribution of all or substantially all of the proceeds of such sale,
lease, conveyance or other disposition and all or substantially all of the
remaining assets of the referent Person to holders of Capital Stock of the
referent Person.
"principal" of a debt security means the principal amount of the
security plus, when appropriate, the premium, if any, on the security.
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"Preferred Stock" means, as applied to the Capital Stock of any
Person, the Capital Stock of such Person (other than the Common Stock of such
Person) of any class or classes (however designated) that ranks prior, as to the
payment of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding-up of such Person, to shares of
Capital Stock of any other class of such Person.
"Private Exchange Securities" shall have the meaning set forth in the
Registration Rights Agreement.
"Qualified Capital Stock" means, with respect to any Person, any
Capital Stock of such Person that is not Disqualified Capital Stock or
convertible into or exchangeable or exercisable for Disqualified Capital Stock.
"Qualified Securitization Transaction" means any transaction or series
of transactions that have been or may be entered into by any of the Restricted
Subsidiaries of the Company in connection with or reasonably related to a
transaction or series of transactions in which any of the Restricted
Subsidiaries may sell, convey or otherwise transfer to (i) a Securitization
Subsidiary or (ii) any other Person, or may grant a security interest in, any
Receivables or interests therein secured by the merchandise or services financed
thereby (whether such Receivables are then existing or arising in the future) of
any of the Restricted Subsidiaries of the Company, and any assets related
thereto including, without limitation, all security or ownership interests in
merchandise or services financed thereby, the proceeds of such Receivables, and
other assets which are customarily sold or in respect of which security
interests are customarily granted in connection with securitization transactions
involving such assets.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Rating Agency" means each of (i) S&P and (ii) Moody's.
"Receivables" means any right of payment from or on behalf of any
obligor, whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by any Restricted Subsidiary
of the Company of merchandise or services, and monies due thereunder, security
or ownership interests in the merchandise and services financed thereby, records
related thereto, and the right to payment of any interest or finance charges and
other obligations with respect thereto, proceeds from claims on insurance
policies related thereto, any other proceeds related thereto, and any other
related rights.
"Registrar" has the meaning provided in Section 2.3.
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"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof among the Company, the X.X. Xxxxxx Securities
Inc., Credit Suisse First Boston Corporation and Chase Securities Inc.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the May 15 or November 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S promulgated under the Securities Act
(including any successor registration thereto) as it may be amended from time to
time.
"Restricted Physical Security" means a Physical Security containing a
Securities Act Legend.
"Restricted Subsidiary" means any Subsidiary of the Company that is
not an Unrestricted Subsidiary.
"Rule 144" shall have the meaning set forth in the Registration Rights
Agreement.
"Rule 144A" shall have the meaning set forth in the Registration
Rights Agreement.
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers such property to a person and the Company or a Restricted Subsidiary
leases it from such Person.
"SEC" means the Securities and Exchange Commission.
"Securities" means any series of the 7% Senior Notes due 2003 issued,
authenticated and delivered under this Indenture, as amended or supplemented
from time to time pursuant to the terms of this Indenture, including the
Exchange Securities and Private Exchange Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Subsidiary" means a Subsidiary of the Company which
engages in no activities other than those reasonably related to or in connection
with the entering into of securitization transactions and which is designated by
the Board of Directors of the Company (as provided below) as a Securitization
Subsidiary (a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which (i) is guaranteed by
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the Company or any Restricted Subsidiary of the Company, (ii) is recourse to or
obligates the Company or any Restricted Subsidiary of the Company in any way
other than pursuant to representations, warranties and covenants (including
those related to servicing) entered into in the ordinary course of business in
connection with a Qualified Securitization Transaction or (iii) subjects any
property or asset of the Company or any Restricted Subsidiary of the Company,
directly or indirectly, continently or otherwise, to any Lien or to the
satisfaction thereof, other than pursuant to representations, warranties and
covenants (including those related to servicing) entered into in the ordinary
course of business in connection with a Qualified Securitization Transaction,
(b) with which neither the Company nor any Restricted Subsidiary of the Company
(i) provides any credit support or (ii) has any contract, agreement, arrangement
or understanding other than on terms that are fair and reasonable and that are
no less favorable to the Company or such Restricted Subsidiary than could be
obtained from an unrelated Person (other than, in the case of subclauses (i) and
(ii) of this clause (b), representations, warranties and covenants (including
those relating to servicing) entered into in the ordinary course of business in
connection with a Qualified Securitization Transaction and intercompany notes
relating to the sale of Receivables to such Securitization Subsidiary) and (c)
with which neither the Company nor any Restricted Subsidiary of the Company has
any obligation to maintain or preserve such Subsidiary's financial condition or
to cause such Subsidiary to achieve certain levels of operating results. Any
such designation by the Board of Directors of the Company shall be evidenced to
the Trustee by filing with the Trustee a certified copy of the resolutions of
the Board of Directors of the Company giving effect to such designation.
"Senior Indebtedness" means (a) the Securities, including principal,
premium, if any, and interest on the Securities and all other amounts due on or
in connection with the Securities, and (b) any other Indebtedness (including
principal, premium, if any, and interest on such Indebtedness) incurred by the
Company in accordance with the Senior Subordinated Note Indenture, whether such
Indebtedness is outstanding on the Issue Date or thereafter, provided that
Senior Indebtedness of the Company expressly shall not include: (i) any
Indebtedness of the Company (whether outstanding on the Issue Date or thereafter
incurred) that is, pursuant to its terms or the terms of any agreement relating
thereto, subordinated or junior to any other Indebtedness of the Company; (ii)
any Indebtedness of the Company (whether outstanding on the Issue Date or
thereafter incurred) that is, by its terms or the terms of any agreement
relating thereto, pari passu with or subordinated or junior to the Senior
Subordinated Notes; (iii) the Senior Subordinated Notes; (iv) any Indebtedness
or any other obligation of the Company to any of the Company's Restricted
Subsidiaries or to any of the Company's Affiliates, or to any joint venture in
which the Company has an interest; (v) to the extent such may be deemed
Indebtedness of the Company, any liability for Federal, state, local, foreign or
other taxes owed or owing by the Company or by any of its Restricted
Subsidiaries (including pursuant to the Tax Allocation Agreement); (vi) to the
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extent such may be deemed Indebtedness of the Company, obligations of the
Company incurred in connection with the purchase of goods, assets, materials or
services in the ordinary course of business or representing amounts recorded as
accounts payable, trade payables, or other current liabilities of the Company on
the books of the Company (other than the current portion of any long-term
Indebtedness of the Company that but for this clause (vi) would constitute
Senior Indebtedness of the Company); (vii) to the extent such may be deemed
Indebtedness of the Company, any amount owed by the Company to employees for
services rendered to the Company or to any of its Restricted Subsidiaries; and
(viii) that portion of any Indebtedness which at the time of incurrence is
incurred in violation of the Senior Subordinated Note Indenture.
"Senior Subordinated Notes" means the 8% Senior Subordinated Notes due
2008, issued, authenticated and delivered under the Senior Subordinated Note
Indenture, as amended or supplemented from time to time pursuant to its terms.
"Senior Subordinated Note Indenture" means the Senior Subordinated
Note Indenture, dated February 4, 1998, relating to the Senior Subordinated
Notes.
"Senior Subordinated Note Registration Rights Agreement" means the
Registration Rights Agreement dated February 4, 1998 with respect to the Senior
Subordinated Notes among the Company and the parties named therein.
"Shelf Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 2.10.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors.
"Stated Maturity" means, with respect to any security or Indebtedness
of a Person, the date specified therein as the fixed date on which any principal
of such security or Indebtedness is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase thereof at the option of the holder thereof).
"Subsidiary" of any Person means (a) a corporation a majority of whose
Voting Stock is at the time, directly or indirectly, owned by such Person, by
one or more Restricted Subsidiaries of such Person or by such Person and one or
more Restricted Subsidiaries of such Person or (b) any other Person (other than
a trust formed in connection
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with a Qualified Securitization Transaction) in which such Person, a Restricted
Subsidiary of such Person or such Person and one or more Restricted Subsidiaries
of such Person, directly or indirectly, at the date of determination thereof,
have at least a majority ownership interest.
"Subsidiary Guarantee" means each Subsidiary Guarantee of the
Securities issued pursuant to Section 4.15.
"Subsidiary Guarantor" means each Restricted Subsidiary of the Company
that becomes a guarantor of the Securities pursuant to Section 4.15.
"Supply Agreement" means the Amended and Restated Parent's Side
Agreement dated as of November 8, 1994 between the Company and Transportation.
"Tax Allocation Agreement" means the Tax Allocation Agreement among
the Company and its subsidiaries, effective as of October 1, 1981, as it has
been and may be amended and/or supplemented from time to time.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
(S)(S)77aaa-77bbbb) as in effect on the date of this Indenture.
"Transportation" means Navistar International Transportation Corp., a
Delaware corporation and a Subsidiary of the Company.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means an officer or administrator of the Trustee
assigned to the Corporate Trust Administration Department or similar department
performing corporate trust work, or any successor to such department or, in the
case of a successor trustee, an officer assigned to the department, division or
group performing the corporate trust work of such successor.
"Unrestricted Global Securities" means one or more Global Securities
that do not and are not required to bear the Securities Act Legend.
"Unrestricted Physical Securities" means one or more Physical
Securities that do not and are not required to bear the Securities Act Legend.
"Unrestricted Securities" means the Securities that do not and are not
required to bear the Securities Act Legend.
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"Unrestricted Subsidiary" means (i) each of Navistar Financial
Corporation, Arrendadora Financiera Navistar S.A. de C.V., Servicios Financieros
Navistar S.A. de C.V., Servicios Financieros NFC, S.A. de C.V., Harbour
Assurance Company of Bermuda Limited, Navistar Acceptance Corporation Limited,
the DealCor Subsidiaries of Transportation that are treated on an equity basis
by the Company on the Issue Date, and their respective Subsidiaries until such
time as it is designated a Restricted Subsidiary pursuant to the second
succeeding sentence, (ii) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of
Directors in the manner provided below and (iii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Capital Stock of, or holds any Lien on any property of, the Company or any
other Restricted Subsidiary of the Company; provided, that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000, such designation would be permitted
under Section 4.18. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided, that immediately after
giving effect to such designation (x) if such Unrestricted Subsidiary at such
time has Indebtedness, the Company could incur $1.00 of additional Indebtedness
under clause (i) of Section 4.9 and (y) no Default shall have occurred and be
continuing. Any such designation by the Board of Directors shall be evidenced by
the Company to the Trustee by promptly filing with the Trustee a copy of the
board resolution giving effect to such designation and an officers' certificate
certifying that such designation complied with the foregoing provisions.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors or other governing body of such Person.
"Wholly Owned Subsidiary" means, with respect to any Person, any
Restricted Subsidiary of such Person all of the outstanding shares of Capital
Stock (other than directors' qualifying shares, if applicable) of which are
owned directly by such Person or another Wholly Owned Subsidiary of such Person.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision shall be deemed incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
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(a) "Commission" means the SEC;
(b) "indenture securities" means the Securities;
(c) "indenture security holder" means a Securityholder;
(d) "indenture to be qualified" means this Indenture;
(e) "indenture trustee" or "institutional trustee" means the Trustee;
and
(f) "obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by the Securities
Act or the Exchange Act and not otherwise defined herein have the meanings so
assigned to them therein.
SECTION 1.3 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) words in the singular include the plural, and words in the plural
include the singular;
(d) provisions apply to successive events and transactions;
(e) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other Subdivision; and
(f) unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with generally accepted accounting
principles as in effect from time to time, applied on a basis consistent
with the most recent audited consolidated financial statements of the
Company.
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ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.
(a) Global Securities. Securities offered and sold to QIBs in
reliance on Rule 144A shall be issued initially substantially in the form of
Exhibit A hereto in the name of Cede & Co. as nominee of DTC, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. Any such
Security shall be referred to herein as the "144A Global Security." Securities
offered and sold in reliance on Regulation S shall be issued initially
substantially in the form of Exhibit A hereto in the name of Cede & Co. as
nominee of DTC, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. Any such Security shall be referred to herein as the
"Regulation S Global Security." Unrestricted Global Securities shall be issued
initially in accordance with Sections 2.6(b)(iv), 2.6(c)(ii) and 2.6(e) in the
name of Cede & Co. as nominee of DTC, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of each of the Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee as hereinafter
provided.
Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Securities from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions and transfers of interests
therein in accordance with the terms of this Indenture. Any change in the
aggregate principal amount of a Global Security to reflect the amount of any
increase or decrease in the principal amount of outstanding Securities
represented thereby shall be made by the Trustee in accordance with reasonable
instructions given by the Holder thereof as required by Section 2.6 hereof and
shall be conclusively reflected on the books and records of the Trustee.
Upon the issuance of the Global Security to DTC, DTC shall credit, on
its internal book-entry registration and transfer system, its Participant's
accounts with the respective interests owned by such Participants. Interests in
the Global Securities shall be limited to Participants, including Euroclear and
Cedel, and indirect Participants.
The Participants shall not have any rights either under this
Indenture or under any Global Security with respect to such Global Security held
on their behalf by DTC,
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and DTC may be treated by the Company, the Trustee and any agent of the Company
or the Trustee as the absolute owner of such Global Securities for the purpose
of receiving payment of or on account of the principal of and, subject to the
provisions of this Indenture, interest and Additional Interest, if any, on the
Global Securities and for all other purposes. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by DTC or impair, as between DTC and its
Participants, the operation of customary practices of DTC governing the exercise
of the rights of an owner of a beneficial interest in any Global Security.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel, as in effect from
time to time, shall be applicable to interests in the Regulation S Global
Security that are held by the Participants through Euroclear or Cedel.
(b) Physical Securities. Securities issued substantially in the form
of Exhibit A hereto, in certificated form and in the names of the purchasers
thereof (or their nominees), duly executed by the Company and authenticated by
the Trustee as hereinafter provided shall be referred to herein as the "Physical
Securities." Except as provided in Section 2.6(a) owners of beneficial
interests in the Global Securities will not be entitled to receive Physical
Securities.
(c) Securities. The provisions of the form of Securities contained
in Exhibit A hereto are incorporated herein by reference. The Securities and
the Trustee's Certificates of Authentication shall be substantially in the form
of Exhibit A hereto. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage and provided to the Trustee in
writing by the Company. The Company shall approve the form of the Securities
and any notation, legend or endorsement on them. If required, the Securities
may bear the appropriate legend regarding original issue discount for federal
income tax purposes. Each Security shall be dated the date of its
authentication. The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture.
SECTION 2.2 Execution and Authentication.
Two Officers of the Company shall sign the Securities for the Company
by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
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A Security shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Notes for issue on the
Issue Date in the aggregate principal amount of $100,000,000, (ii) Private
Exchange Securities from time to time only in exchange for a like principal
amount of Initial Securities and (iii) Unrestricted Securities from time to time
only in exchange for a like principal amount of Initial Securities, in each case
upon a written order signed by an Officer of the Company. The order shall be
based upon a Board Resolution of the Company and shall specify the amount of
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated. The order shall also provide instructions
concerning registration, legends, if any, pursuant to Section 2.6(f), amounts
for each Holder and delivery. The aggregate principal amount of Securities
outstanding at any time may not exceed $100,000,000 except as provided in
Section 2.7. The Securities shall be issued only in registered form, without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying Agent").
The Company may have one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent and shall, if required,
incorporate the provisions of the TIA. The Company shall notify the Trustee in
writing of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with the provisions of
Section 7.7.
The Company initially appoints the Trustee as Registrar and Paying
Agent. The Company shall give written notice to the Trustee in the event that
the Company decides to act as Registrar.
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SECTION 2.4 Paying Agent To Hold Money in Trust.
The Company shall require each Paying Agent to agree in writing to
hold in trust for the benefit of Securityholders or the Trustee all money held
by the Paying Agent for the payment of principal of or interest on the
Securities (whether such money has been paid to it by the Company or any other
obligor on the Securities), and the Company and the Paying Agent shall each
notify the Trustee of any default by the Company (or any other obligor on the
Securities) in making any such payment. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed and the Trustee may at any time during the continuance of any
payment default, upon written request to a Paying Agent, require such Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed. Upon making such payment the Paying Agent shall have no further
liability for the money delivered to the Trustee.
SECTION 2.5 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least five Business Days before each Interest Payment Date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
SECTION 2.6 Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. Transfer of the
Global Securities shall be by delivery. Global Securities may not be
transferred as or exchanged for Physical Securities except (i) if DTC notifies
the Company that it is unwilling or unable to continue to act as depositary with
respect to the Global Securities or ceases to be a clearing agency registered
under the Exchange Act and, in either case, a successor depositary registered as
a clearing agency under the Exchange Act is not appointed by the Company within
120 days, (ii) at any time if the Company in its sole discretion determines that
the Global Securities (in whole but not in part) should be exchanged for
Physical Securities or (iii) if the owner of an interest in the Global
Securities requests such Physical Securities, following an Event of Default
under this Indenture, in a writing delivered through DTC to the Trustee.
Upon the occurrence of any of the events specified in the previous
paragraph, Physical Securities shall be issued in such names as DTC shall
instruct the Trustee and the Trustee shall cause the aggregate principal amount
of the applicable Global Security to be reduced accordingly and direct DTC to
make a corresponding reduction in its book-
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entry system. The Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in such instructions a Physical Security in the
appropriate principal amount. The Trustee shall deliver such Physical Securities
to the Persons in whose names such Securities are so registered. Physical
Securities issued in exchange for an Initial Global Security pursuant to this
Section 2.6 (a) shall bear the Securities Act Legend and shall be subject to all
restrictions on transfer contained therein. Global Securities may also be
exchanged or replaced, in whole or in part, as provided in Sections 2.7 and 2.8.
Every Security authenticated and delivered in exchange for, or in lieu of, a
Global Security or any portion thereof, pursuant to Section 2.7 or 2.8, shall be
authenticated and delivered in the form of, and shall be, a Global Security. A
Global Security may not be exchanged for another Security other than as provided
in this Section 2.6(a).
(b) Transfer and Exchange of Interests in Global Securities. The
transfer and exchange of interests in Global Securities shall be effected
through DTC, in accordance with this Indenture and the procedures of DTC
therefor. Interests in Initial Global Securities shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. The Trustee shall have no obligation to
ascertain DTC's compliance with any such restrictions on transfer. Transfers of
interests in Global Securities shall also require compliance with subparagraph
(i) below, as well as one or more of the other following subparagraphs as
applicable:
(i) All Transfers and Exchanges of Interests in Global Securities.
In connection with all transfers and exchanges of interests in Global
Securities (other than transfers of interests in a Global Security to
Persons who take delivery thereof in the form of an interest in the same
Global Security), the transferor of such interest must deliver to the
Registrar (1) instructions given in accordance with the Applicable
Procedures from a Participant or an indirect Participant directing DTC to
credit or cause to be credited an interest in the specified Global Security
in an amount equal to the interest to be transferred or exchanged, (2) a
written order given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such
increase and (3) instructions given by the Holder of the Global Security to
effect the transfer referred to in (1) and (2) above.
(ii) Transfer of Interests in the Same Initial Global Security.
Interests in any Initial Global Security may be transferred to Persons who
take delivery thereof in the form of an interest in the same Initial Global
Security in accordance with the transfer restrictions set forth in Section
2.6(f) hereof. It shall be the sole responsibility of the selling
beneficial owner to deliver these transfer documents, if any are required,
to the Company and the Trustee shall have no responsibility or duty to
collect the transfer documentation set forth in Section 2.6(f).
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(iii) Transfer of Interests to Another Initial Global Security.
Interests in any Initial Global Security may be transferred to Persons who
take delivery thereof in the form of an interest in another Initial Global
Security if the Registrar receives the following:
(A) if the transferee will take delivery in the form of an
interest in the 144A Global Security, then the transferor must deliver
a certificate in the form of Exhibit D hereto, including the
certifications in item 1 thereof; or
(B) if the transferee will take delivery in the form of an
interest in the Regulation S Global Security, then the transferor must
deliver a certificate in the form of Exhibit D hereto, including the
certifications in item 2 thereof.
(iv) Transfer and Exchange of Interests in Initial Global Security
for Interests in an Unrestricted Global Security. Interests in any Initial
Global Security may be exchanged by the holder thereof for an interest in
the Unrestricted Global Security or transferred to a Person who takes
delivery thereof in the form of an interest in the Unrestricted Global
Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement and the Company delivers an Officers' Certificate to
the Trustee stating that such Exchange Registration Statement has
become effective and directing the Trustee to effect the exchange or
transfer on the terms set forth therein;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement and the Company delivers an Officers' Certificate to the
Trustee stating that such Shelf Registration Statement has become
effective and directing the Trustee to effect the exchange or transfer
on the terms set forth therein; or
(C) the Registrar receives the following:
(1) if the holder of such an interest in an Initial Global
Security proposes to exchange it for an interest in the
Unrestricted Global Security, a certificate from such Holder in
the form of Exhibit E hereto, including the certifications in
item 1(a) thereof;
(2) if the holder of such an interest in an Initial Global
Security proposes to transfer it to a Person who shall take
delivery
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thereof in the form of an interest in an Unrestricted Global
Security, a certificate in the form of Exhibit D hereto,
including the certification in item 4 thereof; and
(3) in each such case set forth in this paragraph (C), an
Opinion of Counsel in form reasonably acceptable to the Company
and the Trustee, to the effect that such exchange or transfer is
in compliance with the Securities Act and, that the restrictions
on transfer contained herein and in Section 2.6(f) hereof are not
required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a time
when an Unrestricted Global Security has not yet been issued, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.2, the Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the principal amount
of interests in the Initial Global Securities transferred pursuant to
paragraph (B) above, provided the Company has made appropriate arrangements
with DTC prior to delivery of such an authentication order to the Trustee.
(v) Notation by the Trustee of Transfer of Interests Among
Global Securities. Upon satisfaction of the requirements for transfer of
interests in Global Securities pursuant to clauses (iii) or (iv) above, the
Trustee shall reduce or cause to be reduced the aggregate principal amount
of the relevant Global Security from which the interests are being
transferred, and increase or cause to be increased the aggregate principal
amount of the Global Security to which the interests are being transferred,
in each case, by the principal amount so transferred and shall direct DTC
to make corresponding adjustments in its book-entry system. No transfer of
interests of a Global Security shall be effected until, and any transferee
pursuant thereto shall succeed to the rights of a holder of such interests
only when, the Registrar has made appropriate adjustments to the applicable
Global Security in accordance with this paragraph.
(c) Transfer or Exchange of Physical Securities for Interests in a
Global Security.
(i) If any Holder of Physical Securities required to contain
the Securities Act Legend proposes to exchange such Securities for an
interest in a Global Security or to transfer such Physical Securities to a
Person who takes delivery thereof in the form of an interest in a Global
Security, then, upon receipt by the Registrar of the following
documentation (all of which may initially be submitted by facsimile,
pro-
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vided arrangements satisfactory to the Trustee are made for delivery of the
originals):
(A) if the Holder of such Physical Registered Securities
proposes to exchange such Securities for an interest in an Initial
Global Security, a certificate from such Holder in the form of Exhibit
E hereto, including the certifications in item 2 thereof;
(B) if such Physical Securities are being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit D hereto, including the
certifications in item 1 thereof; or
(C) if such Physical Securities are being transferred to a
Non-U.S. Person (as defined in Regulation S) in an offshore
transaction in accordance with Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit D hereto, including the
certifications in item 2 thereof;
the Trustee shall cancel the Physical Securities, increase or cause to be
increased the aggregate principal amount of, in the case of clause (B)
above, the 144A Global Security, in the case of clause (C) above, the
Regulation S Global Security, and direct DTC to make a corresponding
increase in its book-entry system.
(ii) A Holder of Physical Securities required to contain the
Securities Act Legend may exchange such Securities for an interest in the
Unrestricted Global Security or transfer such Restricted Physical
Securities to a Person who takes delivery thereof in the form of an
interest in the Unrestricted Global Security only:
(A) if such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement and the Company delivers an Officers' Certificate to
the Trustee stating that such Exchange Registration Statement has
become effective and directing the Trustee to effect the exchange or
transfer on the terms set forth therein;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement and the Company delivers an Officers' Certificate to the
Trustee stating that such Shelf Registration Statement has become
effective and directing the Trustee to effect the exchange or transfer
on the terms set forth therein;
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(C) upon receipt by the Registrar of the following documentation
(all of which may be submitted by facsimile):
(1) if the Holder of such Physical Securities proposes to
exchange such Securities for an interest in the Unrestricted
Global Security, a certificate from such Holder in the form of
Exhibit E hereto, including the certifications in item 1(b)
thereof;
(2) the Holder of such Registered Securities proposes to
transfer such Securities to a Person who shall take delivery
thereof in the form of an interest in the Unrestricted Global
Security, a certificate in the form of Exhibit D hereto,
including the certifications in item 4 thereof; and
(3) in each such case set forth in this paragraph (C), an
Opinion of Counsel in form reasonably acceptable to the Company,
to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer
contained herein and in Section 2.6(f) hereof are not required in
order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a time
when an Unrestricted Global Security has not yet been issued, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.2, the Trustee shall authenticate (i) one or more Unrestricted
Global Securities in an aggregate principal amount equal to the principal
amount of Physical Securities transferred pursuant to paragraph (B) above.
(d) Transfer and Exchange of Physical Securities.
(i) Transfer of a Physical Security to Another Physical
Security. Following the occurrence of one or more of the events specified
in Section 2.6(a), a Physical Security may be transferred to Persons who
take delivery thereof in the form of another Physical Security if the
Registrar receives the following:
(A) if the transfer is being effected pursuant to and in
accordance with Rule 144A, then the transferor must deliver a
certificate in the form of Exhibit D hereto, including the
certifications in item 3(a) thereof; or
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(B) if the transfer is being effected pursuant to and in
accordance with Regulation S, then the transferor must deliver a
certificate in the form of Exhibit D hereto, including the
certifications in item 3(b) thereof.
(ii) Transfer and Exchange of Restricted Physical Security for
Physical Security Which Does Not Bear the Securities Act Legend. Following
the occurrence of one or more of the events specified in Section 2.6(a) and
the receipt by the Trustee of an Officers' Certificate stating that such
events have occurred, a Restricted Physical Security may be exchanged by
the Holder thereof for a Physical Security or transferred to a Person who
takes delivery thereof in the form of a Physical Security which does not
bear the Securities Act Legend if:
(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement and the receipt by the Trustee of an Officers'
Certificate stating that such events have occurred;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement and the receipt by the Trustee of an Officers' Certificate
stating that such events have occurred; or
(C) the Registrar receives a certificate from such Holder in
the form of Exhibit E hereto, including the certifications in item
1(c) thereof and an Opinion of Counsel in form reasonably acceptable
to the Company, to the effect that such exchange or transfer is in
compliance with the Securities Act and, that the restrictions on
transfer contained herein and in Section 2.6(f) hereof are not
required in order to maintain compliance with the Securities Act.
(iii) Exchange of Physical Securities. When Physical Securities are
presented by a Holder to the Registrar with a request to register the
exchange of such Physical Securities for an equal principal amount of
Physical Securities of other authorized denominations, the Registrar shall
make the exchange as requested only if the Physical Securities are endorsed
or accompanied by a written instrument of transfer in form satisfactory to
the Registrar duly executed by such Holder or by his attorney duly
authorized in writing and shall be issued only in the name of such Holder
or its nominee and the transfer documentation required in Section
2.6(d)(ii). The Physical Securities issued in exchange for Physical
Securities shall bear the Securities Act Legend and shall be subject to all
restrictions on transfer contained herein in each case to the same extent
as the Physical Securities so exchanged.
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(iv) Return of Physical Securities. In the event of a transfer
pursuant to clauses (i) or (ii) above and the Holder thereof as delivered
certificates representing an aggregate principal amount of Securities in
excess of that to be transferred, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security without
service charge, a new Physical Security or Securities of any authorized
denomination requested by the Holder, in an aggregate principal amount
equal to the portion of the Security not so transferred.
(e) Exchange Offer. Upon the occurrence of the Exchange Offer (as
defined in the Registration Rights Agreement) in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
Officers' Certificate stating that the Exchange Registration Statement has
become effective and that the Exchange Offer has occurred and an authentication
order in accordance with Section 2.2, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of the interests in the Initial Global Securities and
Restricted Physical Securities tendered for acceptance by persons participating
therein. Concurrently with the issuance of such Securities, the Trustee shall
cause the aggregate principal amount of the applicable Initial Global Securities
to be reduced accordingly and direct DTC to make a corresponding reduction in
its book-entry system. The Trustee shall cancel any Restricted Physical
Certificates in accordance with Section 2.9 hereof.
In the case that one or more of the events specified in Section 2.6(a)
have occurred, upon the occurrence of such Exchange Offer, the Company shall
issue and, upon receipt of an authentication order in accordance with Section
2.2, the Trustee shall authenticate Unrestricted Physical Securities in an
aggregate principal amount equal to the principal amount of the Restricted
Physical Securities tendered for acceptance by persons participating therein.
(f) Legends.
Each Initial Global Security and each Restricted Physical Security
shall bear the legend (the "Securities Act Legend") in substantially the
following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS NOTE MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS
NOTE MAY BE RELYING ON THE EXEMPTION
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FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER."
"THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (I) INSIDE THE UNITED STATES TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE."
(g) Global Security Legend. Each Global Security shall bear a legend
in substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO A NOMINEE OF DTC, OR BY ANY SUCH
NOMINEE OF DTC, OR BY DTC TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC). ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY
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OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS
OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.6
OF THE INDENTURE."
(h) Cancellation and/or Adjustment of Global Securities. At such
time as all interests in the Global Securities have been exchanged for Physical
Securities, all Global Securities shall be returned to or retained and canceled
by the Trustee in accordance with Section 2.9 hereof. At any time prior to such
cancellation, if any interest in a Global Security is exchanged for an interest
in another Global Security or for Physical Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
all such changes to such Global Security shall be reflected on the books and
records of the Trustee, by the Trustee to reflect such reduction.
(i) General Provisions Relating to All Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Securities
and Physical Securities upon a written order signed by an Officer of the
Company or at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any stamp or transfer tax or similar
governmental charge payable in connection therewith (other than any such
stamp or transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.8 and 4.11 hereof).
(iii) All Global Securities and Physical Securities issued
upon any registration of transfer or exchange of Global Securities or
Physical Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Securities or Physical Securities surrendered upon
such registration of transfer or exchange.
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(iv) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Securities during a period
beginning at the opening of business 15 days before the day of any
selection of Securities for redemption and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (C) to
register the transfer of or to exchange a Security between a record date
and the next succeeding Interest Payment Date.
(v) Prior to due presentment for the registration of a
transfer of any Security, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Security is registered as the
absolute owner of such Security for the purpose of receiving payment of
principal of and interest on such Securities and for all other purposes,
and none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
Notwithstanding anything herein to the contrary, as to any
certification or certificate delivered to the Registrar pursuant to this Section
2.6, the Registrar's duties shall be limited to confirming that any such
certification or certificate delivered to it is in the form of Exhibit D or E
attached hereto. The Registrar shall not be responsible for confirming the
truth or accuracy of any representations made in any such certification or
certificate.
SECTION 2.7 Replacement Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and principal amount, having
endorsed thereon and bearing a number not contemporaneously outstanding.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that
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may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.8 Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and, upon Company Order, the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 10.2, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations and like tenor. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 2.9 Cancellation.
All Securities surrendered for payment, redemption or registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in
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lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be destroyed by the Trustee and upon the Company's written
request, the Trustee shall deliver a certificate of destruction to the Company.
SECTION 2.10 Defaulted Interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a date
for the payment of such Defaulted Interest (herein called a "Special Record
Date"), which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Company
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days prior to the date of the proposed
payment. The Company shall promptly notify the Trustee of such Special
Record Date and, in the name and at the expense of the Company, the Trustee
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security Register, not
less than five Business Days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid not
later than the fifteenth day after such Special Record Date to the Persons
in whose names the Securities (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be re-
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quired by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of
payments shall be deemed practicable by the Trustee.
SECTION 2.11 CUSIP or CINS Number.
The Company in issuing the Securities may use a "CUSIP" or "CINS"
number, and if so, such CUSIP or CINS number shall be included in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP or CINS number printed in the notice or on the Securities,
and that reliance may be placed only on the other identification numbers printed
on the Securities. The Company will promptly notify the Trustee of any change
in the CUSIP or CINS number.
SECTION 2.12 Payments of Interest.
(a) The Holder of a Physical Security at the close of business on the
Regular Record Date with respect to any Interest Payment Date shall be entitled
to receive the interest and Additional Interest, if any, payable on such
Interest Payment Date notwithstanding any transfer or exchange of such Physical
Security subsequent to the regular record date and prior to such Interest
Payment Date, except if and to the extent the Company shall default in the
payment of the interest or Additional Interest due on such Interest Payment
Date, in which case such Defaulted Interest and Additional Interest, if any,
shall be paid in accordance with Section 2.10; provided that, in the event of an
exchange of a Physical Security for a beneficial interest in any Global Security
subsequent to a regular record date or any special record date and prior to or
on the related Interest Payment Date or other payment date under Section 2.10,
any payment of the interest and Additional Interest payable on such payment date
with respect to any such Physical Security shall be made to the Person in whose
name such Physical Security was registered on such record date. Payments of
interest on the Global Securities will be made to the Holder of the Global
Security on each Interest Payment Date; provided that, in the event of an
exchange of all or a portion of a Global Security for Physical Security
subsequent to the regular record date or any special record date and prior to or
on the related Interest Payment Date or other payment date under Section 2.10
any payment of interest or Additional Interest payable on such Interest Payment
Date or other payment date with respect to the Physical Security shall be made
to the Holder of the Global Security.
(b) The Trustee shall pay interest and Additional Interest, if any,
to DTC, with respect to any Global Security held by DTC, on the applicable
Interest Payment Date in accordance with instructions received from the Company
at least five Business Days before the applicable Interest Payment Date. The
Company shall deliver such instructions in
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the form of an Officers' Certificate setting forth Additional Interest in the
aggregate and per $1,000 principal amount of Securities to be paid on such
Interest Payment Date.
ARTICLE III
[RESERVED]
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities.
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities and this Indenture.
An installment of principal or interest shall be considered paid on
the date due if the Trustee or Paying Agent (other than the Company or any
Subsidiary of the Company or any Affiliate of any thereof) holds on such date by
12:00 noon, New York City time, immediately available funds designated for and
sufficient to pay such installment.
The Company shall pay interest on overdue principal and on overdue
installments of interest, in each case at the rate per annum specified in the
Securities, to the extent lawful.
SECTION 4.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency, where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.2.
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The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may 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 in the Borough of
Manhattan, the City of New York, for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
The Company hereby initially designates the offices of the Trustee as
set forth in Section 10.2 as an agency of the Company in accordance with Section
2.3.
SECTION 4.3 Corporate Existence.
Subject to Article V hereof, the Company shall do or cause to be done,
at its own cost and expense, all things necessary to and will cause each of its
Subsidiaries to, preserve and keep in full force and effect the corporate
existence and rights (charter and statutory), licenses and/or franchises of the
Company and each of its Subsidiaries, provided that the Company shall not be
required to preserve any such right, license or franchise, or the corporate
existence of any of its Subsidiaries, if in the reasonable and good faith
judgment of the Board of Directors of the Company (i) such preservation or
existence is not desirable in the conduct of business of the Company or such
Subsidiary and (ii) the loss of such right, license or franchise or the
dissolution of such Subsidiary is not adverse in any material respect to the
Holders or to the Company or the ability of the Company to satisfy its
obligations hereunder.
SECTION 4.4 Payment of Taxes and Other Claims.
The Company shall and shall cause each of its Subsidiaries to pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all material taxes, assessments and governmental charges levied
or imposed upon its or its Subsidiaries' income, profits or property and (b) all
material lawful claims for labor, materials and supplies which, if unpaid, might
by law become a Lien upon its property or the property of any of its
Subsidiaries, provided that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate negotiations or proceedings promptly instituted and diligently
conducted and for which disputed amounts adequate reserves (in the reasonable
and good faith judgment of the Board of Directors of the Company) have been
made.
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SECTION 4.5 Maintenance of Properties; Insurance; Books and Records;
Compliance with Law.
(a) The Company shall, and shall cause each of its Subsidiaries to,
at all times cause all properties used or useful in the conduct of its business
to be maintained and kept in good condition, repair and working order
(reasonable wear and tear excepted) and supplied with all necessary equipment,
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereto, provided that nothing in this Section 4.5
shall prevent the Company or any Subsidiary from discontinuing the operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is (i) in the ordinary course of business, (ii) in
the reasonable and good faith judgment of the Board of Directors of the Company
or the Subsidiary concerned, as the case may be, desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be, or (iii)
otherwise permitted by this Indenture.
(b) The Company shall, and shall cause each of its Subsidiaries to
maintain with financially sound and reputable insurers such insurance (including
appropriate self insurance) as may be required by law and such other insurance,
to such extent and against such hazards and liabilities consistent with practice
on the Issue Date, as the Company in its reasonable and good faith judgment
determines is required, taking into account its business and financial
condition.
(c) The Company shall, and shall cause each of its Subsidiaries to,
keep proper books of record and account, in which full and correct entries shall
be made of all business and financial transactions of the Company and each
Subsidiary of the Company and reflect on its financial statements adequate
accruals and appropriations to reserves, all in accordance with generally
accepted accounting principles consistently applied to the Company and its
Subsidiaries taken as a whole.
(d) The Company shall and shall cause each of its Subsidiaries to
comply with all statutes, laws, ordinances, or government rules and regulations
to which it is subject, non-compliance with which would materially adversely
affect the business, earnings, properties, assets or financial condition of the
Company and its Subsidiaries taken as a whole.
SECTION 4.6 Compliance Certificates.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of its Fiscal Year, Officers' Certificates of the Company signed by the
Officers specified under TIA (S)314(a)(4) stating (i) that a review of the
activities of the Company during the preceding Fiscal Year has been made under
the supervision of the signing Officers with a
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view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture and the Securities, and (ii)
that, to the knowledge of such Officer, no Default or Event of Default has
occurred (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which such Officer may have knowledge,
their status and what action the Company is taking or proposes to take with
respect thereto). The first certificate to be delivered pursuant to this Section
4.6(a) shall be for the first Fiscal Year of the Company ending after the Issue
Date.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the Company shall cause
its independent public accountants to deliver to the Trustee within 120 days
after the end of each Fiscal Year a written statement by such accountants
stating (A) that their audit examination has included a review of the relevant
provisions of this Indenture and the Securities as they relate to accounting
matters, and (B) whether, in connection with their audit examination, any
Default or Event of Default has come to their attention and if such a Default or
Event of Default has come to their attention, specifying the nature and period
of existence thereof, provided that, without any restriction as to the scope of
the audit examination, such independent certified public accountants shall not
be liable by reason of any failure to obtain knowledge of any such Default or
Event of Default that would not be disclosed in the course of an audit
examination conducted in accordance with generally accepted auditing standards.
(c) The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly after any Officer becoming aware
of (i) any Default, Event of Default or default in the performance of any
covenant, agreement or condition contained in the Securities or this Indenture
or (ii) any event of default under any other Indebtedness referred to in Section
6.1(a)(v), an Officers' Certificate specifying such Default, Event of Default,
default or event of default and what action the Company is taking or proposes to
take with respect thereto.
SECTION 4.7 Reports.
So long as any security is outstanding, the Company will file with the
Commission and, within 15 days after it files them with the Commission, file
with the Trustees and mail or cause the Trustees to mail to the Holders at their
addresses as set forth in the register of the Securities copies of the annual
reports and of the information, documents and other reports which the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act or which the Company would be required to file with the Commission
if the Company then had a class of securities registered under the Exchange Act.
In addition, the Company shall cause its annual report to stockholders and any
quarterly or other financial reports furnished to its stockholders generally to
be filed with
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the Trustee and mailed, no later than the date such materials are mailed or made
available to the Company's stockholders, to the Holders at their addresses as
set forth in the register of Securities.
SECTION 4.8 Application of Fall Away Covenants
After the Securities have been assigned an Investment Grade rating by
both Rating Agencies, the Company will no longer be subject to Sections 4.9,
4.12, 4.14, 4.17, 4.18, 4.19, clauses (i)(A) and (iii) of the first paragraph of
Section 4.20 and clause (ii) of Section 5.1; provided, such provisions shall no
longer have application for any purpose of this Indenture.
SECTION 4.9 Limitation on Incurrence of Indebtedness.
The Company will not, and the Company will not cause or permit any of
its Restricted Subsidiaries to incur, directly or indirectly, any Indebtedness,
except:
(i) Indebtedness of the Company, if immediately after giving
effect to the incurrence of such Indebtedness and the receipt and
application of the net proceeds thereof, the Consolidated Cash Flow Ratio
of the Company for the four full fiscal quarters for which quarterly or
annual financial statements are available next preceding the incurrence of
such Indebtedness would be greater than 2.25 to 1.00;
(ii) Indebtedness outstanding on the Issue Date;
(iii) Indebtedness incurred pursuant to the $125.0 million Credit
Agreement dated as of November 26, 1997 among Navistar International
Corporation Mexico, S.A. de C.V., the Company and the lenders listed
therein, as such agreement, in whole or in part, may be amended, renewed,
extended, increased (but only so long as such increase as is permitted
under the terms of the Indenture), substituted, refinanced, restructured,
replaced (including, without limitation, any successive renewals,
extensions, increases, substitutions, refinancings, restructurings,
replacements, supplements, or other modifications of the foregoing);
(iv) Indebtedness owed by the Company to any Wholly-Owned
Subsidiary of the Company or Indebtedness owed by a Subsidiary of the
Company to the Company or a Wholly-Owned Subsidiary of the Company;
provided, that, upon either (I) the transfer or other disposition by such
Wholly-Owned Subsidiary or the Company of any Indebtedness so permitted
under this clause (iv) to a Person other than the Company or another
Wholly-Owned Subsidiary of the Company or (II) the issuance (other than
directors' qualifying shares), sale, transfer or other disposition of
shares
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of Capital Stock or other ownership interests (including by consolidation
or merger) of such Wholly-Owned Subsidiary to a Person other than the
Company or another such Wholly-Owned Subsidiary of the Company, the
provisions of this clause (iv) shall no longer be applicable to such
Indebtedness and such Indebtedness shall be deemed to have been incurred at
the time of any such issuance, sale, transfer or other disposition, as the
case may be;
(v) Indebtedness of the Company or its Restricted Subsidiaries
under any Interest Rate Protection Agreement or Currency Agreement to the
extent entered into to hedge any other Indebtedness permitted under this
Indenture;
(vi) Acquired Indebtedness to the extent the Company could have
incurred such Indebtedness in accordance with clause (i) above on the date
such Indebtedness became Acquired Indebtedness;
(vii) Indebtedness incurred by the Company or any of its
Restricted Subsidiaries constituting reimbursement obligations with respect
to letters of credit issued in the ordinary course of business, including,
without limitation, letters of credit in response to worker's compensation
claims or self-insurance;
(viii) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary of the Company providing for indemnification,
adjustment of purchase price, earn-out or other similar obligations, in
each case, incurred or assumed in connection with the disposition of any
business, assets or a Subsidiary of the Company;
(ix) Obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary
of the Company in the ordinary course of business;
(x) Indebtedness consisting of notes issued to employees, officers
or directors in connection with the redemption or repurchase of Capital
Stock held by such Persons in an aggregate amount not in excess of $10.0
million at any time outstanding;
(xi) Indebtedness consisting of take-or-pay obligations contained
in supply agreements entered into by the Company or its Restricted
Subsidiaries in the ordinary course;
(xii) Guarantees by the Company or any of its Restricted
Subsidiaries of Indebtedness of the Company or any Restricted Subsidiary
permitted to be incurred under
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another provision of the covenant; provided, that such Guarantee is
incurred at the same time as such other Indebtedness;
(xiii) Indebtedness incurred to renew, extend, refinance or refund
(collectively for purposes of this clause (xiii) to "refund") any
Indebtedness incurred pursuant to clauses (i) or (ii) above; provided, that
(I) such Indebtedness does not exceed the principal amount (or accreted
amount, if less) of Indebtedness so refunded plus the amount of any premium
required to be paid in connection with such refunding pursuant to the terms
of the Indebtedness refunded or the amount of any premium reasonably
determined by the Company as necessary to accomplish such refunding by
means of a tender offer, exchange offer, or privately negotiated
repurchase, plus the expenses of the Company or such Restricted Subsidiary
incurred in connection therewith and (II)(A) in the case of any refunding
of Indebtedness that is pari passu with the Securities, such refunding
Indebtedness is made pari passu with or subordinate in right of payment to
the Securities and, in the case of any refunding of Indebtedness that is
subordinate in right of payment to the Securities, such refunding
Indebtedness is subordinate in right of payment to the Securities on terms
no less favorable to the Holders than those contained in the Indebtedness
being refunded, (B) in either case, the refunding Indebtedness by its
terms, or by the terms of any agreement or instrument pursuant to which
such Indebtedness is issued does not have an Average Life that is less than
the remaining Average Life of the Indebtedness being refunded and does not
permit redemption or other retirement (including pursuant to any required
offer to purchase to be made by the Company or any of its Restricted
Subsidiaries) of such Indebtedness at the option of the holder thereof
prior to the final stated maturity of the Indebtedness being refunded,
other than a redemption or other retirement at the option of the holder of
such Indebtedness (including pursuant to a required offer to purchase made
by the Company or any of its Restricted Subsidiaries) which is conditioned
upon a change of control of the Company pursuant to provisions
substantially similar to those contained in Section 4.11 and (C)
Indebtedness of a Restricted Subsidiary may not be incurred to refund any
Indebtedness of the Company;
(xiv) Indebtedness of the Company under the Securities and the
Senior Subordinated Notes and the Exchange Senior Subordinated Notes;
(xv) the consummation of any Qualified Securitization Transaction;
(xvi) Attributable Indebtedness relating to any Sale/Leaseback
Transaction with respect to the purchase of tooling and related
manufacturing equipment in the ordinary course of business consistent with
past practices; and
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(xvii) Indebtedness of the Company or its Restricted Subsidiaries,
not otherwise permitted to be incurred pursuant to clauses (i) through
(xvi) above, which, together with any other outstanding Indebtedness
incurred pursuant to this clause (xvii), has an aggregate principal amount
not in excess of $100.0 million at any time outstanding.
After the Securities have been assigned an Investment Grade rating by
both Rating Agencies, and notwithstanding that the Securities may later cease to
have an Investment Grade rating, the Company will not be subject to the
provisions of this Section 4.9; provided, that no Default has occurred and is
continuing at the time the Securities have been assigned such rating.
SECTION 4.10 Waiver of Stay, Extension or Usury Laws.
The Company and each Subsidiary Guarantor covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive the
Company or such Subsidiary Guarantor from paying all or any portion of the
principal of or interest on the Securities as contemplated herein or in the
Securities, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company and each Subsidiary Guarantor hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.11 Change of Control.
Upon the occurrence of a Change of Control (the date of each such
occurrence being the "Change of Control Date"), the Company will notify the
Holders in writing of such occurrence and will commence an Offer to Purchase
(the "Change of Control Offer") all Securities then outstanding, in each case,
at a purchase price equal to 101% of the principal amount thereof, plus accrued
and unpaid interest, if any, to the Purchase Date.
Notice of a Change of Control shall be mailed by the Company to the
Holders not more than 30 days after any Change of Control Date at their last
registered addresses with a copy to the Trustee and the Paying Agent. The Change
of Control Offer shall remain open from the time of mailing for at least 20
Business Days and until 4:00 p.m., New York City time, on the Purchase Date.
The notice, which shall govern the terms of the Change of Control Offer, shall
include such disclosures as are required by law and shall state:
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(a) that the Change of Control Offer is being made pursuant to this
Section 4.11 and that all Securities will be accepted for payment;
(b) the purchase price (including the amount of accrued interest, if
any) for each Security and the Purchase Date;
(c) that any Security not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(d) that any Security accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Purchase Date unless
the Company shall default in the payment thereof;
(e) that Holders electing to have Securities purchased pursuant to a
Change of Control Offer will be required to surrender their Securities to
the Paying Agent at the address specified in the notice prior to 4:00 p.m.,
New York City time, on the Purchase Date and must complete any form letter
of transmittal proposed by the Company and acceptable to the Trustee and
the Paying Agent;
(f) that Holders of Securities will be entitled to withdraw their
election if the Paying Agent receives, not later than 4:00 p.m., New York
City time, on the Purchase Date, a facsimile transmission (confirmed by
overnight delivery of the original thereof) or letter setting forth the
name of the Holder, the principal amount of Securities the Holder delivered
for purchase, the Security certificate number (if any) and a statement that
such Holder is withdrawing his election to have such Securities purchased;
(g) that Holders whose Securities are purchased only in part will be
issued Securities equal in principal amount to the unpurchased portion of
the Securities surrendered;
(h) the instructions that Holders must follow in order to tender
their Securities; and
(i) the circumstances and relevant facts known to the Company
regarding such Change of Control.
On the Purchase Date, the Company shall (i) accept for payment
Securities or portions thereof tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent money sufficient to pay the purchase price of
all Securities or portions thereof so tendered and accepted and (iii) deliver to
the Trustee the Securities so accepted together with an Officers' Certificate
setting forth the Securities or portions thereof tendered to and
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accepted for payment by the Company. The Paying Agent shall promptly mail or
deliver to the Holders of Securities so accepted payment in an amount equal to
the purchase price, and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof. The
Company will publicly announce the results of the Change of Control Offer not
later than the third Business Day following the Purchase Date.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) under the Exchange Act, and any other securities
laws or regulations in connection with the purchase of Securities pursuant to a
Change of Control Offer. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section 4.11, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.11 by virtue
thereof.
SECTION 4.12 Limitation on Transactions with Affiliates.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to (a) sell, lease, transfer or otherwise dispose of any
of its property or assets to, (b) purchase any property or assets from, (c) make
any Investment in, or (d) enter into or amend or extend any contract, agreement
or understanding with or for the benefit of, any Affiliate of the Company or of
any Subsidiary (an "Affiliate Transaction"), other than Affiliate Transactions
that are on terms that are fair and reasonable to the Company or such Restricted
Subsidiary of the Company and that are no less favorable to the Company or such
Restricted Subsidiary of the Company than those that could be obtained in a
comparable arm's-length transaction by the Company or such Restricted Subsidiary
of the Company from an unaffiliated party; provided, that if the Company or any
Restricted Subsidiary of the Company enters into an Affiliate Transaction or
series of Affiliate Transactions involving or having an aggregate value of more
than $20.0 million, a majority of the disinterested members of the Board of
Directors of the Company or a committee thereof shall, prior to the consummation
of such Affiliate Transaction, have determined (as evidenced by a resolution
thereof) that such Affiliate Transaction meets the foregoing standard. The
foregoing restrictions shall not apply to (a) any transaction between Restricted
Subsidiaries of the Company, or between the Company and any Restricted
Subsidiary of the Company if such transaction is not otherwise prohibited by the
terms of the Indentures, (b) transactions entered into pursuant to the terms of
the Master Intercompany Agreement and the Tax Allocation Agreement, (c)
transactions entered into in the ordinary course of business, (d) Qualified
Securitization Transactions, (e) reasonable fees and compensation paid to and
advances of expenses to and indemnity provided on behalf of officers, directors,
employees or consultants of the Company or any Subsidiary as determined in good
faith by the Com-
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pany's Board of Directors or senior management; (f) any agreement as in effect
as of the Issue Date or any amendment thereto or any transaction contemplated
thereby (including pursuant to any amendment thereto) or in any replacement
agreement thereto so long as any such management or replacement agreement is not
more disadvantageous to the Holders in any material respect than the original
agreement as in effect on the Issue Date; (g) Restricted Payments permitted by
this Indenture; (h) loans or advances to employees or consultants in the
ordinary course of business and consistent with past practices in an aggregate
amount outstanding at any time not to exceed $10.0 million; (i) joint venture
partners or purchasers or sellers of goods or services, in each case in the
ordinary course of business (including, without limitation, pursuant to joint
venture agreements) and otherwise in compliance with the terms of this Indenture
which are fair to the Company or its Restricted Subsidiaries, in the reasonable
determination of the senior management of the Company, or are on terms at least
as favorable as might reasonably have been obtained at such time from an
unaffiliated party; and (j) any employment or compensation arrangement entered
into by the Company or any of its Restricted Subsidiaries in the ordinary course
of business that is not otherwise prohibited by the Indenture.
After the Securities have been assigned an Investment Grade rating by
both Rating Agencies, and notwithstanding that the Securities may later cease to
have an Investment Grade rating, the Company will not be subject to the
provisions of this Section 4.12; provided, that no Default has occurred and is
continuing at the time the Securities have been assigned such rating.
SECTION 4.13 Limitation on Liens.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, create, incur, assume or suffer to exist any Liens
upon any of their respective properties or assets (including, without
limitation, any asset in the form of the right to receive payments, fees or
other consideration or benefits) whether owned on the Issue Date or acquired
after the Issue Date, other than (i) Liens granted by the Company on property or
assets of the Company securing Indebtedness of the Company that is permitted by
this Indenture and that is pari passu with the Securities; provided, that the
Securities are secured on an equal and ratable basis with such Liens; (ii) Liens
granted by the Company on property or assets of the Company securing
Indebtedness of the Company that is permitted by this Indenture and that is
subordinated to the Securities, provided that the Securities are secured by
Liens ranking prior to such Liens; (iii) Permitted Liens; (iv) Liens in respect
of Acquired Indebtedness permitted by this Indenture, provided, that the Liens
in respect of such Acquired Indebtedness secured such Acquired Indebtedness at
the time of the incurrence of such Acquired Indebtedness and such Liens and the
Acquired Indebtedness were not incurred by the Company or by the Person being
acquired or from whom the assets were acquired in connection with, or in
anticipation of, the incurrence of such Acquired
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Indebtedness by the Company, and provided, further that such Liens in respect of
such Acquired Indebtedness do not extend to or cover any property or assets of
the Company or of any Restricted Subsidiary of the Company other than the
property or assets that secured the Acquired Indebtedness prior to the time such
Indebtedness became Acquired Indebtedness of the Company; (v) Liens granted in
connection with any Qualified Securitization Transaction; (vi) Liens arising
from claims of holders of Indebtedness against funds held in a defeasance trust
for the benefit of such holders; and (vii) Liens on property or assets of the
Company or any Restricted Subsidiary securing Indebtedness permitted by this
Indenture not to exceed the greater of (A) $100.0 million and (B) the sum of (1)
85.0% of the total book value of accounts receivable and (2) 50.0% of the total
book value of inventory, in each case as reflected on the Company's most recent
consolidated financial statements prepared in accordance with GAAP.
SECTION 4.14 Limitation on Payment Restrictions Affecting Restricted
Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or suffer to exist or
allow to become effective any consensual encumbrance or restriction of any kind
on the ability of any such Restricted Subsidiary to (i) pay dividends, in cash
or otherwise, or make other payments or distributions on its Capital Stock or
any other equity interest or participation in, or measured by, its profits,
owned by the Company or by any Restricted Subsidiary of the Company, or make
payments on any Indebtedness owed to the Company or to any Restricted Subsidiary
of the Company; (ii) make loans or advances to the Company or to any Restricted
Subsidiary of the Company; or (iii) transfer any of their respective property or
assets to the Company or to any Restricted Subsidiary of the Company, except for
such encumbrances or restrictions existing under or by reason of (A) applicable
law or regulations; (B) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of any Restricted
Subsidiary of the Company; (C) Indebtedness or any other contractual
requirements (including pursuant to any corporate governance documents in the
nature of a charter or by-laws) of a Securitization Subsidiary arising in
connection with a Qualified Securitization Transaction, provided, that any such
encumbrances and restrictions apply only to such Securitization Subsidiary; (D)
any agreement in effect on the Issue Date as any such agreement is in effect on
such date; (E) any agreement relating to any Indebtedness incurred by such
Restricted Subsidiary prior to the date on which such Restricted Subsidiary
became a Subsidiary of the Company and outstanding on such date and not incurred
in anticipation or contemplation of becoming a Subsidiary of the Company,
provided, such encumbrance or restriction shall not apply to any assets of the
Company or its Restricted Subsidiaries other than such Restricted Subsidiary;
and (F) the Indentures.
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After the Securities have been assigned an Investment Grade rating by
both Rating Agencies, and notwithstanding that the Securities may later cease to
have an Investment Grade rating, the Company will not be subject to the
provisions of this Section 4.14; provided, that no Default has occurred and is
continuing at the time the Securities have been assigned such rating.
SECTION 4.15 Limitation on Guarantees by Restricted Subsidiaries.
The Company shall not cause or permit any of its Restricted
Subsidiaries, directly or indirectly, to guarantee the payment of any
Indebtedness of the Company unless such Restricted Subsidiary of the Company
simultaneously executes and delivers a supplemental indenture (the substantive
provisions of which are in Exhibit B hereto) to this Indenture providing for the
guarantee of payment of the Securities (a "Subsidiary Guarantee") by such
Restricted Subsidiary of the Company (a "Subsidiary Guarantor"); provided, any
guarantee by a Subsidiary Guarantor of such other Indebtedness (A) (1) (X) is
unsecured or (Y) is secured and (I) in the case of any such guarantee of
Indebtedness of the Company ranking pari passu with the Securities, the
Subsidiary Guarantee is secured equally and ratably with any Liens securing such
guarantee and (II) in the case of any such guarantee of Indebtedness of the
Company subordinated to the Securities, the Subsidiary Guarantee is secured on a
basis ranking prior to the Liens securing such guarantee and (2) (X) in the case
of any such guarantee of Indebtedness of the Company subordinated or junior to
the Securities (whether pursuant to its terms or by operation of law), such
guarantee is subordinated pursuant to a written agreement to the Subsidiary
Guarantee at least to the same extent and in the same manner as such other
Indebtedness is subordinated to the Securities, or (Y) the Subsidiary Guarantee
is not subordinated or junior to any Indebtedness of such Subsidiary Guarantor;
and (B) such Subsidiary Guarantor waives, and agrees it will not in any manner
whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Subsidiary of the Company as a result of any payment by it under
such Subsidiary Guarantees. Notwithstanding the foregoing, any Subsidiary
Guarantee shall provide by its terms that it shall be automatically and
unconditionally released and discharged upon either (A) the unconditional
release or discharge of such Subsidiary Guarantor's guarantees of all other
Indebtedness of the Company (other than a release resulting from payment under
such Subsidiary Guarantor's guarantees) or (B) any sale, exchange or transfer,
to any Person not an Affiliate of the Company, of all (but not less than all) of
the Capital Stock of such Subsidiary Guarantor, or all or substantially all of
the assets of such Subsidiary Guarantor, pursuant to a transaction which is in
compliance with all of the terms of this Indenture.
The supplemental indenture shall supplement this Indenture by, among
other things, creating an additional Article XI applicable to such Subsidiary
Guarantor and any other Subsidiary Guarantors in the form set forth in Exhibit B
hereto and, in connection
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with the execution and delivery of the supplemental indenture, such Subsidiary
Guarantor shall execute and deliver a Guarantee substantially in the form of
Exhibit C hereto. Such Article XI shall not become effective until the
provisions of Section 12.2 have been complied with.
Notwithstanding the foregoing, any Subsidiary Guarantee will be
subject to release under the conditions described in Section 11.4 of Exhibit B
hereto.
SECTION 4.16 [Reserved]
SECTION 4.17 Limitation on Preferred Stock of Restricted
Subsidiaries.
The Indentures will provide that the Company will not cause or permit
any of its Restricted Subsidiaries to issue any Preferred Stock other than to
the Company or to another Restricted Subsidiary.
After the Securities have been assigned an Investment Grade rating by
both Rating Agencies, and notwithstanding that the Securities may later cease to
have an Investment Grade rating, the Company will not be subject to the
provisions of this Section 4.17; provided, that no Default has occurred and is
continuing at the time the Securities have been assigned such rating.
SECTION 4.18 Limitation on Restricted Payments.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to directly or indirectly, (i) declare or pay any
dividend, or make any distribution of any kind or character (whether in cash,
property or securities), in respect of any class of its Capital Stock or to the
holders thereof in their capacity as stockholders, excluding any (x) dividend or
distributions payable solely in shares of its Qualified Capital Stock or in
options, warrants or other rights to acquire its Qualified Capital Stock or (y)
in the case of any Restricted Subsidiary of the Company, dividends or
distributions payable to the Company or a Restricted Subsidiary of the Company;
(ii) purchase, redeem, or otherwise acquire or retire for value shares of
Capital Stock of the Company or a Restricted Subsidiary of the Company, any
securities convertible or exchangeable into shares of Capital Stock of the
Company or a Restricted Subsidiary of the Company or any options, warrants or
rights to purchase or acquire shares of Capital Stock of the Company or a
Restricted Subsidiary of the Company, excluding any such shares of Capital
Stock, options, warrants, rights or securities which are owned by the Company or
a Restricted Subsidiary of the Company; (iii) make any Investment (other than a
Permitted Investment) in, or payment on a guarantee of any obligation of, any
Person; or (iv) redeem, defease, repurchase, retire or
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otherwise acquire or retire for value, prior to any scheduled maturity,
repayment or sinking fund payment, Indebtedness which is subordinate in right of
payment to the Securities (each of the transactions described in clauses (i)
through (iv) (other than any exception to any such clause) being a "Restricted
Payment") if at the time thereof:
(1) an Event of Default, or an event that with the passing of time or
giving of notice, or both, would constitute an Event of Default, shall have
occurred and be continuing, or
(2) upon giving effect to such Restricted Payment, the Company could
not incur at least $1.00 of additional Indebtedness pursuant to the terms
of this Indenture described in clause (i) of Section 4.9, or
(3) upon giving effect to such Restricted Payment, the aggregate of
all Restricted Payments made on or after the Issue Date exceeds the sum
(without duplication) of: (a) 50% of cumulative Consolidated Net Income of
the Company (or, in the case cumulative Consolidated Net Income of the
Company shall be negative, less 100% of such deficit) for the period
(treated as an accounting period) from the Issue Date through the last day
of the Company's most recently ended fiscal quarter for which financial
statements are available, plus (b) 100% of the aggregate net cash proceeds
received after the Issue Date, including the fair market value of readily
marketable securities from the issuance of Qualified Capital Stock of the
Company and warrants, rights or options on Qualified Capital Stock of the
Company (other than in respect of any such issuance to a Subsidiary of the
Company) and the principal amount of Indebtedness of the Company or a
Subsidiary of the Company that has been converted into or exchanged for
Qualified Capital Stock of the Company which Indebtedness was incurred
after the Issue Date; plus (c) in the case of the disposition or repayment
of any Investment constituting a Restricted Payment made after the Issue
Date, an amount equal to the lesser of the return of capital with respect
to such Investment and the cost of such Investment, in either case, less
the cost of the disposition of such Investment; provided, that at the time
any such Investment is made the Company delivers to the Trustee a
resolution of the Board of Directors of the Company to the effect that, for
purposes of this Section 4.18, such Investment constitutes a Restricted
Payment made after the Issue Date; plus (d) an amount equal to the sum of
(i) the net reduction in Investments in Unrestricted Subsidiaries resulting
from the receipt of dividends, repayments of loans or advances or other
transfers of assets or proceeds from the disposition of Capital Stock or
other distributions or payments, in each case to the Company or any
Restricted Subsidiary from, or with respect to, interests in Unrestricted
Subsidiaries, and (ii) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of
an Unrestricted Subsidiary at the time such Unrestricted Subsidiary is
designated a
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Restricted Subsidiary; provided, that the foregoing sum shall not exceed,
in the case of any Unrestricted Subsidiary, the amount of Investments
previously made (and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary subsequent to the
Issue Date; plus (e) $25.0 million. For purposes of determining the amount
expended for Restricted Payments under this clause (3), property other than
cash shall be valued at its fair market value.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph will not prohibit (i) any dividend on any class
of Capital Stock of the Company or any of its Restricted Subsidiaries paid
within 60 days after the declaration thereof if, on the date when the dividend
was declared, the Company or any of its Restricted Subsidiaries, as the case may
be, could have paid such dividend in accordance with the provisions of this
Indenture, (ii) the renewal, extension, refunding or refinancing of any
Indebtedness otherwise permitted pursuant to the terms of this Indenture
described in clause (xiii) of Section 4.9, (iii) the exchange or conversion of
any Indebtedness of the Company or any of its Restricted Subsidiaries for or
into Qualified Capital Stock of the Company, (iv) any Restricted Payments,
including loans or other advances made pursuant to any employee benefit plans
(including plans for the benefit of directors) or employment agreements or other
compensation arrangements, in each case as approved by the Board of Directors of
the Company in its good faith judgment, (v) so long as no Default or Event of
Default has occurred and is continuing, any Investment made with the proceeds of
a substantially concurrent sale of Qualified Capital Stock of the Company;
provided, that the proceeds of such sale of Qualified Capital Stock shall not be
(and have not been) included in clause (3) of the preceding paragraph, (vi) the
redemption, repurchase, retirement or other acquisition of any Capital Stock of
the Company in exchange for or out of the net cash proceeds of the substantially
concurrent sale (other than to a Restricted Subsidiary of the Company) of
Qualified Capital Stock of the Company; provided, that the proceeds of such sale
of Capital Stock shall not be (and have not been) included in clause (3) of the
preceding paragraph, (vii) so long as no Event of Default has occurred and is
continuing, the redemption, repurchase, retirement or other acquisition of any
Subordinated Indebtedness of the Company in exchange for or out of the net cash
proceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company) of Qualified Capital Stock of the Company; provided, that the proceeds
of such sale of Qualified Capital Stock shall not be (and have not been)
included in clause (3) of the preceding paragraph, (viii) the purchase of Senior
Subordinated Notes pursuant to an Offer to Purchase required by Section 4.19 or
Section 4.11 of the Senior Subordinated Note Indenture; provided, that no such
purchase shall be permitted until all Securities validly tendered pursuant to
the applicable Offer to Purchase in respect of the Securities shall have been
purchased by the Company, (ix) the redemption, retirement or repurchase of the
Company's outstanding Series G Convertible Preferred Stock out of the net
proceeds of the Offerings, (x) Investments in Navistar Financial Corporation
made
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pursuant to the Support Agreement to the extent required by the Support
Agreement, (xi) the declaration and payment of dividends to holders of any class
of Preferred Stock issued after the Issue Date; provided, that at the time of
the issuance of such Preferred Stock, the Company, after giving pro forma effect
to such issuance, would have been able to incur at least $1.00 of additional
Indebtedness pursuant to the terms of the Indentures described in clause (i) of
Section 4.9; (xii) so long as no Event of Default has occurred and is
continuing, any purchase or redemption or other retirement for value of Capital
Stock of the Company required pursuant to any shareholders agreement, management
agreement or employee stock option agreement in accordance with the provisions
of any such arrangement in an amount not to exceed $10.0 million in the
aggregate; (xiii) repurchases of Capital Stock deemed to occur upon the exercise
of stock options if such Capital Stock represents a portion of the exercise
price thereof; (xiv) payments not to exceed $500,000 per annum in the aggregate
to enable the Company to make payments to holders of its Capital Stock in lieu
of issuance of fractional shares of its Capital Stock; (xv) so long as no Event
of Default has occurred and is continuing, the repurchase of any shares of Class
B Common Stock or Common Stock held by the Supplemental Trust; (xvi) so long as
no Event of Default has occurred and is continuing, the redemption of any stock
purchase rights under a rights plan in an aggregate amount not to exceed $1.0
million; and (xvii) so long as no Event of Default has occurred and is
continuing, Investments in Permitted Joint Ventures and designations of
Restricted Subsidiaries as Unrestricted Subsidiaries; provided, that after
giving pro forma effect to such Investment, the Company could incur at least
$1.00 of additional Indebtedness pursuant to the terms of this Indenture
described in clause (i) of Section 4.9. Each Restricted Payment described in
clauses (i), (iv), (x), (xii) and (xv) of the previous sentence shall be taken
into account (and the Restricted Payments described in the remaining clauses
shall not be taken into account) for purposes of computing the aggregate amount
of all Restricted Payments made pursuant to clause (3) of the preceding
paragraph.
After the Securities have been assigned an Investment Grade rating by
both Rating Agencies, and notwithstanding that the Securities may later cease to
have an Investment Grade rating, the Company will not be subject to the
provisions of this Section 4.18; provided, that no Default has occurred and is
continuing at the time the Securities have been assigned such rating.
SECTION 4.19 Limitation on Certain Asset Dispositions.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, make one or more Asset
Dispositions unless: (i) the Company or the Restricted Subsidiary, as the case
may be, receives consideration for such Asset Disposition at least equal to the
fair market value of the assets sold or disposed of (as determined in good faith
by the Company); (ii) not less than 75% of the consideration for the disposition
consists of cash or readily marketable cash equivalents or the assumption of
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Indebtedness (other than non-recourse Indebtedness or any Indebtedness
subordinated to the Securities) of the Company or such Restricted Subsidiary or
other obligations relating to such assets (and release of the Company or such
Restricted Subsidiary from all liability on the Indebtedness or other
obligations assumed); and (iii) all Net Available Proceeds, less any amounts
invested or committed to be invested within 360 days of such Asset Disposition
in assets related to the business of the Company (including capital expenditures
or the Capital Stock of another Person (other than the Company or any Person
that is a Restricted Subsidiary of the Company immediately prior to such
investment); provided, that immediately after giving effect to any such
investment (and not prior thereto) such Person shall be a Restricted Subsidiary
of the Company), are applied, on or prior to the 360th day after such Asset
Disposition (unless and to the extent that the Company shall determine to make
an Offer to Purchase), either to (A) the permanent reduction and prepayment of
any Indebtedness of the Company (other than Indebtedness which is expressly
subordinate to the applicable issue of Notes) then outstanding (including a
permanent reduction of commitments in respect thereof) or (B) the permanent
reduction and repayment of any Indebtedness of any Restricted Subsidiary of the
Company then outstanding (including a permanent reduction of commitments in
respect thereof). The 361st day after such Asset Disposition shall be deemed to
be the "Asset Sale Offer Trigger Date," and the amount of Net Available Proceeds
from Asset Dispositions otherwise subject to the preceding provisions not so
applied or as to which the Company has determined not to so apply shall be
referred to as the "Unutilized Net Available Proceeds." Within fifteen days
after the Asset Sale Offer Trigger Date, the Company shall make an Offer to
Purchase the outstanding applicable issue of Securities at a purchase price in
cash equal to 100% of their principal amount plus any accrued and unpaid
interest thereon to the Purchase Date. Notwithstanding the foregoing, the
Company may defer making any Offer to Purchase outstanding Securities until
there are aggregate Unutilized Net Available Proceeds equal to or in excess of
$25.0 million (at which time, the entire Unutilized Net Available Proceeds, and
not just the amount in excess of $25.0 million, shall be applied as required
pursuant to this paragraph). Pending application of the Unutilized Net
Available Proceeds pursuant to this covenant, such Unutilized Net Available
Proceeds shall be invested in Permitted Investments of the types described in
clauses (i), (ii) and (iii) of the definition of "Permitted Investments."
If any Indebtedness of the Company or any of its Restricted
Subsidiaries ranking pari passu with the Securities requires that prepayment of,
or an offer to prepay, such Indebtedness be made with any Net Available
Proceeds, the Company may apply such Net Available Proceeds pro rata (based on
the aggregate principal amount of the Securities then outstanding and the
aggregate principal amount (or accreted value, if less) of all such other
Indebtedness then outstanding) to the making of an Offer to Purchase the
Securities in accordance with the foregoing provisions and the prepayment or the
offer to prepay such pari passu Indebtedness. Any remaining Net Available
Proceeds following the completion
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of the required Offer to Purchase may be used by the Company for any other
purpose (subject to the other provisions of the Indentures) and the amount of
Net Available Proceeds then required to be otherwise applied in accordance with
this covenant shall be reset to zero, subject to any subsequent Asset
Disposition. These provisions will not apply to a transaction consummated in
compliance with Article V.
Notwithstanding the foregoing, the provisions of this covenant shall
not apply to any Sale/Leaseback Transaction with respect to the purchase of
tooling and related manufacturing equipment in the ordinary course of business
consistent with past practices.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act and any violation of the provisions of this
Indenture relating to such Offer to Purchase occurring as a result of such
compliance shall not be deemed an Event of Default or an event that with the
passing of time or giving of notice, or both, would constitute an Event of
Default.
After the Securities have been assigned an Investment Grade rating by
both Rating Agencies, and notwithstanding that the Securities may later cease to
have an Investment Grade rating, the Company will not be subject to the
provisions of this Section 4.19; provided, that no Default has occurred and is
continuing at the time the Securities have been assigned such rating.
SECTION 4.20 Limitation on Sale/Leaseback Transactions.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, enter into any Sale/Leaseback Transaction with respect to any
property unless (i) the Company or such Restricted Subsidiary would be entitled
to (A) incur Indebtedness in an amount equal to the Attributable Indebtedness
with respect to such Sale/Leaseback Transaction pursuant to clause (i) of
Section 4.9 and (B) create a Lien on such property securing such Attributable
Indebtedness without securing the Securities pursuant to Section 4.13 and (ii)
the net proceeds received by the Company or any Restricted Subsidiary in
connection with such Sale/Leaseback Transaction are at least equal to the fair
value (as determined by the Board of Directors) of such property and (iii) the
Company applies the proceeds of such transaction in compliance with Section
4.19. Notwithstanding the foregoing, the provisions of this covenant shall not
prohibit the Company or any Restricted Subsidiary from entering into any
Sale/Leaseback Transaction with respect to the purchase of tooling and related
manufacturing equipment in the ordinary course of business consistent with past
practices.
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After the Securities have been assigned an Investment Grade rating by
both Rating Agencies, and notwithstanding that the Securities may later cease to
have an Investment Grade rating, the Company will not be subject to the
provisions of this Section 4.20; provided, that no Default has occurred and is
continuing at the time the Securities have been assigned such rating.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 Merger, Consolidation, Etc.
The Company will not, in a single transaction or series of related
transactions, consolidate or merge with or into, or sell, assign, transfer,
lease, convey or otherwise dispose of (and the Company will not cause or permit
any of its Restricted Subsidiaries to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's and its
Restricted Subsidiaries' assets (determined on a consolidated basis for the
Company and its Restricted Subsidiaries) to any Person or adopt a Plan of
Liquidation unless: (i) either (1) the Company shall be the surviving or
continuing corporation or (2) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or the Person which
acquires by conveyance, transfer or lease the properties and assets of the
Company and its Restricted Subsidiaries substantially as an entirety or in the
case of a Plan of Liquidation, or Person to which assets of the Company and its
Restricted Subsidiaries have been transferred (x) shall be a corporation,
limited liability company or partnership organized and validly existing under
the laws of the United States or any State thereof or the District of Columbia
and (y) shall expressly assume, by supplemental indenture (in form and substance
satisfactory to the Trustee), executed and delivered to the Trustee, the due and
punctual payment of the principal of, and premium, if any, and interest on all
of the Securities and the performance of every covenant of the Securities and
this Indenture on the part of the Company to be performed or observed; (ii)
immediately after giving effect to such transaction and the assumption
contemplated by clause (i)(2)(y) above (including giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction), the Company (in the case of
clause (1) of the foregoing clause (i)) or such Person (in the case of clause
(2) thereof) could incur at least $1.00 of additional Indebtedness pursuant to
clause (i) of Section 4.9; (iii) immediately before and after giving effect to
such transaction and the assumption contemplated by clause (i)(2)(y) above
(including giving effect to any Indebtedness and Acquired Indebtedness incurred
or anticipated to be incurred in connection with or in respect of the
transaction) no Default and no Event of Default shall have occurred or be
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continuing (subject, in the case of the Securities, to the applicability of
Section 4.8 herein); and (iv) the Company or such Person shall have delivered to
the Trustee (A) an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease or Plan of
Liquidation and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this provision and that
all conditions precedent under this Indenture relating to such transaction have
been satisfied and (B) a certificate from the Company's independent certified
public accountants stating that the Company has made the calculations required
by clause (ii) above in accordance with the terms of this Indenture.
Notwithstanding the foregoing, (x) a Restricted Subsidiary of the Company may
consolidate with, or merge with or into, or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its assets to, the
Company or another Restricted Subsidiary of the Company without complying with
clause (ii) of the above, (y) a series of transactions involving the sale of
Receivables or interests therein by a Securitization Subsidiary in connection
with a Qualified Securitization Transaction shall not be deemed to be the sale
of all or substantially all of the Company's assets to the extent such
transactions are consummated in the ordinary course of business and (z) the
provisions of clause (i) above shall not prohibit the Company or any Restricted
Subsidiary from selling, assigning, transferring, leasing, conveying or
otherwise disposing of all or substantially all of its assets to a Permitted
Joint Venture in a transaction entered into in compliance with Section 4.18.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
Upon any such consolidation, merger, conveyance, lease or transfer in
accordance with the foregoing, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, lease or
transfer is made will succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor had been named as the Company therein, and thereafter (except in
the case of a sale, assignment, transfer, lease, conveyance or other
disposition) the predecessor corporation will be relieved of all further
obligations and covenants under this Indenture and the Securities.
SECTION 5.2 Successor Entity Substituted.
Upon any consolidation or merger, or any conveyance, lease or transfer
of all or substantially all of the assets of the Company in accordance with
Section 5.1, the suc-
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cessor Person formed by such consolidation or into which the Company is merged
or to which such conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; and thereafter (except in the case of a sale, assignment,
transfer, conveyance, lease or other disposition) the Company shall be
discharged from all obligations and covenants under this Indenture and the
Securities.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default.
(a) The following are "Events of Default" under this Indenture:
(i) default in the payment of principal of, or premium, if any,
on the Securities when due at maturity, upon repurchase, upon acceleration
or otherwise, including, without limitation, failure of the Company to
repurchase the Securities on the date required following a Change of
Control Triggering Event; or
(ii) default in the payment of any installment of interest on the
Securities when due and continuance of such Default for 30 days or more; or
(iii) failure to observe, perform or comply with any of the
provisions described in Section 5.1; or
(iv) default (other than a default set forth in clauses (i), (ii)
and (iii) above) in the performance of, or breach of, any other covenant or
warranty of the Company or of any Restricted Subsidiary in this Indenture
or in the Securities and failure to remedy such default or breach within a
period of 30 days after written notice from the Trustee or the Holders of
at least 25% in aggregate principal amount of the then outstanding
Securities; or
(v) default under 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 Subsidiary of the
Company (or the payment of which is guaranteed by the Company or any
Restricted Subsidiary of the Company), which default results in the
acceleration of such Indebtedness prior to its express maturity and the
principal amount of any such Indebtedness, together with
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the principal amount of any other such Indebtedness the maturity of which
has been so accelerated, aggregates $20.0 million or more and such
acceleration has not been rescinded or annulled or such Indebtedness
discharged in full within 30 days; or
(vi) the entry by a court of competent jurisdiction of one or
more judgments, orders or decrees against the Company or any Subsidiary of
the Company or any of their respective property or assets in an aggregate
amount in excess of $20.0 million, which judgments, orders or decrees have
not been vacated, discharged, satisfied or stayed pending appeal within 30
days from the entry thereof and with respect to which legal enforcement
proceedings have been commenced; or
(vii) the Company or any Material Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding, or
(B) consents to the entry of an order for relief against it
in an involuntary case or proceeding, or
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors, or
(E) files an answer or consent seeking reorganization or
relief, or
(F) shall admit in writing its inability to pay its debts
generally; or
(viii) 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 Material
Subsidiaries in an involuntary case or proceeding, or
(B) appoints a Custodian of the Company or any of its
Material Subsidiaries for all or substantially all of its properties,
or
(C) orders the liquidation of the Company or any of its
Material Subsidiaries, and in each case the order or decree remains
unstayed and in effect for 60 days.
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(b) For purposes of this Section 6.1, the term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official
charged with maintaining possession or control over property for one or more
creditors.
SECTION 6.2 Acceleration.
If an Event of Default (other than an Event of Default relating to the
Company and specified in clauses (vii) or (viii) of Section 6.1(a)) occurs and
is continuing, the Trustee or Holders of at least 25% in aggregate principal
amount of the then outstanding Securities may, by written notice to the Company
(and to the Trustee, if given by the Holders), and the Trustee shall upon the
request of Holders of not less than 25% in aggregate principal amount of the
outstanding Securities, by written notice to the Company, declare the unpaid
principal of, premium, if any, and accrued and unpaid interest on all the
Securities then outstanding to be due and payable immediately, and the same
shall become immediately due and payable. If an Event of Default relating to
the Company and specified in clauses (vii) or (viii) of Section 6.1(a) occurs
and is continuing, the unpaid principal of, premium and accrued and unpaid
interest on all the Securities shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder. The Holders of, in the aggregate, at least a majority in principal
amount of the then outstanding Securities by notice to the Trustee may rescind
an acceleration and its consequences if all existing Events of Default (except
the nonpayment of principal and interest on the Securities that has become due
solely as a result of the acceleration of the Securities) have been cured or
waived and if the rescission would not conflict with any judgment or decree. No
such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
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SECTION 6.4 Waiver of Past Default.
Subject to Sections 6.7 and 9.2, the Holders of, in the aggregate, at
least a majority in principal amount of the then outstanding Securities by
notice to the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default or Event of Default specified in Section
6.1(a)(i) or (ii) or a Default or Event of Default in respect of any provision
hereof which cannot be modified or amended without the consent of the Holder so
affected pursuant to Section 9.2. When a Default or Event of Default is so
waived, it shall be deemed cured and cease to exist; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
SECTION 6.5 Control by Majority.
The Holders of a majority in principal amount of the then outstanding
Securities may (i) 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, including, without limitation, any remedies provided for
in Section 6.3, and (ii) direct the Trustee to notify each trustee under any
instrument governing the rights of holders of Indebtedness subordinated in right
of payment to the Securities for the purpose of effecting the payment blockage
provisions thereunder. The Trustee may refuse, however, to follow any direction
that conflicts with law, the Securities or this Indenture, or that the Trustee
determines may be unduly prejudicial to the rights of another Securityholder
(provided, however, that subject to Section 7.1, the Trustee shall have no duty
or obligation to ascertain whether or not such direction is unduly prejudicial
to such Securityholder), that may involve the Trustee in personal liability or
if the Trustee determines that it does not have adequate indemnification against
any loss or expense, provided that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
SECTION 6.6 Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(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 Securities make a written request to the Trustee to pursue a
remedy;
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(c) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 30 days after
receipt of the request; and
(e) during such 30-day period the Holders of at least a majority in
principal amount of the then outstanding Securities do not give the Trustee
a direction which is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Security, on or
after the respective due dates expressed in the Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of such Holder.
SECTION 6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a)(i) or (ii) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or any other obligor on the
Securities for the whole amount of principal and accrued interest remaining
unpaid, together with interest overdue on principal and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the Interest Rate 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 shall be entitled and empowered 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 Securityholders allowed in any judicial proceedings
relative to the Company or any of its Subsidiaries (or any other obligor upon
the Securities), its creditors or its property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims
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and to distribute the same, and any Custodian in any such judicial proceedings
is hereby authorized by each Securityholder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.7. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article VI, it
shall pay out such money in the following order:
First: to the Trustee for all costs and expenses of collection and for all
other amounts due under Section 7.7;
Second: to Holders for interest accrued on the Securities, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities for interest; and
Third: to Holders for principal amounts owing under the Securities,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7, or a suit by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the outstanding
Securities.
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SECTION 6.12 Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and
every remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.13 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article 6 or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 6.14 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee.
(a) If an Event of Default known to the Trustee 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 own affairs.
(b) Except during the continuance of an Event of Default:
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(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture or the TIA and no others and no
implied covenants or obligations shall be read into this Indenture against
the Trustee.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
in the case of any such certificate or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine such certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of
this Section 7.1.
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(iii) 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 Sections 6.2, 6.4 and 6.5.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.1.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
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SECTION 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document reasonably believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled during normal business hours and upon reasonable advance
notice to the Company to examine the books, records and premises of the
Company, personally or by agent or attorney.
(b) Before the Trustee acts or refrains from acting with respect to
any matter contemplated by this Indenture, it may require an Officers'
Certificate or an Opinion of Counsel, which shall conform to the provisions
of Section 10.5. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent (other
than the negligence or willful misconduct of an agent who is an employee of
the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith and without negligence which it reasonably believes
to be authorized or within its rights or powers conferred upon it by this
Indenture or the TIA.
(e) Before the Trustee acts or refrains from acting, it may consult
with counsel and the advice or opinion of such counsel as to matters of law
shall be full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
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(g) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty.
(h) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Securityholders unless such Securityholders shall have
offered to the Trustee security or indemnity reasonable to it against the
costs, expenses and liabilities that might be incurred by it in compliance
with such request or direction.
(i) Except for (i) a default under Sections 6.1(a)(i) or (ii) hereof,
or (ii) any other event of which the Trustee has "actual knowledge" and
which event, with the giving of notice or the passage of time or both,
would constitute an Event of Default under this Indenture, the Trustee
shall not be deemed to have notice of any default or Event of Default
unless specifically notified in writing of such event by the Company or the
Holders of not less than 25% in aggregate principal amount of the
Securities then outstanding; as used herein, the term "actual knowledge"
means the actual fact or statement of knowing, without any duty to make any
investigation with regard thereto.
SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual capacity or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company, or its Subsidiaries and Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the Securities or for
the use or application of any money received by any Paying Agent other than the
Trustee, and it shall not be responsible for any statement of the Company in
this Indenture or any other document in connection with the sale of the
Securities, or any statement in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.5 Notice of Defaults.
If a Default or an Event of Default with respect to the Securities
occurs and is continuing and the Trustee receives written notice of such Default
or Event of Default, the Trustee shall mail to each Securityholder notice of the
Default or Event of Default
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within 60 days after the occurrence thereof in accordance with TIA (S)313(c).
Except in the case of a Default or an Event of Default in payment of principal
of or interest on any Security, including on acceleration, and the failure to
make payment when required by Section 4.11, and except in the case of a failure
to comply with Article V hereof, the Trustee may withhold the notice to the
Securityholders for a period not to exceed 60 days if and so long as a committee
of its Trust Officers in good faith determines that withholding the notice is in
the interest of Securityholders.
SECTION 7.6 Reports by Trustee to Holders.
To the extent required by TIA (S)313(a), within 45 days after June 1
of each year commencing with 1998 and for as long as there are Securities
outstanding hereunder, the Trustee shall mail to each Securityholder the
Company's brief report dated as of such date that complies with TIA (S)313(a).
The Trustee also shall comply with TIA (S)313(b) and TIA (S)313(c) and (d). A
copy of such report at the time of its mailing to Securityholders shall be filed
with the SEC, if required, and each stock exchange, if any, on which the
Securities are listed.
The Company shall promptly notify the Trustee if the Securities become
listed on any stock exchange and the Trustee shall comply with TIA (S)313(d).
SECTION 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee, the Paying Agent and the
Registrar from time to time reasonable compensation for their respective
services rendered hereunder. The Trustee's, the Paying Agent's and the
Registrar's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee, the
Paying Agent and the Registrar upon request for all reasonable out-of-pocket
disbursements, expenses and advances (including reasonable fees and expenses of
counsel) incurred or made by each of them in connection with entering into this
Indenture the performance of its duties under this Indenture in addition to the
compensation for their respective services under this Indenture. Such expenses
shall include the reasonable compensation, out-of-pocket disbursements and
expenses of the Trustee's, the Paying Agent's and the Registrar's agents and
counsel.
The Company shall indemnify the Trustee, the Paying Agent and the
Registrar for, and hold each of them harmless against, any claim, demand,
expense (including but not limited to attorneys' fees and expenses), loss or
liability incurred by each of them arising out of or in connection with the
administration of this Indenture and their respective duties hereunder. Each of
the Trustee, the Paying Agent and the Registrar shall notify the Company
promptly of any claim asserted against it for which it may seek indemnity.
How-
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ever, failure by the Trustee, the Paying Agent or the Registrar to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
need not reimburse any expense or indemnify against any loss or liability
incurred by the Trustee, the Paying Agent or the Registrar through the
Trustee's, the Paying Agent's or the Registrar's, as the case may be, own
willful misconduct or negligence.
To secure the Company's payment obligations in this Section 7.7, each
of the Trustee, the Paying Agent and the Registrar shall have a lien prior to
the Securities on all money or property held or collected by it, in its capacity
as Trustee, Paying Agent or Registrar, as the case may be, except money or
property held in trust to pay principal of or interest on particular Securities.
Such lien shall survive the satisfaction and discharge of this Indenture.
When any of the Trustee, the Paying Agent and the Registrar incurs
expenses or renders services after an Event of Default specified in Section
6.1(a)(vii) or (viii) 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.
The Trustee may resign at any time by so notifying the Company in
writing, such resignation to be effective upon the appointment of a successor
Trustee. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Trustee in writing and may
appoint a successor Trustee with the Company's consent which consent shall not
be unreasonably withheld. 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;
(c) a receiver or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee (subject to the lien provided in Section 7.7), the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 25% in principal amount of then outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall be the successor Trustee, provided such corporation or national banking
association shall be otherwise qualified and eligible under this Article VII.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S)310(a)(1) and (2). The Trustee shall have a combined
capital and surplus of at least $200,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA
(S)310(b), provided that there shall be excluded from the operation of TIA
(S)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
(S)310(b)(1) are met. The provisions of TIA (S)310 shall apply to the Company,
as obligor of the Securities.
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SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA (S)311(a), excluding any creditor
relationship listed in TIA (S)311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S)311(a) to the extent indicated therein. The
provisions of TIA (S)311 shall apply to the Company as obligor on the
Securities.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.1 Termination of the Company's Obligations.
The Company's obligations under the Securities and this Indenture
shall terminate, and the obligations of any Subsidiary Guarantor shall
terminate, except those obligations referred to in the penultimate paragraph of
this Section 8.1, if all Securities previously authenticated and delivered
(other than destroyed, lost or stolen Securities which have been replaced or
paid or Securities for whose payment money has theretofore been deposited with
the Trustee or the Paying Agent in trust or segregated and held in trust by the
Company and thereafter repaid to the Company, as provided in Section 8.4) have
been delivered to the Trustee for cancellation and the Company has paid all sums
payable by it hereunder, or if:
(a) all Securities have otherwise become due and payable hereunder;
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the benefit
of the Holders for that purpose, cash or cash equivalents in such amount as
is sufficient without consideration of reinvestment of such interest, to
pay principal of, premium, if any, and interest on the outstanding
Securities to maturity or redemption, provided that the Trustee shall have
been irrevocably instructed to apply such cash or cash equivalents to the
payment of said principal, premium, if any, and interest with respect to
the Securities, and, provided, further, that from and after the time of
deposit, the money deposited shall not be subject to the rights of holders
of Senior Indebtedness of the Company or Guarantor Senior Indebtedness
pursuant to the provisions of Article XI or Article XII;
(c) no Default or Event of Default with respect to this Indenture or
the Securities shall have occurred and be continuing on the date of such
deposit or shall oc-
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cur as a result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any other instrument
to which the Company is a party or by which it is bound;
(d) the Company shall have paid all other sums payable by it
hereunder;
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of the Company's and each
Subsidiary Guarantor's obligation under the Securities and this Indenture
have been complied with. Such Opinion of Counsel shall also state that such
satisfaction and discharge does not result in a default under any Senior
Indebtedness of the Company (if then in effect) or any other agreement or
instrument then known to such counsel that binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.5, 2.6, 2.7, 2.8, 4.1, 4.2 and 7.7 and any Subsidiary Guarantor's
obligations in respect thereof shall survive until the Securities are no longer
outstanding. After the Securities are no longer outstanding, the Company's
obligations in Sections 7.7, 8.4 and 8.5 and any Subsidiary Guarantor's
obligations in respect thereof shall survive.
After such delivery or irrevocable deposit the Trustee upon request
shall acknowledge in writing the discharge of the Company's and any Subsidiary
Guarantor's obligations under the Securities and this Indenture except for those
surviving obligations specified above.
SECTION 8.2 Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option and at any time, with respect to
the Securities, elect to have either paragraph (b) or paragraph (c) below be
applied to the outstanding Securities upon compliance with the conditions set
forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company and any Subsidiary Guarantor shall
be deemed to have been released and discharged from its obligations with respect
to the outstanding Securities on the date the conditions set forth below are
satisfied (hereinafter, "legal defeasance"). For this purpose, such legal
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the outstanding Securities, which shall
thereafter be deemed to be "outstanding" only for the purposes of paragraph (c)
below and the other Sections of and matters under this Indenture referred to in
(i) and (ii) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the
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Company, shall execute proper instruments acknowledging the same), and Holders
of the Securities and the Subsidiary Guarantees and any amounts deposited under
paragraph (d) below shall cease to be subject to any obligations to, or the
rights of, any holder of Senior Indebtedness of the Company or Guarantor Senior
Indebtedness under Article XI or otherwise, except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Securities to receive solely from the trust fund
described in paragraph (d) below and as more fully set forth in such paragraph,
payments in respect of the principal of, premium, if any, and interest on such
Securities when such payments are due, (ii) the Company's obligations with
respect to such Securities under Sections 2.6, 2.7 and 4.2, and, with respect to
the Trustee, under Section 7.7 and any Subsidiary Guarantor's obligations in
respect thereof, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Section 8.2 and Section 8.5. Subject to
compliance with this Section 8.2, the Company may exercise its option under this
paragraph (b) notwithstanding the prior exercise of its option under paragraph
(c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article V and in Sections
4.5 through 4.9, 4.11 through 4.20 and Section 5.1 with respect to the
outstanding Securities on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"), and the Securities shall
thereafter be deemed to be not "outstanding" for the purpose of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder and Holders of the Securities and
the Subsidiary Guarantees and any amounts deposited under paragraph (d) below
shall cease to be subject to any obligations to, or the rights of, any holder of
Senior Indebtedness of the Company or Guarantor Senior Indebtedness under
Article XI or otherwise. For this purpose, such covenant defeasance means that,
with respect to the outstanding Securities, the Company and any Subsidiary
Guarantor may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.1(a) (iv), but, except as
specified above, the remainder of this Indenture and such Securities shall be
unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities:
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(i) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (x)
money in an amount or (y) direct non-callable obligations of, or non-
callable obligations guaranteed by, the United States of America for the
payment of which guarantee or obligation the full faith and credit of the
United States is pledged ("U.S. Government Obligations") maturing as to
principal, premium, if any, and interest in such amounts of money and at
such times as are sufficient without consideration of any reinvestment of
such interest, to pay principal of and interest on the outstanding
Securities not later than one day before the due date of any payment, or
(z) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge principal of, premium, if any, and interest on the
outstanding Securities on the Maturity Date or otherwise in accordance with
the terms of this Indenture and of such Securities, provided that the
Trustee (or other qualifying trustee) shall have received an irrevocable
written order from the Company instructing the Trustee (or other qualifying
trustee) to apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to the Securities;
(ii) no Default or Event of Default with respect to the
Securities or this Indenture shall have occurred and be continuing
immediately after giving effect to such deposit (or, insofar as Section
6.1(a)(vii) or (viii) is concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period); provided, however, that actions taken by the Company in connection
with the creation of the trust fund into which funds for the purpose of
defeasance of the Securities are deposited that are not in compliance with
Sections 4.9, 4.13 and 4.14 as a result of the incurrence of indebtedness
to create such trust fund deposit, in each case, shall not be deemed a
Default or Event of Default under this Indenture);
(iii) such legal defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest with respect to any Securities
of the Company or any Subsidiary Guarantor;
(iv) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default or Event of
Default under any agreement or instrument to which the Company or any
Subsidiary Guarantor is a party or by which it is bound;
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(v) in the case of an election under paragraph (b) above, the
Company shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that,
the Holders of the outstanding Securities will not recognize income, gain
or loss for Federal income tax purposes as a result of such legal
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such legal defeasance had not occurred;
(vi) in the case of an election under paragraph (c) above, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the outstanding Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred;
(vii) in the case of an election under either paragraph (b) or (c)
above, an Opinion of Counsel to the effect that, (x) the trust funds will
not be subject to any rights of any holders of other Indebtedness,
including, without limitation, Senior Indebtedness of the Company, and (y)
after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable Bankruptcy Law, provided that if a
court were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company, no opinion needs to be given
as to the effect of such laws on the trust funds except the following: (A)
assuming such trust funds remained in the Trustee's possession prior to
such court ruling to the extent not paid to Holders of Securities, the
Trustee will hold, for the benefit of the Holders of Securities, a valid
and enforceable security interest in such trust funds that is not avoidable
in bankruptcy or otherwise, subject only to principles of equitable
subordination, (B) the Holders of Securities will be entitled to receive
adequate protection of their interests in such trust funds if such trust
funds are used, and (C) no property, rights in property or other interests
granted to the Trustee or the Holders of Securities in exchange for or with
respect to any of such funds will be subject to any prior rights of any
other person, subject only to prior Liens granted under Section 364 of
Title 11 of the U.S. Bankruptcy Code (or any section of any other
Bankruptcy Law having the same effect), but still subject to the foregoing
clause (B); and
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(viii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that (x) all
conditions precedent provided for relating to either the legal defeasance
under paragraph (b) above or the covenant defeasance under paragraph (c)
above, as the case may be, have been complied with and (y) if any other
Indebtedness of the Company shall then be outstanding or committed, such
legal defeasance or covenant defeasance will not violate the provisions of
the agreements or instruments evidencing such Indebtedness.
(e) All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to paragraph (d) above in respect
of the outstanding Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (other than the Company or
any Affiliate of the Company) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of
principal, premium and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to paragraph (d) above or the principal, premium, if any, and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Securities.
Anything in this Section 8.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request,
in writing, by the Company any money or U.S. Government Obligations held by it
as provided in paragraph (d) above which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance.
SECTION 8.3 Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 8.1 and 8.2, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium, if any, and
interest on the Securities.
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SECTION 8.4 Repayment to Company or Subsidiary Guarantors.
Subject to Sections 7.7, 8.1 and 8.2, the Trustee shall promptly pay
to the Company, or if deposited with the Trustee by any Subsidiary Guarantor, to
such Subsidiary Guarantor, upon receipt by the Trustee of an Officers'
Certificate, any excess money, determined in accordance with Section 8.2, held
by it at any time. The Trustee and the Paying Agent shall pay to the Company or
any Subsidiary Guarantor, as the case may be, upon receipt by the Trustee or the
Paying Agent, as the case may be, of an Officers' Certificate, any money held by
it for the payment of principal, premium, if any, or interest that remains
unclaimed for two years after payment to the Holders is required (unless
otherwise provided under operation of law), provided that the Trustee and the
Paying Agent before being required to make any payment may, but need not, at the
expense of the Company cause to be published once in a newspaper of general
circulation in The City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that after a date specified
therein, which shall be at least 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company or any Subsidiary Guarantor, as the
case may be, Securityholders entitled to money must look solely to the Company
for payment as general creditors unless an applicable abandoned property law
designates another person, and all liability of the Trustee or Paying Agent with
respect to such money shall thereupon cease.
SECTION 8.5 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture 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, then
and only then the Company's and each Subsidiary Guarantor's, if any, obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had been made pursuant to this Indenture until such time as
the Trustee is permitted to apply all such money or U.S. Government Obligations
in accordance with this Indenture, provided that if the Company or the
Subsidiary Guarantors, as the case may be, has made any payment of principal of,
premium, if any, or interest on any Securities because of the reinstatement of
its obligations, the Company or the Subsidiary Guarantors, as the case may be,
shall be, subrogated to the rights of the holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
resolutions of its Board of Directors (copies of which shall be delivered to the
Trustee) and the Trustee may amend, waive or supplement this Indenture or the
Securities without notice to or consent of any Holder for any of the following
purposes:
(a) to cure any ambiguity, defect or inconsistency, provided that
such amendment or supplement does not adversely affect the rights of any
Holder;
(b) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(c) to comply with any requirements of the SEC under the TIA;
(d) to evidence the succession in accordance with Article V hereof of
another Person to the Company and the assumption by any such successor of
the covenants of the Company herein and in the Securities;
(e) to add any Subsidiary of the Company as a Subsidiary Guarantor
pursuant to the terms of Section 4.15 and Article XI;
(f) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the
Securities; or
(g) to make any other change that does not adversely affect the
rights of any Holder;
provided, however, that in making such change, the Trustee may rely upon an
Opinion of Counsel stating that such change does not adversely affect the rights
of any Holder.
SECTION 9.2 With Consent of Holders.
Subject to Section 6.7 and the provisions of this Section 9.2, the
Company, when authorized by resolution of its Board of Directors (copies of
which shall be delivered to the Trustee) and the Trustee may amend or supplement
this Indenture, the Securities or any Subsidiary Guarantee with the written
consent of the Holders of at least a majority in
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principal amount of the Securities then outstanding. Subject to Section 6.7 and
the provisions of this Section 9.2, the Holders of, in the aggregate, at least a
majority in principal amount of the then outstanding Securities affected may
waive compliance by the Company and any Subsidiary Guarantor with any provision
of this Indenture, the Securities or any Subsidiary Guarantee without notice to
any other Securityholder. However, without the consent of each Securityholder
affected, an amendment, supplement or waiver, including a waiver pursuant to
Section 6.4, may not:
(a) reduce the aggregate principal amount of Securities the Holders
of which must consent to an amendment, supplement or waiver of any
provision of or with respect to this Indenture, the Securities or any
Subsidiary Guarantee; or
(b) reduce the rate of, change the method of calculation of, or
extend the time for, payment of interest, including default interest, on
any Security; or
(c) reduce the principal of or premium on or change the Stated
Maturity of any Security or alter the repurchase provisions with respect
thereto; or
(d) make the principal of, or interest on, any Security payable in
money other than as provided herein, or
(e) make any change in provisions relating to waivers of defaults,
the ability of Holders to enforce their rights under this Indenture or in
the matters discussed in clauses (a) through (h); or
(f) waive a default in the payment of the principal of, interest on,
or repurchase payment required hereunder with respect to, any Security,
including, without limitation, a default to make a payment when required
upon a Change of Control; or
(g) adversely affect the ranking of the Securities or any Subsidiary
Guarantee or release any Subsidiary Guarantor from any of its obligations
under its Subsidiary Guarantee in this Indenture other than in compliance
with Section 11.4 of Exhibit B hereto;
(h) after the Company's obligation to purchase Securities arises
thereunder, amend, modify or change the obligation of the Company to make
and consummate a Change of Control Offer in the event of a Change of
Control or waive any default in the performance thereof or modify any of
the provisions or definitions with respect to such offers.
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It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
Notwithstanding the foregoing, no amendment shall modify any provision of this
Indenture so as to affect adversely the rights of any holder of Senior
Indebtedness of the Company or Guarantor Senior Indebtedness to the benefits of
the subordination provisions under this Indenture without the consent of such
holder.
SECTION 9.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall be set forth in a supplemental indenture that complies with the TIA as
then in effect.
SECTION 9.4 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same debt
as the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security. Such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the amendment, supplement or waiver becomes effective. Notwithstanding the
above, nothing in this paragraph shall impair the right of any Securityholder
under (S) 316(b) of the TIA.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver which record date shall be at least 10 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the second and third sentences of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. Such
consent shall be effective only for actions taken within 90 days after such
record date.
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After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder unless it makes a change described in any of clauses
(a) through (h) of Section 9.2. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it.
SECTION 9.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee shall (in accordance with the specific written direction of the
Company) request the Holder of the Security to deliver it to the Trustee. The
Trustee shall (in accordance with the specific direction of the Company) place
an appropriate notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make
the appropriate notation or issue a new Security shall not affect the validity
and effect of such amendment, supplement or waiver.
SECTION 9.6 Trustee To Sign Amendments, Etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article IX if the amendment, supplement or waiver does not
adversely affect the rights, duties or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing any amendment, supplement or
waiver, the Trustee shall be entitled to receive, if requested, an indemnity
reasonably satisfactory to it and to receive, and shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
the execution of any amendment, supplement or waiver authorized pursuant to this
Article IX is authorized or permitted by this Indenture and that it constitutes
the legal, valid and binding obligation of the Company and, if applicable, the
Subsidiary Guarantors, subject to the customary exceptions.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act Controls.
The provisions of TIA (S)(S)310 through 317 that impose duties on any
person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
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If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by the above paragraph, the imposed duties shall control.
SECTION 10.2 Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by first-class mail or by telecopier, followed
by first-class mail, or by overnight service guaranteeing next-day delivery,
addressed as follows:
(a) if to the Company:
Navistar International Corporation
000 Xxxxx Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier Number: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopier Number: (000) 000-0000
(b) if to the Trustee:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Division/X.X. Xxxxxxx
Telecopier Number: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
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Any notice or communication mailed to a Securityholder, including any
notice delivered in connection with TIA (S)310(b), TIA (S)313(c), TIA (S)314(a)
and TIA (S)315(b), shall be mailed to such Holder, first-class postage prepaid,
at his address as it appears on the registration books of the Registrar and
shall be sufficiently given to such Holder if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received by an officer in the corporate trust administration department of
the Trustee, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 10.3 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA (S)312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other Person shall
have the protection of TIA (S)312(c).
SECTION 10.4 Certificate and Opinion of Counsel as to Conditions
Precedent.
Upon any request or application by the Company or any Subsidiary
Guarantor to the Trustee to take any action under this Indenture, the Company or
any Subsidiary Guarantor shall furnish to the Trustee at the request of the
Trustee (a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with (which officer signing such certificate
may rely, as to matters of law, on an Opinion of Counsel), (b) an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee stating
that, in the opinion of counsel, all such conditions have been complied with
(which counsel, as to factual matters, may rely on an Officers' Certificate) and
(c) where applicable, a certificate or opinion by an independent certified
public accountant satisfactory to the Trustee that complies with TIA (S)314(c).
SECTION 10.5 Statements Required in Certificate and Opinion of
Counsel.
Each certificate and Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
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(a) a statement that the Person making such certificate or rendering
such Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or Opinion of Counsel 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.
SECTION 10.6 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at a meeting of Securityholders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 10.7 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 10.8 Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE, THE
SECURITIES AND THE SUBSIDIARY GUARANTEES WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. THE COMPANY AND EACH SUBSIDIARY GUARANTOR AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES AND THE
SUBSIDIARY GUARANTEES.
SECTION 10.9 No Recourse Against Others.
A trustee, director, officer, employee, stockholder or beneficiary, as
such, of the Company or any Subsidiary Guarantor shall not have any liability
for any obligations of the Company or any Subsidiary Guarantor under the
Securities or this Indenture or for any
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claim based on, in respect of or by reason of such obligations or their
creation. Each Security holder by accepting a Security waives and releases all
such liability.
SECTION 10.10 Successors.
All agreements of the Company or any Subsidiary Guarantor in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 10.11 Counterparts.
The parties may sign any number of counterparts of this Indenture.
Each such counterpart shall be an original, but all of them together represent
the same agreement.
SECTION 10.12 Severability.
In case any provision in this Indenture, the Securities or in any
Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and a Holder shall have no claim therefor against
any party hereto.
SECTION 10.13 Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, and are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 10.14 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or of any Subsidiary Guarantor or any of their
respective Subsidiaries. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
SECTION 10.15 Benefits of Indenture.
Nothing in this Indenture, in the Securities or in any Subsidiary
Guarantee, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture, the Securities or in
any Subsidiary Guarantee.
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SECTION 10.16 Independence of Covenants.
All covenants and agreements in this Indenture, the Securities and the
Subsidiary Guarantees shall be given independent effect so that if any
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
NAVISTAR INTERNATIONAL
CORPORATION,
as Issuer
By:/s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: VICE PRESIDENT & TREASURER
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
By:/s/ X. XXXXXXXXX
----------------------------
Name: X. XXXXXXXXX
Title: VICE PRESIDENT
Exhibit A
(FORM OF FACE OF SECURITY)
No. [ ] $ [ ]
CUSIP No.
7% SENIOR NOTE DUE 2003
NAVISTAR INTERNATIONAL CORPORATION promises to pay
to [ ] or registered assigns the
principal sum of[ ] Dollars on
February 1, 2003.
Interest Payment Dates: February 1, August 1 and at maturity
Record Dates: January 15, July 15 and 15 days prior to maturity
By:____________________________
Authorized Signature
By:____________________________
Authorized Signature
Dated: February 4, 1998
Certificate of Authentication
This is one of the 7% Senior Notes due 2003 referred to in the within-
mentioned indenture.
XXXXXX TRUST AND SAVINGS BANK, as Trustee
By:____________________________
Authorized Signature
A-1
(FORM OF REVERSE OF SECURITY)
-----------------------------
7% SENIOR NOTE DUE 2003
1. Interest. NAVISTAR INTERNATIONAL CORPORATION, a Delaware
corporation (the "Company," which definition shall include any successor thereto
in accordance with the Indenture (as defined below)), promises to pay, until the
principal hereof is paid or made available for payment, interest on the
principal amount set forth on the reverse side hereof at a rate of 7% per annum.
--- -----
Interest on the Securities will accrue from and including the most recent date
to which interest has been paid or, if no interest has been paid, from and
including February 4, 1998 through but excluding the date on which interest is
paid. Interest shall be payable in arrears on February 1, August 1 and at the
stated maturity (each an "Interest Payment Date"), commencing August 1, 1998.
Interest will be computed on the basis of a 360-day year of twelve full 30-day
months and, for periods of less than one month, the actual number of days
elapsed. Interest on overdue principal and (to the extent permitted by law) on
overdue installments of interest will accrue at a rate equal to 7% per annum.
--- -----
2. Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders
of Securities at the close of business on the January 15 or July 15 next
preceding the relevant Interest Payment Date. Holders must surrender Securities
to the Paying Agent to collect principal payments. The Company will pay
principal, premium, if any, and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts. At
the Company's option, interest may be paid by check mailed to the registered
address of the Holder of this Security.
3. Paying Agent and Registrar. Initially, XXXXXX TRUST AND SAVINGS
BANK (the "Trustee") will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without notice. Neither the
Company nor any of its Subsidiaries may act as Paying Agent, Registrar or co-
Registrar.
4. Indenture. The Company issued the Securities under an Indenture
dated as of February 4, 1998 (the "Indenture") between the Company and the
Trustee. This Security is one of an issue of Securities of the Company issued
under the Indenture. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code (S)(S)77aaa-77bbbb) as amended from time to
time. The Securities are subject to all such terms, and Securityholders are
referred to the Indenture and such Act for a statement of them. Capitalized
terms used herein and not otherwise defined have the meanings set forth in the
Indenture. The
A-2
Securities are general unsecured obligations of the Company limited in aggregate
principal amount to $100,000,000. The Indenture limits, among other things, the
incurrence of certain Indebtedness by the Company and its Restricted
Subsidiaries; transactions by the Company and its Restricted Subsidiaries with
certain Affiliates; the granting of Liens by the Company or any of its
Restricted Subsidiaries; certain guarantees issued by Restricted Subsidiaries of
the Company and the ability of the Company and the Subsidiary Guarantors to
merge with or into another entity. The limitations are subject to a number of
important qualifications and exceptions. The Company must report to the Trustee
annually whether it is in compliance with the limitations contained in the
Indenture.
5. Offers to Purchase. Sections 4.11 and 4.19 of the Indenture
provide upon the occurrence of a Change of Control and after certain Asset
Disposition, and subject to further limitations contained therein, the Company
shall make an offer to purchase certain amount of the Securities in accordance
with the procedures set forth in the Indenture.
6. Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Securities in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. The Registrar
need not transfer or exchange any Security or portion of a Security selected for
redemption, or transfer or exchange any Securities for a period of 15 days
before a selection of Securities to be redeemed.
7. Persons Deemed Owners. The registered holder of a Security may be
treated as the owner of it for all purposes.
8. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent will pay
the money back to the Company at its request. After that, Holders entitled to
the money must look to the Company for payment as general creditors unless an
"abandoned property" law designates another Person.
9. Amendment, Supplement, Waiver. The Company and the Trustee may,
without the consent of the holders of any outstanding Securities, amend, waive
or supplement the Indenture, the Securities or Subsidiary Guarantee for certain
specified purposes, including, among other things, curing ambiguities, defects
or inconsistencies, maintaining the qualification of the Indenture under the
Trust Indenture Act of 1939 or making any other change that does not adversely
affect the rights of any Holder. Other amendments and modifications of the
Indenture, the Securities or any Subsidiary Guarantee may be made by the Company
and the Trustee with the consent of the Holders of not less than a majority of
the aggregate principal amount of the outstanding Securities, subject to certain
exceptions requiring the consent of the Holders of the particular Securities to
be affected.
A-3
10. Successor Corporation. When a successor corporation assumes all
the obligations of its predecessor under the Securities and the Indenture and
the transaction complies with the terms of Article V of the Indenture, the
predecessor corporation, subject to certain exceptions, will be released from
those obligations.
11. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.1(a)(vii) or
(viii) of the Indenture with respect to the Company) occurs and is continuing,
then the holders of not less than 25% in aggregate principal amount of the
outstanding Securities may, or the Trustee may, declare the principal of,
premium, if any, plus accrued interest, if any, to be due and payable
immediately. If an Event of Default specified in Section 6.1(a)(vii) or (viii)
of the Indenture with respect to the Company occurs and is continuing, the
principal of, premium, if any, and accrued interest on all of the Securities
shall ipso facto become and be immediately due and payable without any
---- -----
declaration or other act on the part of the Trustee or any Holder.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity reasonably
satisfactory to it before it enforces the Indenture or the Securities. Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
default (except a default in payment of principal or interest or a failure to
comply with Article V of the Indenture) if it determines that withholding notice
is in their interests. The Company must furnish an annual compliance certificate
to the Trustee.
12. Guarantees. This Security may after the date hereof be entitled
to certain Subsidiary Guarantees made for the benefit of the Holders. Reference
is hereby made to Section 4.15 of the Indenture and to Exhibit B to the
Indenture for the terms of any Subsidiary Guarantee (including any terms of
subordination of such Subsidiary Guarantee that may apply).
13. Trustee Dealings with Company. The Trustee, 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.
14. No Recourse Against Others. A Trustee, director, officer,
employee, stockholder or beneficiary, as such, of the Company or any Subsidiary
Guarantor shall not have any liability for any obligations of the Company or any
Subsidiary Guarantor under the Securities, the Indenture or any Subsidiary
Guarantee or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
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15. Defeasance. The Indenture contains provisions (which provisions
apply to this Security) for defeasance at any time of (a) the entire
indebtedness of the Company and any Subsidiary Guarantor or this Security and
(b) certain restrictive covenants and related Defaults and Events of Default, in
each case upon compliance by the Company with certain conditions set forth
therein.
16. Authentication. This Security shall not be valid until the
Trustee signs the certificate of authentication on the other side of this
Security.
17. Abbreviations. Customary abbreviations may be used in the name
of a Securityholder or an assignee, such as: TEN COM (= tenants in common),
TENANT (= 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).
18. GOVERNING LAW. THE INDENTURE, THIS SECURITY AND EACH SUBSIDIARY
GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
The Company will furnish to any Securityholder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Navistar International Corporation
000 Xxxxx Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
A-5
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
____________________________________________________________
(Insert assignee's social security or tax ID number)________
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably
appoint ____________________ agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date:______ Your signature:____________________________
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:___________________________________________
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have all or any part of this Security purchased by the
Company pursuant to Section 4.11 or 4.19 of the Indenture, check the appropriate
Box:
[ ] Section 4.11 [ ] Section 4.19
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 4.11 or 4.19 of the Indenture, state the amount: $
Date:__________ Your Signature:__________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:_______________________
EXHIBIT B
ARTICLE XI
GUARANTEE OF SECURITIES
SECTION 11.1 Subsidiary Guarantee.
Subject to the provisions of this Article XI, each Subsidiary
Guarantor hereby jointly and severally unconditionally guarantees to each Holder
of a Security authenticated and delivered by the Trustee and to the Trustee and
its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Securities or the obligations of the Company or any other
Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder,
that: (a) the principal of, premium, if any, and interest on the Securities
will be duly and punctually paid in full when due, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest, if any, on the Securities and all other
obligations of the Company or the Subsidiary Guarantors to the Holders or the
Trustee hereunder or thereunder (including fees or expenses) and all other
obligations with respect to the Securities and this Indenture will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any
Securities, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed, or failing performance of any other obligation of the Company to
the Holders, for whatever reason, each Subsidiary Guarantor will be obligated to
pay, or to perform or cause the performance of, the same immediately. An Event
of Default under this Indenture or the Securities shall constitute an event of
default under this Subsidiary Guarantee, and shall entitle the Holders of
Securities to accelerate the obligations of the Subsidiary Guarantors hereunder
in the same manner and to the same extent as the obligations of the Company.
Each of the Subsidiary Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any holder of the Securities with
respect to any provisions hereof or thereof, any release of any other Subsidiary
Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Subsidiary Guarantee is affixed to any
particular Security, or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a guarantor. Each of the
Subsidiary Guarantors hereby waives the benefit of diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a pro-
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ceeding first against the Company, protest, notice and all demands whatsoever
and covenants that its Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in the Securities, this
Indenture and this Subsidiary Guarantee. If any Holder or the Trustee is
required by any court or otherwise to return to the Company or to any Subsidiary
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or such Subsidiary Guarantor, any amount paid
by the Company or such Subsidiary Guarantor to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and effect. Each Subsidiary Guarantor further agrees that, as
between it, on the one hand, and the Holders of Securities and the Trustee, on
the other hand, (a) subject to this Article XI, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article VI hereof for the
purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Article VI hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Subsidiary Guarantors for
the purpose of this Subsidiary Guarantee.
This Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities
are, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Securities, whether as a
"voidable preference," "fraudulent transfer" or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Securities shall,
to the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
No stockholder, officer, director, employer or incorporator, past,
present or future, or any Subsidiary Guarantor, as such, shall have any personal
liability under this Subsidiary Guarantee by reason of his, her or its status as
such stockholder, officer, director, employer or incorporator.
The Subsidiary Guarantors shall have the right to seek contribution
from any non-paying Subsidiary Guarantor so long as the exercise of such right
does not impair the rights of the Holders under this Subsidiary Guarantee.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that the guarantee
by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute
a fraudulent transfer
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or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
state law. To effectuate the foregoing intention, the Holders and each
Subsidiary Guarantor hereby irrevocably agrees that the obligations of each
Subsidiary Guarantor under the Subsidiary Guarantees shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of each Subsidiary Guarantor (including, but not limited to, the
Guarantor Senior Indebtedness of each Subsidiary Guarantor) result in the
obligations of each Subsidiary Guarantor under the Subsidiary Guarantees not
constituting such fraudulent transfer or conveyance.
SECTION 11.2 Execution and Delivery of Subsidiary Guarantee.
To further evidence the Subsidiary Guarantee set forth in Section
11.1, each Subsidiary Guarantor hereby agrees that a notation of such Subsidiary
Guarantee, substantially in the form included in Exhibit C hereto, shall be
endorsed on each Security authenticated and delivered by the Trustee after such
Subsidiary Guarantee is executed and executed by either manual or facsimile
signature of an Officer of each Subsidiary Guarantor. The validity and
enforceability of any Subsidiary Guarantee shall not be affected by the fact
that it is not affixed to any particular Security.
Each of the Subsidiary Guarantors hereby agrees that its Subsidiary
Guarantee set forth in Section 11.1 shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Subsidiary Guarantee.
If an Officer of a Subsidiary Guarantor whose signature is on this
Indenture or a Security no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, such Subsidiary
Guarantor's Subsidiary Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Subsidiary Guarantee set
forth in this Indenture on behalf of the Subsidiary Guarantor.
SECTION 11.3 Additional Subsidiary Guarantors.
Any person may become a Subsidiary Guarantor by executing and
delivering to the Trustee (a) a supplemental indenture in form and substance
satisfactory to the Trustee, which subjects such person to the provisions of
this Indenture as a Subsidiary Guarantor, and (b) an Opinion of Counsel to the
effect that such supplemental indenture has been duly authorized and executed by
such person and constitutes the legal, valid, binding and enforceable obligation
of such person (subject to such customary exceptions concerning fraudulent
conveyance laws, creditors' rights and equitable principles as may be acceptable
to the Trustee in its discretion).
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SECTION 11.4 Release of a Subsidiary Guarantor.
(a) In the event that each other holder of Indebtedness of the
Company or of any of the Company's Subsidiaries of which a Subsidiary Guarantor
has guaranteed the payment thereof unconditionally releases a Subsidiary
Guarantor of all of its obligations under such guarantee pursuant to a written
agreement in form and substance satisfactory to the Trustee (other than a
release resulting from payment under such guarantee) such Subsidiary Guarantor
shall be automatically and unconditionally released from all obligations under
its Subsidiary Guarantee, provided that a release of a Subsidiary Guarantor may
only be obtained under the circumstances described in this sentence if an
Officers' Certificate to that effect has been delivered to the Trustee.
(b) In addition, except in the case where the prohibition on transfer
in Section 5.1 is applicable, upon the sale or disposition of all (but not less
than all) of the Capital Stock of a Subsidiary Guarantor by the Company or a
Subsidiary of the Company, or upon the consolidation or merger of a Subsidiary
Guarantor with or into any Person (in each case, other than to the Company or an
Affiliate of the Company), such Subsidiary Guarantor shall be deemed
automatically and unconditionally released and discharged from all obligations
under this Article XI without any further action required on the part of the
Trustee or any Holder, provided that each such Subsidiary Guarantor is sold or
disposed of in accordance with Article V.
(c) The Trustee shall deliver an appropriate instrument evidencing
the release of a Subsidiary Guarantor upon receipt of a request of the Company
accompanied by an Officers' Certificate certifying as to the compliance with
this Section 11.4. Any Subsidiary Guarantor not so released or the entity
surviving such Subsidiary Guarantor, as applicable, will remain or be liable
under its Subsidiary Guarantee as provided in this Article XI.
The Trustee shall execute any documents reasonably requested by the
Company or a Subsidiary Guarantor in order to evidence the release of such
Subsidiary Guarantor from its obligations under its Subsidiary Guarantee
endorsed on the Securities and under this Article XI.
Except as set forth in Articles IV and V and this Section 11.4,
nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of a Subsidiary Guarantor with or into the Company
or another Subsidiary Guarantor or shall prevent any sale or conveyance of the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or another Subsidiary Guarantor.
SECTION 11.5 Waiver of Subrogation.
Each Guarantor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against the Company or any of its
Subsidiaries that arise from
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the existence, payment, performance or enforcement of such Subsidiary
Guarantor's obligations under this Subsidiary Guarantee and this Indenture,
including, without limitation, any right of subrogation, reimbursement,
exoneration, indemnification, and any right to participate in any claim or
remedy of any Holder of Securities 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, 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 or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Subsidiary Guarantor in violation of the preceding sentence
and the Securities shall not have been paid in full, such amount shall have been
deemed to have been paid to such Subsidiary Guarantor for the benefit of, and
held in trust for the benefit of, the Holders of the Securities, and shall
forthwith be paid to the Trustee for the benefit of such Holders to be credited
and applied upon the Securities, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Subsidiary Guarantor acknowledges that it
will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
11.5 is knowingly made in contemplation of such benefits.
SECTION 11.6 Agreement to Subordinate.
Each Subsidiary Guarantor covenants and agrees, and each Holder of
Securities, by his acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by such Subsidiary Guarantor's Subsidiary Guarantee and
the payment of the principal of and interest on each and all of the Securities
pursuant to such Subsidiary Guarantor's Subsidiary Guarantee is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right of
payment to the prior payment in full of Guarantor Senior Indebtedness.
Anything in the Subsidiary Guarantee, the Securities or in this
Indenture to the contrary notwithstanding, the indebtedness evidenced by such
Subsidiary Guarantor's Subsidiary Guarantee shall be subordinate and junior in
right of payment, in all respects, to all Guarantor Senior Indebtedness of such
Subsidiary Guarantor, whether outstanding at the Issue Date or incurred after
the Issue Date. Without limiting the effect of the foregoing, "subordinate" and
"junior" as used herein shall include within their meanings the following:
(i) in the event of any insolvency or bankruptcy proceedings, and
any receivership, liquidation, reorganization or other similar proceedings
in connection therewith, relative to the Subsidiary Guarantor or its
creditors or its property, and in the event of any proceedings for
voluntary liquidation, dissolution or other winding up of the Subsidiary
Guarantor, whether or not involving insolvency or bankruptcy proceedings,
then (A) all Guarantor Senior Indebtedness of such Subsidiary Guarantor
shall first be paid in full, or such payment be provided for, before any
payment on account of principal or interest is made upon the Indebtedness
evidenced by
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the Subsidiary Guarantee of such Subsidiary Guarantor, and (B) in any such
proceedings any payment or distribution of any kind or character (including
without limitation any distribution realized from or attributable to any
security interest of the Holders of the Securities in property or assets of
such Subsidiary Guarantor), whether in cash or property or securities which
may be payable or deliverable in respect of the Subsidiary Guarantee of
such Subsidiary Guarantor, shall be paid or delivered directly to the
holders of such Guarantor Senior Indebtedness of such Subsidiary Guarantor
(or the representative or representatives of such holders or the trustee or
trustees under any indenture under which any instruments evidencing any of
such Guarantor Senior Indebtedness of such Subsidiary Guarantor shall have
been issued) for application in payment thereof, unless and until such
Guarantor Senior Indebtedness of such Subsidiary Guarantor shall have been
paid in full or such payment shall have been provided for; provided that
(1) in the event that payment or delivery of such cash, property or
securities to the Holders of the Securities is authorized by an order or
decree giving effect, and stating in such order or decree that effect is
given, to the subordination of the Subsidiary Guarantee of such Subsidiary
Guarantor to Guarantor Senior Indebtedness of such Subsidiary Guarantor,
and made by a court of competent jurisdiction in a reorganization
proceeding under any applicable law, no payment or delivery of such cash,
property or securities payable or deliverable with respect to the
Securities need be made to the holders of Guarantor Senior Indebtedness of
such Subsidiary Guarantor, (2) no such delivery need be made of securities
which are issued pursuant to voluntary reorganization, dissolution, or
liquidation proceedings by such Subsidiary Guarantor or by such Subsidiary
Guarantor as reorganized, if such securities are subordinate and junior to
the payment of all Guarantor Senior Indebtedness of such Subsidiary
Guarantor then outstanding to the same extent as the Subsidiary Guarantee
of such Subsidiary Guarantor and (3) if, pursuant to the foregoing, a
payment or delivery of cash, property or securities is to be made to the
holders of Guarantor Senior Indebtedness of such Subsidiary Guarantor (or
their representative or representatives or the trustee or trustees under
any indenture under which any instruments evidencing any such Guarantor
Senior Indebtedness of such Subsidiary Guarantor shall have been issued)
from a distribution realized from or attributable to any security interest
of the Holders of the Securities in property or assets of such Subsidiary
Guarantor, such payment or delivery shall be made (x) first, to the holders
of any Guarantor Senior Indebtedness of such Subsidiary Guarantor (or their
representative or representatives) secured equally and ratably with the
Holders of the Securities with respect to such property or assets or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Guarantor Senior Indebtedness of such Subsidiary
Guarantor shall have been issued, ratably according to the aggregate
amounts remaining unpaid on account of such Guarantor Senior Indebtedness
of such Subsidiary Guarantor held or represented by each, until such
Guarantor Senior Indebtedness of such Subsidiary Guarantor shall have been
paid in full or such payment
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shall have been provided for and (y) then, to the extent such payment or
delivery shall not be required to pay the Guarantor Senior Indebtedness of
such Subsidiary Guarantor referred to in the foregoing clause (x), to the
other holders of Guarantor Senior Indebtedness of such Subsidiary Guarantor
(or their representative or representatives or the trustee or trustees
under any indenture under which any instruments evidencing any of such
Guarantor Senior Indebtedness of such Subsidiary Guarantor shall have been
issued), ratably according to the aggregate amounts remaining unpaid on
account of such Guarantor Senior Indebtedness of such Subsidiary Guarantor
held or represented by each, until such Guarantor Senior Indebtedness of
such Subsidiary Guarantor shall have been paid in full or such payment
shall have been provided for;
(ii) no payment or prepayment of any principal, premium (if any) or
interest on account of and no repurchase, redemption or other retirement
(whether at the option of the Holder or otherwise) of the Securities shall
be made, if at the time of such payment, prepayment, repurchase, redemption
or retirement, or immediately after giving effect thereto, there shall
exist a default in the payment or prepayment of any Guarantor Senior
Indebtedness of such Subsidiary Guarantor;
(iii) in the event that any Security is declared due and payable
because of the occurrence of an Event of Default (under circumstances when
the provisions of the foregoing clause (i) shall not be applicable), the
Holders of the Securities shall be entitled to payment only after there
shall first have been paid in full the Guarantor Senior Indebtedness of
such Subsidiary Guarantor outstanding at the time such Security so becomes
due and payable because of such Event of Default, or provision for such
payment shall have been made; and
(iv) in the event that (A) any of the events described in clauses
(i), (ii) and (iii) occurs and (B) notwithstanding the provisions therein,
any payment or distribution of assets of such Subsidiary Guarantor of any
kind or character (including any distribution realized from or attributable
to any security interest of the Holders of the Securities in property or
assets of such Subsidiary Guarantor), whether in cash, property or
securities, shall be received by the Holders of the Securities (or their
representative or representatives or the Trustee under this Indenture)
before all Guarantor Senior Indebtedness of such Subsidiary Guarantor shall
have been paid in full, or provision made for such payment in accordance
with the terms of the Guarantor Senior Indebtedness of such Subsidiary
Guarantor, except as provided in subclauses (1) and (2) of the proviso to
clause (i) above, such payment or distribution shall be held in trust for
the benefit of, and shall be paid over or delivered to, the holders of such
Guarantor Senior Indebtedness of such Subsidiary Guarantor (or their
representative or representatives or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such
Guarantor Senior Indebtedness of such Subsidiary Guarantor shall have been
issued), as their respective
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interests may appear under said clauses (i), (ii) and (iii), for
application to the payment of all such Guarantor Senior Indebtedness of
such Subsidiary Guarantor remaining unpaid to the extent necessary to pay
such Guarantor Senior Indebtedness of such Subsidiary Guarantor in full in
accordance with its terms, after giving effect to any concurrent payment or
distribution to the holders of such Guarantor Senior Indebtedness of such
Subsidiary Guarantor.
SECTION 11.7 Subrogation.
Subject to the payment in full of all Guarantor Senior Indebtedness,
holders of a Subsidiary Guarantee shall be subrogated to the rights of the
holders of Guarantor Senior Indebtedness of such Subsidiary Guarantor to receive
payments or distributions of cash, property or securities of such Subsidiary
Guarantor applicable to Guarantor Senior Indebtedness of such Subsidiary
Guarantor until all amounts owing on the Securities pursuant to such Subsidiary
Guarantor's Subsidiary Guarantee shall be paid in full, and as between such
Subsidiary Guarantor, its creditors other than holders of such Guarantor Senior
Indebtedness, and holders of such Subsidiary Guarantee, no such payment or
distribution made to the holders of such Guarantor Senior Indebtedness by virtue
of this Article XI which otherwise would have been made to such holders shall be
deemed to be a payment by such Subsidiary Guarantor on account of such Guarantor
Senior Indebtedness, it being understood that the provisions of this Article XI
are and are intended solely for the purpose of defining the relative rights of
the holders of such Subsidiary Guarantee, on the one hand, and the holders of
Guarantor Senior Indebtedness, on the other hand.
SECTION 11.8 Relative Rights.
Nothing contained in this Article XI or elsewhere in this Indenture or
in the Securities or this Subsidiary Guarantee is intended to or shall impair,
as between the Subsidiary Guarantor, its creditors other than the holders of its
Guarantor Senior Indebtedness, and the holders of its Subsidiary Guarantee, the
obligation of such Subsidiary Guarantor, which is absolute and unconditional, to
pay to the holders of the Securities pursuant to its Subsidiary Guarantee the
principal of and interest on the Securities as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the holders of its Subsidiary Guarantee and
creditors of such Subsidiary Guarantor other than the holders of its Guarantor
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or
any holder of its Subsidiary Guarantee from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article XI of the holders of Guarantor Senior
Indebtedness to receive cash, property or securities otherwise payable or
deliverable to the Securityholders.
Upon payment or distribution of assets of such Subsidiary Guarantor
referred to in this Article XI, the Trustee and the holders of the Securities
shall be entitled to rely
B-8
upon any order or decree made by any court of competent jurisdiction in which
any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of such Subsidiary Guarantor is pending or upon a
certificate of the trustee in bankruptcy, receiver, assignee for the benefit of
creditors, liquidating trustee, or agent or other person making any payment or
distribution, to the Trustee or to the holders of its Subsidiary Guarantee for
the purpose of ascertaining the persons entitled to participate in such payment
or distribution, the holders of its Guarantor Senior Indebtedness and other
indebtedness of such Subsidiary Guarantor, the amount thereof or payable
thereon, the amount paid or distributed thereon and all other facts pertinent
thereto or to this Article XI.
Nothing contained in this Article or elsewhere in this Indenture, or
in any of the Securities or this Subsidiary Guarantee, shall affect the
obligations of such Subsidiary Guarantor to make, or prevent such Subsidiary
Guarantor from making, payment of the principal of or interest on the Securities
pursuant to its Subsidiary Guarantee in accordance with the provisions hereof
and thereof, except as otherwise provided in this Article XI.
SECTION 11.9 Trustee to Effectuate Subordination.
Each holder of a Subsidiary Guarantee, by his acceptance thereof,
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XI and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 11.10 Trustee Not Fiduciary for Holders
of Guarantor Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to holders of a Subsidiary
Guarantee or any Subsidiary Guarantor or any other person moneys or assets to
which any holders of Guarantor Senior Indebtedness shall be entitled by virtue
of this Article XI or otherwise.
SECTION 11.11 Notice By Subsidiary Guarantor.
The Subsidiary Guarantor shall give prompt written notice to the
Trustee of any fact known to such Subsidiary Guarantor that would prohibit the
making of any payment of moneys to or by the Trustee pursuant to this Article.
Subject to the provisions of Sections 7.1 and 7.5 but notwithstanding any other
provisions of this Indenture, the Trustee and any Paying Agent shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of moneys to or by the Trustee or such Paying Agent, or
the taking of any other action by the Trustee or such Paying Agent, unless and
until the Trustee or such Paying Agent shall have received written notice
thereof from such Subsidiary Guarantor at least three Business Days prior to the
making of any such payment,
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the Securityholders, the holders of any Guarantor Senior Indebtedness or the
representative of any such holders.
SECTION 11.12 Rights of Trustee.
The Trustee shall be entitled to all the rights set forth in this
Article XI with respect to any Guarantor Senior Indebtedness of such Subsidiary
Guarantor by the time held by the Trustee, to the same extent as any other
holder of Guarantor Senior Indebtedness.
SECTION 11.13 Subsidiary Guarantor May Not
Impair Subordination.
No right of any present or future holder of any Guarantor Senior
Indebtedness of such Subsidiary Guarantor to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired by any act or failure
to act on the part of such Subsidiary Guarantor or by any noncompliance by such
Subsidiary Guarantor with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
SECTION 11.14 Rights of Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall require
otherwise) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article XI in addition to or in place of the Trustee, provided
that Sections 11.11 and 11.12 shall not apply to such Subsidiary Guarantor if it
acts as Paying Agent.
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EXHIBIT C
GUARANTEE
---------
For value received, the undersigned hereby unconditionally guarantees
to the Holder of this Security the payments of principal of, premium, if any,
and interest on this Security in the amounts and at the time when due and
interest on the overdue principal, premium, if any, and interest, if any, of
this Security, if lawful, and the payment or performance of all other
obligations of the Company under the Indenture or the Securities, to the Holder
of this Security and the Trustee, all in accordance with and subject to the
terms and limitations of this Security, Article XI of the Indenture and this
Subsidiary Guarantee. This Subsidiary Guarantee will become effective in
accordance with Article XI of the Indenture and its terms shall be evidenced
therein. The validity and enforceability of any Subsidiary Guarantee shall not
be affected by the fact that it is not affixed to any particular Security.
The obligations of the undersigned to the Holders of Securities and to
the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly
set forth in Article XI of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Subsidiary Guarantee and all of the other
provisions of the Indenture to which this Subsidiary Guarantee relates. The
Indebtedness evidenced by this Subsidiary Guarantee is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full in cash or cash equivalents of all Guarantor Senior
Indebtedness as defined in the Indenture, and this Subsidiary Guarantee is
issued subject to such provisions. Each Holder of a Security, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee, on behalf of such Holder, to take such action as may be
necessary to appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such
purpose, provided that such subordination provisions shall cease to affect
amounts deposited in accordance with the defeasance provisions of the Indenture
upon the terms and conditions set forth therein.
This Subsidiary Guarantee is subject to release upon the terms set
forth in the Indenture.
[NAME OF GUARANTOR]
By:______________________
Name:
Title:
EXHIBIT D
FORM OF CERTIFICATE OF TRANSFER
Navistar International Corporation
000 Xxxxx Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
[Name and Address of Registrar]
Re: 7% Senior Notes due 2003
Reference is hereby made to the Indenture, dated as of February 4,
1998 (the "Indenture"), between Navistar International Corporation (the
"Issuer") and Xxxxxx Trust and Savings Bank, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
________________, (the "Transferor") owns and proposes to transfer the
Security[s] specified in Annex A hereto in the principal amount of $___ in such
Security[s] (the "Transfer"), to ________ (the "Transferee"), as further
specified in Annex A hereto. In the event that Transferor holds Physical
Securities, this Certificate is accompanied by one or more certificates
aggregating at least the principal amount of Securities proposed to be
Transferred. In connection with the Transfer, the Transferor hereby certifies
that:
1. [ ] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE 144A GLOBAL
------------------------------------------------------------
SECURITY. The Transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further certifies
that the Securities are being transferred to a Person that the Transferor
reasonably believes is purchasing the Securities for its own account, or for one
or more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A in a transaction meeting the requirements
of Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
Security will be subject to the restrictions on transfer enumerated in the
Securities Act Legend and in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE REGULATION S GLOBAL
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SECURITY PURSUANT TO REGULATION S. The Transfer is being effected pursuant to
---------------------------------
and in accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a
person in the United States and
D-1
(x) at the time the buy order was originated, the Transferee was outside the
United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 904(b) of Regulation S under the Securities Act and (iii)
the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the Security will be subject to
the restrictions on Transfer enumerated in the Securities Act Legend printed on
the Regulation S Global Security and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A RESTRICTED
-------------------------------------------------------------------
PHYSICAL SECURITY PURSUANT TO RULE 144A OR REGULATION S. One or more of the
-------------------------------------------------------
events specified in Section 2.6(a) of the Indenture have occurred and the
Transfer is being effected in compliance with the transfer restrictions
applicable to Securities bearing the Securities Act Legend and pursuant to and
in accordance with the Securities Act, and accordingly the Transferor hereby
further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 144A under the Securities Act and the Transferor certifies to the
effect set forth in paragraph 1 above; or
(b) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 904 under the Securities Act and the Transferor certifies to the
effect set forth in paragraph 2 above.
4. [ ] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE UNRESTRICTED GLOBAL
--------------------------------------------------------------------
SECURITY. The Transfer is being effected pursuant to and in accordance with
--------
Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture, and the restrictions on transfer
contained in the Indenture and the Securities Act Legend are not
D-2
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transfer Securities will no longer be subject to the restrictions
on transfer enumerated in the Securities Act Legend and in the Indenture and the
Securities Act.
5. [ ] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE PHYSICAL SECURITY
------------------------------------------------------------------
THAT DOES NOT BEAR THE SECURITIES ACT LEGEND. One or more of the events
--------------------------------------------
specified in Section 2.6(a) of the Indenture have occurred and the Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture,
and the restrictions on transfer contained in the Indenture and the Securities
Act Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred Securities will no longer be subject to the
restrictions on transfer enumerated in the Securities Act Legend and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Guarantors.
__________________________________________________
[Insert Name of Transferor]
By:_______________________________________________
Name:
Title:
Dated: _________________
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FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] Interests in the
(i) [ ] 144A Global Security (CUSIP _____), or
(ii) [ ] Regulation S Global Security (CINS _____).
(b) [ ] Physical Security.
2. That the Transferee will hold:
[CHECK ONE]
(a) [ ] Interests in the:
(i) [ ] 144A Global Security (CUSIP _____), or
(ii) [ ] Regulation S Global Security (CINS _____), or
(iii) [ ] Unrestricted Global Security (CUSIP _____); or
(b) [ ] Physical Securities that bear the Securities Act
Legend;
(c) [ ] Physical Securities that do not bear the
Securities Act Legend;
in accordance with the terms of the Indenture.
D-4
EXHIBIT E
FORM OF CERTIFICATE OF EXCHANGE
Navistar International Corporation
000 Xxxxx Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
[Name and Address of Registrar]
Re: 7% Senior Notes due 2003
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of February 4,
1998 (the "Indenture"), between Navistar International Corporation (the
"Issuer") and Xxxxxx Trust and Savings Bank, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
__________, (the "Holder") owns and proposes to exchange the
Security[s] specified herein, in the principal amount of $___ in such
Security[s] (the "Exchange"). In the event Holder holds Physical Securities,
this Certificate is accompanied by one or more certificates aggregating at least
the principal amount of Securities proposed to be Exchanged. In connection with
the Exchange, the Holder hereby certifies that:
1. EXCHANGE OF RESTRICTED PHYSICAL SECURITIES OR INTERESTS IN THE INITIAL
GLOBAL SECURITY FOR PHYSICAL SECURITIES THAT DO NOT BEAR THE SECURITIES ACT
LEGEND OR UNRESTRICTED GLOBAL SECURITIES.
(a) [ ] CHECK IF EXCHANGE IS FROM INITIAL GLOBAL SECURITIES TO THE
----------------------------------------------------------
UNRESTRICTED GLOBAL SECURITY. In connection with the Exchange of the Holder's
----------------------------
Initial Global Security to the Unrestricted Global Security in an equal
principal amount, the Holder hereby certifies (i) the Unrestricted Global
Securities are being acquired for the Holder's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Initial Global Securities and pursuant to and in
accordance with the Securities Act of 1933, as amended (the "Securities Act")
and (iii) the restrictions on transfer contained in the Indenture and the
Securities Act Legend are not required in order to maintain compliance with the
Securities Act.
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(B) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO AN
--------------------------------------------------------------
INTEREST IN THE UNRESTRICTED GLOBAL SECURITY. In connection with the Holder's
--------------------------------------------
Exchange of Restricted Physical Securities for Interest in the Unrestricted
Global Security, (i) the Interest in the Unrestricted Global Security are being
acquired for the Holder's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Physical Securities and pursuant to and in accordance with the
Securities Act and (iii) the restrictions on transfer contained in the Indenture
and the Securities Act Legend are not required in order to maintain compliance
with the Securities Act.
(C) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO
-----------------------------------------------------------
PHYSICAL SECURITIES THAT DO NOT BEAR THE SECURITIES ACT LEGEND. In connection
--------------------------------------------------------------
with the Holder's Exchange of a Restricted Physical Security for Physical
Securities that do not bear the Securities Act Legend, the Holder hereby
certifies (i) the Physical Securities that do not bear the Securities Act Legend
are being acquired for the Holder's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Physical Securities and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act and (iv) one or more of the events specified
in Section 2.6(a) of the Indenture have occurred.
2. [ ] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO INTERESTS
---------------------------------------------------------------------
IN AN INITIAL GLOBAL SECURITY . In connection with the Exchange of the Holder's
-----------------------------
Restricted Physical Security for interests in the Initial Global Security in the
[CHECK ONE] o 144A Global Security, o Regulation S Global Security, with an
equal principal amount, (i) the interests in the Initial Global Security are
being acquired for the Holder's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Physical Security and pursuant to and in accordance
with the Securities Act. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Initial Global Security issued
will be subject to the restrictions on transfer enumerated in the Securities Act
Legend printed on the Initial Global Securities and in the Indenture and the
Securities Act.
E-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Guarantors.
_________________________________________
[Insert Name of Holder]
By:______________________________________
Name:
Title:
Dated: _________________
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