Exhibit 4.1
________________________________________________________________________________
________________________________________________________________________________
TRANSPORTATION MANUFACTURING OPERATIONS, INC.,
as Issuer,
The GUARANTORS named herein
and
IBJ WHITEHALL BANK & TRUST COMPANY, as Trustee
---------------
INDENTURE
Dated as of June 16, 1999
---------------
11 1/4% Senior Subordinated Notes due 2009, Series A
11 1/4% Senior Subordinated Notes due 2009, Series B
________________________________________________________________________________
________________________________________________________________________________
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1)............................................. 7.10
(a)(2)............................................. 7.10
(a)(3)............................................. N.A.
(a)(4)............................................. N.A
(b)................................................ 7.08; 7.10; 13.02
(b)(1)............................................. 7.10
(b)(9)............................................. 7.10
(c)................................................ N.A.
311(a)................................................ 7.11
(b)................................................ 7.11
(c)................................................ N.A.
312(a)................................................ 2.05
(b)................................................ 13.03
(c)................................................ 13.03
313(a)................................................ 7.06
(b)(1)............................................. 7.06
(b)(2)............................................. 7.06
(c)................................................ 7.06; 13.02
(d)................................................ 7.06
314(a)................................................ 4.02; 4.08; 13.02
(b)................................................ N.A.
(c)(1)............................................. 13.04; 13.05
(c)(2)............................................. 13.04; 13.05
(c)(3)............................................. N.A.
(d)................................................ N.A.
(e)................................................ 13.05
(f)................................................ N.A.
315(a)................................................ 7.01; 7.02
(b)................................................ 7.05; 13.02
(c)................................................ 7.01
(d)................................................ 6.05; 7.01; 7.02
(e)................................................ 6.11
316(a) (last sentence)................................ 2.09
(a)(1)(A).......................................... 6.05
(a)(1)(B).......................................... 6.04
(a)(2)............................................. 8.02
(b)................................................ 6.07
(c)................................................ 8.04
317(a)(1)............................................. 6.08
(a)(2)............................................. 6.09
(b)................................................ 2.04
318(a)................................................ 13.01
N.A. means Not Applicable
____________________
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions. . . . . . . . . . . . . . . . . . . . .26
Section 1.03. Incorporation by Reference of Trust Indenture Act. . . . .26
Section 1.04. Rules of Construction. . . . . . . . . . . . . . . . . . .27
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating. . . . . . . . . . . . . . . . . . . . . .27
Section 2.02. Execution and Authentication.. . . . . . . . . . . . . . .28
Section 2.03. Registrar and Paying Agent.. . . . . . . . . . . . . . . .29
Section 2.04. Paying Agent to Hold Assets in Trust.. . . . . . . . . . .29
Section 2.05. Noteholder Lists.. . . . . . . . . . . . . . . . . . . . .29
Section 2.06. Transfer and Exchange. . . . . . . . . . . . . . . . . . .29
Section 2.07. Replacement Notes. . . . . . . . . . . . . . . . . . . . .30
Section 2.08. Outstanding Notes. . . . . . . . . . . . . . . . . . . . .30
Section 2.09. Treasury Notes.. . . . . . . . . . . . . . . . . . . . . .31
Section 2.10. Temporary Notes. . . . . . . . . . . . . . . . . . . . . .31
Section 2.11. Cancellation.. . . . . . . . . . . . . . . . . . . . . . .31
Section 2.12. Defaulted Interest.. . . . . . . . . . . . . . . . . . . .31
Section 2.13. Deposit of Moneys. . . . . . . . . . . . . . . . . . . . .32
Section 2.14. CUSIP Number.. . . . . . . . . . . . . . . . . . . . . . .32
Section 2.15. Book-Entry Provisions for Global Notes.. . . . . . . . . .32
Section 2.16. Registration of Transfers and Exchanges. . . . . . . . . .33
Section 2.17. Restrictive Legends. . . . . . . . . . . . . . . . . . . .37
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.. . . . . . . . . . . . . . . . . . . .38
Section 3.02. Selection of Notes to Be Redeemed. . . . . . . . . . . . .39
Section 3.03. Notice of Redemption.. . . . . . . . . . . . . . . . . . .39
Section 3.04. Effect of Notice of Redemption.. . . . . . . . . . . . . .40
Section 3.05. Deposit of Redemption Price. . . . . . . . . . . . . . . .40
Section 3.06. Notes Redeemed in Part.. . . . . . . . . . . . . . . . . .40
i
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.. . . . . . . . . . . . . . . . . . . . .40
Section 4.02. Provision of Financial Statements and Other Information. .41
Section 4.03. Waiver of Stay, Extension or Usury Laws. . . . . . . . . .41
Section 4.04. Compliance Certificate; Notice of Default; Tax
Information. . . . . . . . . . . . . . . . . . . . . . . .41
Section 4.05. Payment of Taxes and Other Claims. . . . . . . . . . . . .42
Section 4.06. Corporate Existence. . . . . . . . . . . . . . . . . . . .42
Section 4.07. Maintenance of Office or Agency. . . . . . . . . . . . . .43
Section 4.08. Compliance with Laws.. . . . . . . . . . . . . . . . . . .43
Section 4.09. Maintenance of Properties and Insurance. . . . . . . . . .43
Section 4.10. Limitation on Additional Indebtedness. . . . . . . . . . .44
Section 4.11. Limitation on Restricted Payments. . . . . . . . . . . . .44
Section 4.12. Limitation on Other Senior Subordinated Indebtedness.. . .47
Section 4.13. Limitation on Certain Asset Sales. . . . . . . . . . . . .47
Section 4.14. Limitation on Transactions with Affiliates.. . . . . . . .50
Section 4.15. Limitations on Liens.. . . . . . . . . . . . . . . . . . .51
Section 4.16. Limitations on Investments.. . . . . . . . . . . . . . . .52
Section 4.17. Change of Control. . . . . . . . . . . . . . . . . . . . .52
Section 4.18. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. . . . . . . . . . . . .54
Section 4.19. Limitation on Conduct of Business. . . . . . . . . . . . .55
Section 4.20. Limitation on Preferred Stock of Restricted
Subsidiaries.. . . . . . . . . . . . . . . . . . . . . . .56
Section 4.21. Limitation on Creation of Subsidiaries.. . . . . . . . . .56
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets.. .56
Section 5.02. Successor Person Substituted.. . . . . . . . . . . . . . .57
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default. . . . . . . . . . . . . . . . . . . . .58
Section 6.02. Acceleration.. . . . . . . . . . . . . . . . . . . . . . .59
Section 6.03. Other Remedies.. . . . . . . . . . . . . . . . . . . . . .60
Section 6.04. Waiver of Past Defaults and Events of Default. . . . . . .60
Section 6.05. Control by Majority. . . . . . . . . . . . . . . . . . . .61
Section 6.06. Limitation on Suits. . . . . . . . . . . . . . . . . . . .61
Section 6.07. Rights of Holders to Receive Payment.. . . . . . . . . . .61
Section 6.08. Collection Suit by Trustee.. . . . . . . . . . . . . . . .62
Section 6.09. Trustee May File Proofs of Claim.. . . . . . . . . . . . .62
Section 6.10. Priorities.. . . . . . . . . . . . . . . . . . . . . . . .62
Section 6.11. Undertaking for Costs. . . . . . . . . . . . . . . . . . .63
ii
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee. . . . . . . . . . . . . . . . . . . . .63
Section 7.02. Rights of Trustee. . . . . . . . . . . . . . . . . . . . .64
Section 7.03. Individual Rights of Trustee.. . . . . . . . . . . . . . .64
Section 7.04. Trustee's Disclaimer.. . . . . . . . . . . . . . . . . . .65
Section 7.05. Notice of Defaults.. . . . . . . . . . . . . . . . . . . .65
Section 7.06. Reports by Trustee to Holders. . . . . . . . . . . . . . .65
Section 7.07. Compensation and Indemnity.. . . . . . . . . . . . . . . .66
Section 7.08. Replacement of Trustee.. . . . . . . . . . . . . . . . . .66
Section 7.09. Successor Trustee by Consolidation, Merger or
Conversion.. . . . . . . . . . . . . . . . . . . . . . . .67
Section 7.10. Eligibility; Disqualification. . . . . . . . . . . . . . .67
Section 7.11. Preferential Collection of Claims Against Company. . . . .67
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.. . . . . . . . . . . . . . . .68
Section 8.02. With Consent of Holders. . . . . . . . . . . . . . . . . .68
Section 8.03. Compliance with TIA. . . . . . . . . . . . . . . . . . . .70
Section 8.04. Revocation and Effect of Consents. . . . . . . . . . . . .70
Section 8.05. Notation on or Exchange of Notes.. . . . . . . . . . . . .70
Section 8.06. Trustee to Sign Amendments, etc. . . . . . . . . . . . . .70
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Indenture. . . . . . . . . .71
Section 9.02. Legal Defeasance.. . . . . . . . . . . . . . . . . . . . .72
Section 9.03. Covenant Defeasance. . . . . . . . . . . . . . . . . . . .72
Section 9.04. Conditions to Defeasance or Covenant Defeasance. . . . . .73
Section 9.05. Application of Trust Money.. . . . . . . . . . . . . . . .74
Section 9.06. Repayment to the Company.. . . . . . . . . . . . . . . . .75
Section 9.07. Reinstatement. . . . . . . . . . . . . . . . . . . . . . .75
ARTICLE 10
GUARANTEE
Section 10.01. Unconditional Guarantee. . . . . . . . . . . . . . . . . .75
Section 10.02. Severability.. . . . . . . . . . . . . . . . . . . . . . .76
Section 10.03. Limitation on Guarantor's Liability; Contribution. . . . .76
Section 10.04. Successors and Assigns.. . . . . . . . . . . . . . . . . .77
Section 10.05. No Waiver. . . . . . . . . . . . . . . . . . . . . . . . .77
Section 10.06. Release of Guarantor.. . . . . . . . . . . . . . . . . . .77
iii
Section 10.07. Execution of Supplemental Indenture for Future Guarantors.77
Section 10.08. Execution and Delivery of Guarantee. . . . . . . . . . . .78
Section 10.09. Subordination of Subrogation and Other Rights. . . . . . .78
ARTICLE 11
SUBORDINATION OF GUARANTEE
Section 11.01. Guarantee Obligations Subordinated to Guarantor
Senior Indebtedness. . . . . . . . . . . . . . . . . . . .78
Section 11.02. Payment Over of Proceeds upon Dissolution, etc.. . . . . .78
Section 11.03. Suspension of Guaranteed Obligations When Guarantor
Senior Indebtedness in Default.. . . . . . . . . . . . . .80
Section 11.04. Trustee's Relation to Guarantor Senior Indebtedness. . . .81
Section 11.05. Subrogation. . . . . . . . . . . . . . . . . . . . . . . .81
Section 11.06. Guarantee Subordination Provisions Solely to Define
Relative Rights. . . . . . . . . . . . . . . . . . . . . .82
Section 11.07. Trustee to Effectuate Subordination. . . . . . . . . . . .82
Section 11.08. No Waiver of Subordination Provisions. . . . . . . . . . .82
Section 11.09. Notice to Trustee. . . . . . . . . . . . . . . . . . . . .83
Section 11.10. Reliance on Judicial Order or Certificate of
Liquidating Agent. . . . . . . . . . . . . . . . . . . . .83
Section 11.11. No Suspension of Remedies. . . . . . . . . . . . . . . . .84
ARTICLE 12
SUBORDINATION OF NOTES
Section 12.01. Notes Subordinate to Senior Indebtedness.. . . . . . . . .84
Section 12.02. Payment Over of Proceeds upon Dissolution, etc.. . . . . .84
Section 12.03. Suspension of Payment When Senior Indebtedness in
Default. . . . . . . . . . . . . . . . . . . . . . . . . .85
Section 12.04. Trustee's Relation to Senior Indebtedness. . . . . . . . .86
Section 12.05. Subrogation. . . . . . . . . . . . . . . . . . . . . . . .87
Section 12.06. Provisions Solely to Define Relative Rights. . . . . . . .87
Section 12.07. Trustee to Effectuate Subordination. . . . . . . . . . . .88
Section 12.08. No Waiver of Subordination Provisions. . . . . . . . . . .88
Section 12.09. Notice to Trustee. . . . . . . . . . . . . . . . . . . . .88
Section 12.10. Reliance on Judicial Order or Certificate of
Liquidating Agent. . . . . . . . . . . . . . . . . . . . .89
Section 12.11. No Suspension of Remedies. . . . . . . . . . . . . . . . .89
ARTICLE 13
MISCELLANEOUS
Section 13.01. TIA Controls.. . . . . . . . . . . . . . . . . . . . . . .89
Section 13.02. Notices. . . . . . . . . . . . . . . . . . . . . . . . . .90
Section 13.03. Communications by Holders with Other Holders.. . . . . . .91
Section 13.04. Certificate and Opinion as to Conditions Precedent.. . . .91
Section 13.05. Statements Required in Certificate and Opinion.. . . . . .91
Section 13.06. Rules by Trustee and Agents. . . . . . . . . . . . . . . .91
iv
Section 13.07. Business Days; Legal Holidays. . . . . . . . . . . . . . .92
Section 13.08. Governing Law. . . . . . . . . . . . . . . . . . . . . . .92
Section 13.09. No Adverse Interpretation of Other Agreements. . . . . . .92
Section 13.10. No Recourse Against Others.. . . . . . . . . . . . . . . .92
Section 13.11. Successors.. . . . . . . . . . . . . . . . . . . . . . . .92
Section 13.12. Multiple Counterparts. . . . . . . . . . . . . . . . . . .92
Section 13.13. Table of Contents, Headings, etc.. . . . . . . . . . . . .92
Section 13.14. Separability.. . . . . . . . . . . . . . . . . . . . . . .93
EXHIBITS
Exhibit A. Form of Series A Note. . . . . . . . . . . . . . . . . . A-1
Exhibit B. Form of Series B Note. . . . . . . . . . . . . . . . . . B-1
Exhibit C. Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors. . . . . . . . C-1
Exhibit D Form of Transferee Letter of Representaiton. . . . . . . D-1
Exhibit E. Form of Certificate to Be Delivered in Connection with
Regulation S Transfers . . . . . . . . . . . . . . . . . E-1
Exhibit F. Form of Supplemental Indenture . . . . . . . . . . . . . F-1
v
INDENTURE, dated as of June 16, 1999, among TRANSPORTATION
MANUFACTURING OPERATIONS, INC. a Delaware corporation (to be renamed Motor
Coach Industries International, Inc.) (the "COMPANY"), each of the GUARANTORS
(as defined herein) and IBJ WHITEHALL BANK & TRUST COMPANY, a banking
organization organized under the laws of New York, as Trustee (the "TRUSTEE").
The Company has duly authorized the creation of an issue of Series A
11 1/4% Senior Subordinated Notes due 2009 (the "INITIAL NOTES") and Series B
11 1/4% Senior Subordinated Notes due 2009 (the "EXCHANGE NOTES") and, to
provide therefor, the Company and each Guarantor has duly authorized the
execution and delivery of this Indenture. All things necessary to make the
Notes, 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 and binding agreement of the Company and the Guarantors,
have been done.
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. DEFINITIONS.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person existing at
the time such Person becomes a Restricted Subsidiary or is merged into or
consolidated with any other Person or which is assumed in connection with the
acquisition of assets from such Person and, in each case, not incurred by
such Person in connection with, or in anticipation or contemplation of, such
Person becoming a Restricted Subsidiary or such merger, consolidation or
acquisition.
"ADDITIONAL INTEREST" has the meaning provided to such term in the
Registration Rights Agreement.
"ADJUSTED NET ASSETS" of any Person at any date shall mean the
lesser of the amount by which the fair value of the property of such Person
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities), but excluding liabilities under the Guarantee of such Person at
such date and the present fair salable value of the assets of such Person at
such date exceeds the amount that will be required to pay the probable
liability of such Person on its debts (after giving effect to all other fixed
and contingent liabilities and after giving effect to any collection from any
Subsidiary of such Person in respect of the Obligations of such Person under
the Guarantee of such Person), excluding Indebtedness in respect of the
Guarantee of such Person, as they become absolute and matured.
"AFFILIATE" means, with respect to any specific Person, any other
Person that directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such
specified Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling," "controlled by," and
"under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED that, for
2
purposes of Section 4.14 of this Indenture, beneficial ownership of at least
10% of the voting securities of a Person, either directly or indirectly,
shall be deemed to be control.
"AGENT" means any Registrar, Paying Agent, co-Registrar,
Authenticating Agent or agent for service of notices and demands.
"ASSET ACQUISITION" means
(1) an Investment by the Company or any Restricted Subsidiary of
the Company in any other Person pursuant to which such Person shall
become a Restricted Subsidiary of the Company, or shall be merged with
or into the Company or any Restricted Subsidiary of the Company or
(2) the acquisition by the Company or any Restricted Subsidiary
of the Company of the assets of any Person (other than a Restricted
Subsidiary of the Company) which constitute all or substantially all
of the assets of such Person or comprise any division or line of
business of such Person or any other properties or assets of such
Person other than in the ordinary course of business.
"ASSET SALE" means any direct or indirect sale, issuance,
conveyance, assignment, transfer, lease or other disposition (including any
sale and lease-back transaction), other than to the Company or any of its
Restricted Subsidiaries, in any single transaction or series of related
transactions of
(1) any Capital Stock of or other equity interest in any
Restricted Subsidiary of the Company; or
(2) any other property or assets of the Company or of any
Restricted Subsidiary thereof other than the sale of the Company's
products (including, without limitation, the sale or lease of buses)
in the ordinary course of business;
PROVIDED that Asset Sales shall not include
(1) a transaction or series of related transactions for which
the Company or its Restricted Subsidiaries receive aggregate
consideration of less than $1,000,000;
(2) the sale, lease, conveyance, disposition or other transfer
of all or substantially all of the assets of the Company as permitted
under Section 5.01 of this Indenture;
(3) any Restricted Payment made in compliance with Section 4.11
of this Indenture, and any making of any Permitted Investment;
(4) surrender or waiver of contract rights or the settlement,
release or surrender of contract, tort or other claims of any kind;
(5) the licensing of intellectual property in the ordinary
course of business;
(6) transfers of Receivables and Related Assets in connection
with a Permitted Receivables Financing;
3
(7) sales of Cash Equivalents;
(8) granting of Liens not otherwise prohibited by this
Indenture; and
(9) leases or subleases to third persons in the ordinary course
of business that do not interfere in any material respect with the
business of the Company or any of its Restricted Subsidiaries.
"ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
(1) cash and Cash Equivalents received by the Company or any
Restricted Subsidiary of the Company from such Asset Sale (including
cash or Cash Equivalents received as consideration for the assumption
of liabilities incurred in connection with or in anticipation of such
Asset Sale), after
(a) provision for all income or other taxes measured by or
resulting from such Asset Sale,
(b) payment of all brokerage commissions, underwriting and
other fees and expenses related to such Asset Sale,
(c) provision for minority interest holders in any
Restricted Subsidiary of the Company as a result of such Asset
Sale,
(d) repayment of Indebtedness that is secured by the
assets subject to such Asset Sale or otherwise required to be
repaid in connection with such Asset Sale and
(e) deduction of appropriate amounts to be provided by the
Company or a Restricted Subsidiary of the Company as a reserve,
in accordance with GAAP, against any liabilities associated with
the assets sold or disposed of in such Asset Sale and retained by
the Company or a Restricted Subsidiary after such Asset Sale,
including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated
with the assets sold or disposed of in such Asset Sale, and
(2) promissory notes and other non-cash consideration received
by the Company or any Restricted Subsidiary of the Company from such
Asset Sale or other disposition upon the liquidation or conversion of
such notes or non-cash consideration into cash or Cash Equivalents.
"AVAILABLE ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
the aggregate Asset Sale Proceeds from such Asset Sale that have not been
applied in accordance with clauses (3)(a) or (3)(b), and which have not yet been
the basis for an Excess Proceeds Offer in accordance with clause (3)(c) of
Section 4.13A under this Indenture.
"BOARD OF DIRECTORS" means, with respect to any Person, the board of
directors of such Person or similar governing body or any duly authorized
committee thereof.
4
"BOARD RESOLUTION" means with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification and delivered to the
Trustee.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated and whether
or not voting) of corporate stock, partnership or limited liability company
interests or any other participation, right or other interest in the nature of
an equity interest in such Person including, without limitation, Common Stock
and Preferred Stock of such Person, or any option, warrant or other security
convertible into any of the foregoing.
"CAPITALIZED LEASE OBLIGATIONS" means with respect to any Person,
Indebtedness represented by obligations under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such Indebtedness shall be the capitalized amount of such obligations
determined in accordance with GAAP.
"CASH EQUIVALENTS" means
(1) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or issued by any agency or
instrumentality thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof;
(2) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings obtainable from either
Standard & Poor's Corporation ("S&P") or Xxxxx'x Investors
Service, Inc. ("XXXXX'X");
(3) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a
rating of at least A-1 from S&P or at least P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances maturing
within one year from the date of acquisition thereof issued by any
bank organized under the laws of the United States of America or any
state thereof or the District of Columbia or any U.S. branch of a
foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $250,000,000;
(5) repurchase obligations with a term of not more than 365 days
for underlying securities of the types described in clause (1) above
entered into with any bank meeting the qualifications specified in
clause (4) above; and
(6) investments in money market funds which invest substantially
all their assets in securities of the types described in clauses (1)
through (5) above.
"CERTIFICATED NOTES" means one or more certificated Notes in
registered form.
A "CHANGE OF CONTROL" of the Company will be deemed to have occurred
at such time as
5
(1) any Person or group of related Persons for purposes of
Section 13(d) of the Exchange Act (a "Group"), other than a Permitted
Holder, becomes the beneficial owner (as defined under Rule 13d-3 or
any successor rule or regulation promulgated under the Exchange Act,
except that a Person shall be deemed to have "beneficial ownership" of
all securities that such Person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time) of
50% or more of the total voting or economic power of the Company's
Capital Stock, and (b) the Permitted Holders no longer have the power
to elect a majority of the directors of the Board of Directors of the
Company,
(2) the occurrence of any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of
all or substantially all of the assets of the Company and its
Restricted Subsidiaries, taken as a whole, to any Person or Group
(whether or not otherwise in compliance with the provisions of the
Indenture) other than to the Permitted Holders,
(3) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors of
the Company (together with any new directors whose election by such
Board of Directors or whose nomination for election by the
shareholders of the Company has been approved by the Permitted Holders
or a majority of the directors then still in office who either were
directors at the beginning of such period or whose election or
recommendation for election was previously so approved) cease to
constitute a majority of the Board of Directors of the Company, or
(4) the approval by the holders of Capital Stock of the Company
of any plan or proposal for the liquidation or dissolution of the
Company (whether or not otherwise in compliance with the provisions of
this Indenture).
"COMMISSION" means the United States Securities and Exchange
Commission.
"COMMON STOCK" of any Person means all Capital Stock of such Person
that is generally entitled to
(1) vote in the election of directors of such Person or
(2) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers
or others that will control the management and policies of such
Person.
"COMPANY" means the party named as such in the first paragraph of this
Indenture until a successor replaces such party pursuant to Article 5 of this
Indenture and thereafter means the successor.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, with respect to any
Person, the ratio of EBITDA of such Person during the four full fiscal quarters
(the "FOUR QUARTER PERIOD") ending on or prior to the date of the transaction
giving rise to the need to calculate the Consolidated Fixed Charge Coverage
Ratio (the "TRANSACTION DATE") to Consolidated Fixed Charges of such Person for
the Four Quarter Period. In addition to and without limitation of the foregoing,
for purposes of this definition, "CONSOLIDATED EBITDA" and "CONSOLIDATED FIXED
CHARGES" shall be calculated after giving effect on a PRO FORMA basis for the
period of such calculation to
6
(1) the incurrence or repayment of any Indebtedness of such
Person or any of its Restricted Subsidiaries or the issuance or
redemption or other repayment of Preferred Stock of any such
Restricted Subsidiary (and the application of the proceeds thereof)
giving rise to the need to make such calculation and any incurrence or
repayment of other Indebtedness and, in the case of any Restricted
Subsidiary, the issuance or redemption or other repayment of Preferred
Stock (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of
business for working capital purposes pursuant to working capital
facilities, occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior
to the Transaction Date (except that, in determining the Consolidated
Fixed Charge Coverage Ratio as of any Transaction Date, any Permitted
Indebtedness that is incurred at the same time as the Indebtedness
giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio shall not be included for purposes of such
calculation), as if such incurrence or repayment or issuance or
redemption or other repayment, as the case may be (and the application
of the proceeds thereof), occurred on the first day of the Four
Quarter Period, and
(2) any Asset Sales or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary
as a result of the Asset Acquisition) incurring, assuming or otherwise
being liable for Acquired Indebtedness and also including any EBITDA
(PROVIDED that such EBITDA shall be included only to the extent
includable pursuant to the definition of "Consolidated Net Income")
(including any PRO FORMA expense and cost reductions calculated on a
basis consistent with Regulation S-X of the Exchange Act) attributable
to the assets which are the subject of the Asset Acquisition or Asset
Sale during the Four Quarter Period) occurring during the Four Quarter
Period or at any time subsequent to the last day of the Four Quarter
Period and on or prior to the Transaction Date, as if such Asset Sale
or Asset Acquisition (including the incurrence, assumption or
liability for any such Acquired Indebtedness) occurred on the first
day of the Four Quarter Period.
If such Person or any of its Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if such
Person or any Restricted Subsidiary of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness. Furthermore, 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 outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date 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 Transaction Date;
(2) if interest on any Indebtedness actually incurred on the
Transaction Date may optionally be 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 Transaction Date will be deemed to have been in effect
during the Four Quarter Period; and
(3) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is
covered by one or more Hedging Obligations,
7
shall be deemed to accrue at the rate PER ANNUM resulting after
giving effect to the operation of such agreements.
"CONSOLIDATED FIXED CHARGES" means, with respect to any Person, for
any period, the sum, without duplication, on a consolidated basis, of
(1) Consolidated Interest Expense, plus
(2) the product of
(a) the amount of all dividend and distribution payments
on any series of Disqualified Capital Stock and Preferred Stock
of such Person and its Restricted Subsidiaries paid (other than
dividends paid in Capital Stock (other than Disqualified Capital
Stock)), accrued or scheduled to be paid or accrued during such
period, times
(b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective
consolidated federal, state and local tax rate of such Person,
expressed as a decimal.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person, for
any period, the aggregate amount of interest which, in conformity with GAAP,
would be set forth opposite the caption "interest expense" or any like caption
on an income statement for such Person and its Restricted Subsidiaries on a
consolidated basis including, but not limited to,
(1) Redeemable Dividends, whether paid or accrued, on Subsidiary
Preferred Stock,
(2) imputed interest included in Capitalized Lease Obligations
in accordance with GAAP,
(3) all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing,
(4) the net costs associated with Hedging Obligations,
(5) the interest portion of any deferred payment obligation in
accordance with GAAP,
(6) amortization of discount or premium, if any, and
(7) interest-equivalent costs associated with any Permitted
Receivables Financing, whether accounted for as interest expense or
loss on the sale of Receivables and Related Assets,
plus, without duplication,
(1) all net capitalized interest for such period, and
8
(2) all interest incurred or paid under any guarantee of
Indebtedness (including a guarantee of principal, interest or any
combination thereof) of any Person.
Notwithstanding the foregoing, the amortization of deferred financing
fees and expenses shall not be included in "CONSOLIDATED INTEREST EXPENSE."
"CONSOLIDATED NET INCOME" means, with respect to any Person, for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; PROVIDED, HOWEVER, that:
(1) the Net Income of any Person, other than a Restricted
Subsidiary of the referent Person, shall be included only to the
extent of the amount of dividends or distributions paid to the
referent Person or a Restricted Subsidiary of such referent Person;
(2) the Net Income of any Restricted Subsidiary of the Person in
question that is subject to any restriction or limitation on the
payment of dividends or the making of other distributions shall be
excluded to the extent of such restriction or limitation;
(3) solely for the purposes of determining the aggregate amount
available for Restricted Payments under clause (3)(a) of
Section 4.11(A) under this Indenture, the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to
the date of such acquisition shall be excluded;
(4) any net gain or loss resulting from an Asset Sale by the
Person in question or any of its Restricted Subsidiaries other than in
the ordinary course of business shall be excluded;
(5) all extraordinary gains and losses, non-recurring cumulative
effects of accounting changes and, without duplication, non-recurring
or unusual gains and losses and all restructuring charges shall be
excluded;
(6) 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)
shall be excluded;
(7) solely for the purposes of determining the aggregate amount
available for Restricted Payments under clause (3)(a) of
Section 4.11(A) under this Indenture, 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
shall be excluded; and
(8) any non-cash charges attributable to applying the purchase
of accounting in accordance with GAAP shall be excluded.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at Xxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
9
"CUMULATIVE CONSOLIDATED NET INCOME" means, with respect to any
Person, as of any date of determination, Consolidated Net Income from July 1,
1999 to such date of determination, taken as a single accounting period.
"DEFAULT" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"DEPOSITORY" means, with respect to the Notes issued in the form of
one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Company, which Person must be a clearing agency
registered under the Exchange Act.
"DESIGNATED PREFERRED STOCK" means Preferred Stock (not constituting
Disqualified Capital Stock) of the Company (excluding any Preferred Stock issued
on or prior to the Issue Date and any Preferred Stock issued in exchange or
substitution therefor) that is designated as Designated Preferred Stock pursuant
to an Officers' Certificate delivered to the Trustee on the issuance date
thereof, the cash proceeds of which are excluded from the calculation set forth
in clause (3)(b) of Section 4.11(A) of this Indenture.
"DESIGNATED SENIOR INDEBTEDNESS" as to the Company or any Guarantor,
as the case may be, means
(1) any Senior Indebtedness under the Senior Credit Facility,
and
(2) after the Senior Credit Facility has been paid in full and
terminated, any other Senior Indebtedness which at the time of
determination exceeds $25,000,000 in aggregate principal amount (or
accreted value in the case of Indebtedness issued at a discount)
outstanding or available under a committed facility, which is
specifically designated in the instrument evidencing such Senior
Indebtedness as "DESIGNATED SENIOR INDEBTEDNESS" by such Person and as
to which the Trustee has been given written notice of such
designation.
"DISQUALIFIED CAPITAL STOCK" means any Capital Stock of a Person or a
Restricted Subsidiary thereof which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable solely at the option of the holder thereof, in whole or in part,
on or prior to the maturity date of the Notes, for cash or securities
constituting Indebtedness; PROVIDED, HOWEVER, that Preferred Stock of a Person
or any Restricted Subsidiary thereof that is issued with the benefit of
provisions requiring a change of control offer or an asset sale offer to be made
for such Preferred Stock in the event of a change of control of or sale of
assets by such Person or Restricted Subsidiary which provisions have
substantially the same effect as the provisions described under Sections 4.17
and 4.13 of this Indenture, respectively, shall not be deemed to be Disqualified
Capital Stock solely by virtue of such provisions; PROVIDED, FURTHER, that if
such Capital Stock is issued pursuant to any plan for the benefit of employees
of the Company or its Subsidiaries or by any such plan to such employees, such
Capital Stock shall not constitute Disqualified Capital Stock solely because it
may be required to be repurchased by the Company in order to satisfy applicable
statutory or regulatory obligations.
"DOMESTIC RESTRICTED SUBSIDIARY" means any Restricted Subsidiary of
the Company that is organized under the laws of the United States or any State
thereof, or the District of Columbia.
10
"EBITDA" means, with respect to any Person and its Restricted
Subsidiaries, for any period, an amount equal to
(1) the sum of
(a) Consolidated Net Income for such period, plus
(b) the provision for taxes for such period based on
income or profits to the extent such income or profits were
included in computing Consolidated Net Income and any provision
for taxes utilized in computing net loss under clause (a) hereof,
plus
(c) Consolidated Interest Expense for such period, plus
(d) depreciation for such period on a consolidated basis,
plus
(e) amortization of intangibles for such period on a
consolidated basis, plus
(f) any other non-cash items reducing Consolidated Net
Income for such period (other than any non-cash item requiring an
accrual or reserve for cash disbursements in any future period),
minus
(2) all non-cash items increasing Consolidated Net Income for
such period (other than any non-cash item which represents a reversal
of an accrual or reserve initially recorded in anticipation of a cash
disbursement to be made in a future period),
all for such Person and its Restricted Subsidiaries determined on a consolidated
basis in accordance with GAAP; PROVIDED, HOWEVER, that, for purposes of
calculating EBITDA during any fiscal quarter, cash income from a particular
Investment (other than a Restricted Subsidiary) of such Person shall be included
only
(1) if cash income has been received by such Person with respect
to such Investment during each of the previous four fiscal quarters,
or
(2) if the cash income derived from such Investment is
attributable to Cash Equivalents.
"EQUITY OFFERING" means a sale by the Company of shares of its Common
Stock (however designated and whether voting or non-voting) (other than
Disqualified Capital Stock) and any and all rights, warrants or options to
acquire such Common Stock.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" has the meaning provided in the preamble to this
Indenture.
"FAIR MARKET VALUE" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market value
shall be de-
11
termined by the Board of Directors of the Company acting reasonably and in
good faith and shall be evidenced by a Board Resolution.
"GAAP" means generally accepted accounting principles consistently
applied as in effect in the United States from time to time.
"GUARANTEE" means the guarantee of the Obligations of the Company with
respect to the Notes by each Guarantor.
"GUARANTOR" means the issuer at any time of a Guarantee (so long as
such Guarantee remains outstanding).
"GUARANTOR SENIOR INDEBTEDNESS" means the principal of and premium, if
any, and interest on, and any and all other fees, expense reimbursement
obligations and other amounts due pursuant to the terms of all agreements,
documents and instruments providing for, creating, securing or evidencing or
otherwise entered into in connection with
(1) all Indebtedness of any Guarantor owed to lenders under the
Senior Credit Facility,
(2) all obligations of any Guarantor with respect to any
Hedging Obligations,
(3) all obligations of any Guarantor to reimburse any bank or
other person in respect of amounts paid under letters of credit,
acceptances or other similar instruments,
(4) all other Indebtedness of or any Guarantor which does not
provide that it is to rank PARI PASSU with or subordinate to the
Guarantee of such Guarantor, and
(5) all deferrals, renewals, extensions and refundings of, and
amendments, modifications and supplements to, any of the Guarantor
Senior Indebtedness described above.
Notwithstanding anything to the contrary in the foregoing, Guarantor
Senior Indebtedness will not include
(1) Indebtedness of any Guarantor to any of its Subsidiaries, or
to any Affiliate of such Guarantor or any of such Affiliate's
Subsidiaries,
(2) Indebtedness represented by the Guarantees,
(3) any Indebtedness which by the express terms of the agreement
or instrument creating, evidencing or governing the same is junior or
subordinate in right of payment to any item of Guarantor Senior
Indebtedness,
(4) any trade payable arising from the purchase of goods or
materials or for services obtained in the ordinary course of business,
(5) Indebtedness incurred in violation of the Indenture, unless
such Indebtedness consists of Indebtedness under the Senior Credit
Facility, and the holder(s) of such Indebted-
12
xxxx and their agents and representatives had no actual knowledge
at the time of incurrence that the incurrence of such Indebtedness
violated the Indenture,
(6) Indebtedness represented by Disqualified Capital Stock, and
(7) any Indebtedness to or guaranteed on behalf of, any
shareholders, director, officer or employee of such Guarantor or any
Subsidiary of such Guarantor.
"HEDGING OBLIGATIONS" means, with respect to any Person, the net
payment obligations of such Person under (a) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (b) other
agreements or arrangements entered into in order to protect such Person against
fluctuations in commodity prices, interest rates or currency exchange rates.
"HOLDER" or "NOTEHOLDER" means a Person in whose name a Note is
registered on the Registrar's book.
"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," "INCURABLE," and "INCURRING" shall have meanings
correlative to the foregoing); provided that a change in GAAP that results in an
obligation of such Person that exists at such time becoming Indebtedness shall
not be deemed an incurrence of such Indebtedness.
"INDEBTEDNESS" means (without duplication), with respect to any
Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is 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), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (excluding, without limitation, any balances that
constitute accounts payable or trade payables, and other accrued liabilities
arising in the ordinary course of business) if and to the extent any of the
foregoing indebtedness would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, and shall also include, to the extent
not otherwise included,
(1) any Capitalized Lease Obligations of such Person,
(2) obligations secured by a lien to which the property or
assets owned or held by such Person is subject, whether or not the
obligation or obligations secured thereby shall have been assumed;
provided that, if such obligations have not been assumed by such
Person, the amount of such Indebtedness shall be the lesser of (A) the
fair market value of such assets at such date of determination and (B)
the amount of such obligations,
(3) guarantees of items of other Persons which would be included
within this definition for such other Persons (whether or not such
items would appear upon the balance sheet of the guarantor),
(4) all obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction,
13
(5) Disqualified Capital Stock of such Person or any Restricted
Subsidiary thereof, and valued at its mandatory maximum redemption
price or liquidation preference plus accrued dividends,
(6) Obligations of any such Person under any hedging obligations
applicable to any of the foregoing (if and to the extent such hedging
obligations would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP);
provided that,
(1) the amount outstanding at any time of any Indebtedness
issued with original issue discount is the principal amount of
such Indebtedness less the remaining unamortized portion of the
original issue discount of such Indebtedness at such time as
determined in conformity with GAAP; and
(2) Indebtedness shall not include any liability for
federal, state, local or other taxes.
Guarantees of (or obligations with respect to letters of credit
supporting) Indebtedness otherwise included in the determination of such amount
shall not be included as Indebtedness.
"INDENTURE" means this Indenture as amended, restated or supplemented
from time to time.
"INDEPENDENT FINANCIAL ADVISOR" means an investment banking, financial
advisory, valuation or accounting firm of national reputation in the United
States
(1) which does not, and whose directors, officers and employees
or Affiliates do not, have a direct or indirect financial interest in
the Company and
(2) which, in the judgment of the Board of Directors of the
Company, is otherwise independent and qualified to perform the task
for which it is to be engaged.
"INITIAL NOTES" has the meaning provided in the preamble to this
Indenture.
"INITIAL PURCHASERS" refers to CIBC World Markets Corp. and Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
promulgated under the Securities Act.
"INTEREST PAYMENT DATE" means the stated maturity of an installment of
interest on the Notes.
"INVESTMENTS" means, with respect of any Person, directly or
indirectly, any advance, account receivable (other than an account receivable
arising in the ordinary course of business of such Person), loan or capital
contribution to (by means of transfers of property to others, payments for
property or services for the account or use of others or otherwise), the
purchase of any Capital Stock, bonds, notes, debentures, partnership or joint
venture interests or other securities of, the acquisition, by purchase or
otherwise, of all or substantially all of the business or assets or stock or
other evidence of beneficial ownership of, any Person or the making of
14
any investment in any Person. Investments shall exclude extensions of trade
credit on commercially reasonable terms in accordance with normal trade
practices of such Person, but shall include the repurchase of securities of
any Person by such Person.
For the purposes of Sections 4.11 and 4.16 of this Indenture,
(1) "INVESTMENT" shall include and be valued at the fair market
value of the net assets of any Restricted Subsidiary at the time that
such Restricted Subsidiary is designated an Unrestricted Subsidiary,
(2) the fair market value of the net assets of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated
a Restricted Subsidiary shall be deemed a repayment of such
Investment, and
(3) the amount of any Investment shall be the original cost of
such Investment plus the cost of all additional Investments by the
Company or any of its Restricted Subsidiaries, without any adjustments
for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment, reduced by the payment of
cash distributions in respect thereof;
PROVIDED, FURTHER, that no such payment of distributions or receipt of any such
other amounts shall reduce the amount of any Investment if such payment of
distributions or receipt of any such amounts would be included in Consolidated
Net Income. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition such Restricted Subsidiary would no longer constitute a Restricted
Subsidiary of the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Common Stock of such Restricted Subsidiary not sold or disposed of.
"ISSUE DATE" means June 16, 1999.
"LIEN" means, with respect to any property or assets of any Person,
any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including
without limitation, any Capitalized Lease Obligation, conditional sales, or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"MATURITY DATE" means May 1, 2009.
"MCII FINANCIAL SERVICES" means MCII Financial Services Inc, a
Delaware corporation, and any successor Person performing similar functions.
"NET INCOME" means, with respect to any Person, for any period, the
net income (loss) of such Person determined in accordance with GAAP.
"NET PROCEEDS" means
15
(1) in the case of any sale of Capital Stock by or equity
contribution to any Person, the aggregate net proceeds received by
such Person, after payment of expenses, commissions and the like
incurred in connection therewith, whether such proceeds are in cash or
in property (valued at the fair market value thereof, as determined in
good faith by the Board of Directors of such Person, at the time of
receipt),
(2) in the case of any exchange, exercise, conversion or
surrender of outstanding securities of any kind for or into shares of
Capital Stock of the Company which is not Disqualified Capital Stock,
the net book value of such outstanding securities on the date of such
exchange, exercise, conversion or surrender (plus any additional
amount required to be paid by the holder to such Person upon such
exchange, exercise, conversion or surrender, less any and all payments
made to the holders, e.g., on account of fractional shares and less
all expenses incurred by such Person in connection therewith), and
(3) in the case of any issuance of any Indebtedness by the
Company or any Restricted Subsidiary, the aggregate net cash proceeds
received by such Person after the payments of expenses, commissions,
underwriting discounts and the like incurred in connection therewith.
"NON-PAYMENT EVENT OF DEFAULT" means any event (other than a Payment
Default) the occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior Indebtedness.
"NOTES" means the Initial Notes and the Exchange Notes treated as a
single class of securities, as amended or supplemented from time to time in
accordance with the terms hereof, that are issued pursuant to this Indenture.
"OBLIGATIONS" means all obligations for principal, premium, interest,
penalties, charges, fees, fees and expenses of counsel, indemnities,
reimbursement obligations, damages, claims and other liabilities payable under
the documentation governing any Indebtedness.
"OFFERING MEMORANDUM" means the offering memorandum dated June 14,
1999 pursuant to which the Notes were originally offered.
"OFFICER" means, with respect to any Person, the Chief Executive
Officer, the Chief Financial Officer, Chief Accounting Officer, Treasurer,
President or any Vice President of such Person.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture.
"OPINION OF COUNSEL" means a written opinion from legal counsel who
and which is acceptable to the Trustee complying with the requirements of this
Indenture. Such legal counsel shall be outside counsel and not an employee of
or in-house counsel to the Company.
"PAYMENT DEFAULT" means any Default, whether or not any requirement
for the giving of notice, the lapse of time or both, or any other condition to
such Default becoming an Event of Default has occurred, in the payment of
principal of or premium, if any, or interest on or any other amount payable in
connection with Designated Senior Indebtedness.
16
"PERMITTED ASSET SWAP" means, with respect to any Person, the
substantially concurrent exchange of assets of such Person for assets of another
Person which are useful to the business of such aforementioned Person.
"PERMITTED BUSINESS" means any business (i) which is the same,
similar, ancillary or related to or that has manufacturing processes and
technologies similar to any of the businesses that the Company and its
Restricted Subsidiaries are engaged in on the Issue Date and (ii) in the
transportation industry.
"PERMITTED HOLDERS" means Xxxxxx Xxxxxxxxxx & Xxxx, Inc. ("JLL"),
investment funds managed by JLL, partners of JLL, an entity controlled by any of
the foregoing and/or by a trust of the type described hereafter, and/or a trust
for the benefit of any of the foregoing.
"PERMITTED INDEBTEDNESS" means:
(1) Indebtedness of the Company or any Restricted Subsidiary
arising under or in connection with one or more debt facilities
(including, without limitation, the Senior Credit Facility) or
commercial paper facilities or indentures providing for revolving
credit loans, term loans, receivables financing (including through the
sale of receivables to lenders or to special purpose entities formed
to borrow from lenders against receivables), letters of credit or
other long-term indebtedness, in each case, as amended, restated,
modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time, in an aggregate principal amount not to exceed
at any time outstanding the sum of (A) $333,000,000, plus (B) the
greater of (x) $117,000,000 and (y) the amount equal to the sum of 85%
of the net book value of accounts receivable, 60% of the net book
value of inventory (determined on a first-in-first-out basis) and 50%
of the book value of bus lease and loan portfolio assets, of the
Company and its Restricted Subsidiaries on a consolidated basis at the
time such Indebtedness is incurred, as determined in accordance with
GAAP, less (C) any amounts outstanding under subclause (10) of this
definition, less (D) in case of clauses (A) and (B), any mandatory
prepayments actually made thereunder (to the extent, in the case of
payments of revolving credit borrowings, that the corresponding
commitments have been permanently reduced) or scheduled payments
actually made thereunder (except to the extent any such prepayments or
payments are made in connection with the refinancing of such
Indebtedness);
(2) Indebtedness under (a) the Notes outstanding on the Issue
Date and (b) the Guarantees;
(3) Indebtedness not covered by any other clause of this
definition which is outstanding on the Issue Date;
(4) Indebtedness of the Company to any Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary to the Company or another
Restricted Subsidiary;
(5) Purchase Money Indebtedness and Capitalized Lease
Obligations incurred to acquire property used or useful in the
ordinary course of business which Purchase Money Indebtedness and
Capitalized Lease Obligations do not in the aggregate exceed at any
one time outstanding an amount equal to the greater of (a) $25,000,000
and (b) 3% of the Total Assets of the Company determined on a
consolidated basis, as shown on the balance sheet of the Company as of
the end of the most recent fiscal quarter, in accordance with GAAP;
17
(6) Hedging Obligations;
(7) Refinancing Indebtedness;
(8) Indebtedness of the Company or any Restricted Subsidiary
arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument inadvertently (except in the case
of daylight overdrafts) drawn against insufficient funds in the
ordinary course of business; PROVIDED, that such Indebtedness is
extinguished within five Business Days of incurrence;
(9) Indebtedness of the Company or any Restricted Subsidiary
consisting of guarantees, indemnities or obligations in respect of
purchase price adjustments (including adjustments in the purchase
price related to the performance or results of any acquired business)
in connection with the acquisition or disposition of assets permitted
under the Indenture;
(10) Indebtedness of a Receivables Subsidiary pursuant to a
Permitted Receivables Financing; PROVIDED that after giving effect to
the incurrence thereof, the Company could incur at least $1.00 of
Indebtedness under subclauses (1)(A) or (1)(B) of this definition in
compliance with Section 4.10 of this Indenture;
(11) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or such Restricted Subsidiary, as the case may be, issued in
the ordinary course of business of the Company or such Restricted
Subsidiary, including, without limitation, in order to provide
security for worker's compensation claims or payment obligations in
connection with self-insurance or similar requirements in the ordinary
course of business and other Indebtedness with respect to workers'
compensation claims, self-insurance obligations, performance, surety
and similar bonds and completion guarantees provided by the Company or
any Restricted Subsidiary in the ordinary course of business;
(12) guarantees of Indebtedness otherwise permitted under this
Indenture; and
(13) additional Indebtedness of the Company and its Restricted
Subsidiaries not to exceed $65,000,000 in aggregate principal amount
at any one time outstanding.
"PERMITTED INVESTMENTS" means Investments made on or after the Issue
Date consisting of:
(1) Investments by the Company, or by a Restricted Subsidiary
thereof, in the Company or a Restricted Subsidiary;
(2) Investments by the Company, or by a Restricted Subsidiary
thereof, in a Person, if as a result of such Investment
(a) such Person becomes a Restricted Subsidiary of the
Company, or
(b) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted
Subsidiary thereof;
18
(3) Investments in cash and Cash Equivalents;
(4) loans and advances made to officers and employees of the Company
and its Restricted Subsidiaries in the ordinary course of business not to
exceed $5,000,000 in the aggregate at any one time outstanding;
(5) an Investment that is made by the Company or a Restricted
Subsidiary thereof in the form of any Capital Stock, bonds, notes,
debentures, partnership or joint venture interests or other securities that
are issued by a third party to the Company or such Restricted Subsidiary
solely as partial consideration for the consummation of an Asset Sale that
is otherwise permitted under Section 4.13 of this Indenture;
(6) Hedging Obligations entered into in the ordinary course of the
Company's or its Restricted Subsidiaries' business and not for speculative
purposes;
(7) notes or chattel paper received by the Company or a Restricted
Subsidiary as consideration for the ordinary course of business sale or
lease of buses;
(8) Investments in prepaid expenses, negotiable instruments held for
collection and lease, utility and workers compensation, performance and
similar deposits entered into as a result of the operations of the business
in the ordinary course of business;
(9) Investments in any of the Notes;
(10) receivables owing to the Company or any Restricted Subsidiary
created in the ordinary course of business;
(11) Investments in connection with a Permitted Receivables Financing
by or to any Receivables Subsidiary, including Investments of funds held in
accounts permitted or required by the arrangements governing such Permitted
Receivables Financing or any related Indebtedness;
(12) Investments in securities of trade debtors or customers received
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade debtors or customers or in good
faith settlement of delinquent obligations of such trade creditors or
customers;
(13) obligations of one or more officers or other employees of the
Company or any of its Restricted Subsidiaries in connection with such
officer's or employee's acquisition of shares of Common Stock of the
Company so long as no cash is paid by the Company or any of its Restricted
Subsidiaries to such officers or employees in connection with the
acquisition of any such obligations;
(14) Investments acquired in exchange for, or out of the Net Proceeds
(which have not, and will not, be included pursuant to clause (3)(b) of
Section 4.11(A) under this Indenture) of a substantially concurrent
offering of, shares of Capital Stock (other than Disqualified Capital
Stock) of the Company (or options, warrants or other rights to acquire such
Capital Stock);
(15) Investments in Unrestricted Subsidiaries not to exceed an amount
equal to $20,000,000 in the aggregate at any one time outstanding; and
19
(16) additional Investments the amount of which when made, when taken
together with the then outstanding amount of other Investments made under
this clause (16), shall not exceed the greater of (a) $30,000,000, or (b)
4% of Total Assets of the Company determined on a consolidated basis, as
shown on the balance sheet of the Company as of the end of the most recent
fiscal quarter, in accordance with GAAP.
"PERMITTED RECEIVABLES FINANCING" means a transaction or series of
transactions (including amendments, supplements, extensions, renewals,
replacements, refinancings or modifications thereof) pursuant to which a
Receivables Subsidiary purchases Receivables and Related Assets from the Company
or any Subsidiary and finances such Receivables and Related Assets through the
issuance of indebtedness or equity interests or through the sale of the
Receivables and Related Assets or a fractional undivided interest in the
Receivables and Related Assets; provided that:
(1) the Board of Directors shall have determined in good faith
that such Permitted Receivables Financing is economically fair and
reasonable to the Company and the Receivables Subsidiary;
(2) all sales of Receivables and Related Assets to or by the
Receivables Subsidiary are made at fair market value (as determined in
good faith by the Board of Directors of the Company);
(3) the financing terms, covenants, termination events and other
provisions thereof shall be market terms (as determined in good faith
by the Board of Directors of the Company);
(4) no portion of the Indebtedness of a Receivables Subsidiary
is guaranteed by or is recourse to the Company or any Restricted
Subsidiary (other than recourse for customary representations,
warranties, covenants and indemnities, none of which shall relate to
the collectibility of the Receivables and Related Assets); and
(5) neither the Company nor any Subsidiary has any obligation to
maintain or preserve the Receivables Subsidiary's financial condition.
"PERMITTED TAX SHARING AGREEMENT" means any agreement between or among
the Company and/or any of its Restricted Subsidiaries and any other Person or
Persons which provides for consolidated federal tax return reporting by the
parties thereto; PROVIDED that any such agreement shall not result in any direct
or indirect payments by the Company and its Restricted Subsidiaries in respect
of federal tax obligations in excess of payments that would have been made in
the absence of such agreement.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
"PREFERRED STOCK" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders
of other Capital Stock issued by such Person.
20
"PROPERTY" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such Person and its Subsidiaries under
GAAP.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of any Person
incurred for the purpose of financing all or any part of the purchase price, or
the cost of installation, construction or improvement of, any Property.
"QUALIFIED INSTITUTIONAL BUYER" shall have the meaning specified in
Rule 144A promulgated under the Securities Act.
"RECEIVABLES AND RELATED ASSETS" means accounts receivable and
instruments, chattel paper, obligations, general intangibles and other similar
assets, in each case relating to such receivables, including interests in
merchandise or goods, the sale or lease of which gave rise to such receivable,
related contractual rights, guarantees, insurance proceeds, collections, other
related assets and proceeds of all of the foregoing.
"RECEIVABLES SUBSIDIARY" means a Wholly Owned Restricted Subsidiary
which is established for the limited purpose of acquiring and financing
Receivables and Related Assets and engaging in activities ancillary thereto.
"RECORD DATE" for interest payable on any Interest Payment Date
(except a date for payment of default interest) means the April 15 and October
15 (whether or not a Business Day) as the case may be, immediately preceding
such Interest Payment Date.
"REDEEMABLE DIVIDEND" means, for any cash dividend or distribution
with regard to Preferred Stock, the quotient of the dividend or distribution
divided by the difference between one and the maximum statutory federal income
tax rate (expressed as a decimal number between 1 and 0) then applicable to the
issuer of such Preferred Stock.
"REDEMPTION DATE" when used with respect to any Note to be redeemed
means the date fixed for such redemption pursuant to this Indenture.
"REDEMPTION PRICE" when used with respect to any Note to be redeemed
means the price fixed for such redemption pursuant to this Indenture.
"REFINANCING INDEBTEDNESS" means Indebtedness that refunds, refinances
or extends any Indebtedness of the Company outstanding on the Issue Date or
other Indebtedness permitted to be incurred by the Company or its Restricted
Subsidiaries pursuant to the terms of the Indenture, but only to the extent that
(1) the Refinancing Indebtedness is subordinated to the Notes to
at least the same extent as the Indebtedness being refunded,
refinanced or extended, if at all,
(2) the Refinancing Indebtedness is scheduled to mature either
(a) no earlier than the Indebtedness being refunded,
refinanced or extended, or
(b) after the maturity date of the Notes,
21
(3) the portion, if any, of the Refinancing Indebtedness that is
scheduled to mature on or prior to the maturity date of the Notes has a
Weighted Average Life to Maturity at the time such Refinancing Indebtedness
is incurred that is equal to or greater than the Weighted Average Life to
Maturity of the portion of the Indebtedness being refunded, refinanced or
extended that is scheduled to mature on or prior to the maturity date of
the Notes, and
(4) such Refinancing Indebtedness is in an aggregate principal amount
that is equal to or less than the sum of
(a) the aggregate principal amount then outstanding under the
Indebtedness being refunded, refinanced or extended,
(b) the amount of accrued and unpaid interest, if any, and
premiums owed, if any, not in excess of preexisting prepayment
provisions on such Indebtedness being refunded, refinanced or extended
and
(c) the amount of customary fees, expenses and costs related to
the incurrence of such Refinancing Indebtedness.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of June 16, 1999 among the Company, the Guarantors and CIBC
World Markets Corp. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as
Initial Purchasers.
"REGULATION S" means Regulation S promulgated under the Securities
Act.
"RESTRICTED PAYMENT" means any of the following:
(1) the declaration or payment of any dividend or any other
distribution or payment on Capital Stock of the Company or any
Restricted Subsidiary of the Company or any payment made to the direct
or indirect holders (in their capacities as such) of Capital Stock of
the Company or any Restricted Subsidiary of the Company (other than
(a) dividends or distributions payable solely in Capital Stock (other
than Disqualified Capital Stock) or in options, warrants or other
rights to purchase such Capital Stock (other than Disqualified Capital
Stock), and (b) in the case of Restricted Subsidiaries of the Company,
dividends or distributions payable to the Company or to a Restricted
Subsidiary of the Company and PRO RATA dividends or distributions
payable to the other holders of Common Stock of such Restricted
Subsidiary),
(2) the purchase, redemption or other acquisition or retirement
for value of any Capital Stock of the Company or any of its Restricted
Subsidiaries (other than Capital Stock owned by the Company or a
Wholly Owned Restricted Subsidiary of the Company, excluding
Disqualified Capital Stock) or any option, warrants or other rights to
purchase such Capital Stock,
(3) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement
for value, prior to any scheduled maturity, scheduled repayment or
scheduled sinking fund payment, of any Indebtedness which is
subordinated in right of payment to the Notes (other than subordinated
Indebtedness acquired in an-
22
ticipation of satisfying a scheduled sinking fund obligation,
principal installment or final maturity, in each case due within
one year of the date of acquisition),
(4) the making of any Investment or guarantee of any Investment
in any Person other than a Permitted Investment,
(5) any designation of a Restricted Subsidiary as an
Unrestricted Subsidiary (valued at the fair market value of the net
assets of such Restricted Subsidiary on the date of such designation),
and
(6) forgiveness of any Indebtedness of an Affiliate of the
Company to the Company or a Restricted Subsidiary of the Company.
"RESTRICTED SECURITY" has the meaning set forth in Rule 144(a)(3)
promulgated under the Securities Act; PROVIDED that the Trustee shall be
entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether any Note is a Restricted Security.
"RESTRICTED SUBSIDIARY" means a Subsidiary of the Company other than
an Unrestricted Subsidiary and includes all of the Subsidiaries of the Company
existing as of the Issue Date. The Board of Directors of the Company may
designate any Unrestricted Subsidiary as a Restricted Subsidiary if immediately
after giving effect to such action (and treating any Acquired Indebtedness as
having been incurred at the time of such action),
(1) the Company could have incurred at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to
Section 4.10 of this Indenture and
(2) no Default or Event of Default shall have occurred and be
continuing or result therefrom.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended,and the
rules and regulations of the Commission promulgated thereunder.
"SENIOR CREDIT FACILITY" means the Credit Agreement dated as of June
16, 1999, among the Company, the lenders party thereto in their capacities as
lenders thereunder and the Canadian Imperial Bank of Commerce, as agent,
together with the related documents thereto (including, without limitation, any
guarantee agreements and security documents), in each case as such agreements
may be amended (including any amendment and restatement thereof), supplemented
or otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings thereunder (PROVIDED that such
increase in borrowings is permitted by Section 4.10 of this Indenture ) or
adding Restricted Subsidiaries of the Company as additional borrowers or
guarantors thereunder) all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the same or
any other agent, lender or group of lenders.
"SENIOR INDEBTEDNESS" means the principal of and premium, if any, and
interest on, and any and all other fees, expense reimbursement obligations and
other amounts due pursuant to the terms of all agree-
23
ments, documents and instruments providing for, creating, securing or
evidencing or otherwise entered into in connection with
(1) all Indebtedness of the Company owed to lenders under the
Senior Credit Facility,
(2) all obligations of the Company with respect to any Hedging
Obligations,
(3) all obligations of the Company to reimburse any bank or
other person in respect of amounts paid under letters of credit,
acceptances or other similar instruments,
(4) all other Indebtedness of the Company which does not provide
that it is to rank PARI PASSU with or subordinate to the Notes and
(5) all deferrals, renewals, extensions and refundings of, and
amendments, modifications and supplements to, any of the Senior
Indebtedness described above.
Notwithstanding anything to the contrary in the foregoing, Senior
Indebtedness will not include
(1) Indebtedness of the Company to any of its Subsidiaries, or
to any Affiliate of the Company or any of such Affiliate's
Subsidiaries,
(2) Indebtedness represented by the Notes,
(3) any Indebtedness which by the express terms of the agreement
or instrument creating, evidencing or governing the same is junior or
subordinate in right of payment to any item of Senior Indebtedness,
(4) any trade payable arising from the purchase of goods or
materials or for services obtained in the ordinary course of business,
(5) Indebtedness incurred in violation of this Indenture, unless
such Indebtedness consists of Indebtedness under the Senior Credit
Facility, and the holder(s) of such Indebtedness and their agents and
representatives had no actual knowledge at the time of incurrence that
the incurrence of such Indebtedness violated the Indenture,
(6) Indebtedness represented by Disqualified Capital Stock, and
(7) any Indebtedness to or guaranteed on behalf of, any
shareholders, director, officer or employee of the Company or any
Subsidiary of the Company.
"SIGNIFICANT RESTRICTED SUBSIDIARY" means, with respect to any Person,
any Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1.02 (w) of Regulation S-X under the
Securities Act, as such Rule is in effect on the Issue Date.
24
"SUBSIDIARY" of any specified Person means any corporation,
partnership, limited liability company, joint venture, association or other
business entity, whether now existing or hereafter organized or acquired,
(1) in the case of a corporation, of which more than 50% of the
total voting power of the Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held by such first-named
Person or any of its Subsidiaries; or
(2) in the case of a partnership, limited liability company,
joint venture, association or other business entity, with respect to
which such first-named Person or any of its Subsidiaries has the power
to direct or cause the direction of the management and policies of
such entity by contract or otherwise or if in accordance with GAAP
such entity is consolidated with the first-named Person for financial
statement purposes.
"TOTAL ASSETS" means the total consolidated assets of the Company and
its Restricted Subsidiaries, as set forth on the Company's most recent
consolidated balance sheet.
"TRANSACTIONS" has the meaning provided to such term under the heading
"The Transactions" in the Offering Memorandum.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939
(15 U.S. Code sections 77aaa-77bbbb) as in effect on the date of this Indenture
(except as provided in Section 8.03 hereof).
"TRUST OFFICER" means any officer or assistant officer of the Trustee
with direct responsibility for the administration of this Indenture and also
means, with respect to a particular corporate trust officer, any other officer
to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"UNRESTRICTED SUBSIDIARY" means
(1) any Subsidiary of an Unrestricted Subsidiary and
(2) any Subsidiary of the Company which is classified after the
Issue Date as an Unrestricted Subsidiary by a resolution adopted by
the Board of Directors of the Company;
PROVIDED that a Subsidiary may be so classified as an Unrestricted Subsidiary
only if
(a) such classification is in compliance with Section 4.11
of this Indenture, and
(b) neither the Company nor any Restricted Subsidiary shall
at any time
(i) provide a guarantee of, or similar credit support to,
any Indebtedness of such Subsidiary (including any undertaking, agreement
or instrument evidencing such Indebtedness),
25
(ii) be directly or indirectly liable for any Indebtedness
of such Subsidiary or
(iii) be directly or indirectly liable for any other
Indebtedness which provides that the holder thereof may (upon notice, lapse
of time or both) declare a default thereon (or cause the payment thereof to
be accelerated or payable prior to its final scheduled maturity) upon the
occurrence of a default with respect to any other Indebtedness that is
Indebtedness of such Subsidiary (including any corresponding right to take
enforcement action against such Subsidiary),
except in the case of clause (i) or (ii) to the extent
(i) that the Company or such Restricted Subsidiary could
otherwise provide such a guarantee or incur such Indebtedness (other
than as Permitted Indebtedness) pursuant to Section 4.10 under this
Indenture and
(ii) the provision of such guarantee and the incurrence of
such Indebtedness otherwise would be permitted under Section 4.11 of
this Indenture.
The Trustee shall be given prompt notice by the Company of each
resolution adopted by the Board of Directors of the Company under this
provision, together with a copy of each such resolution adopted.
"U.S. GOVERNMENT OBLIGATIONS" means (a) securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; PROVIDED that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing
(1) the then outstanding aggregate principal amount of such
Indebtedness into
(2) the sum of the total of the products obtained by multiplying
(a) the amount of each then remaining installment, sinking
fund, serial maturity or other required payment of principal,
including payment at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest
one-twelfth) which will elapse between such date and the
making of such payment.
26
"WHOLLY OWNED RESTRICTED SUBSIDIARY" means any Restricted Subsidiary,
all of the outstanding voting securities (other than directors' qualifying
shares) of which are owned, directly or indirectly, by the Company. For purposes
of this definition, any directors' qualifying shares or investments by foreign
nationals mandated by applicable law shall be disregarded in determining the
ownership of a Restricted Subsidiary.
Section 1.02. OTHER DEFINITIONS.
The definitions of the following terms may be found in the sections
indicated as follows:
Term Defined in Section
"Affiliate Transaction".............................. 4.14
"Agent Members"...................................... 2.15
"Authenticating Agent"............................... 2.02
"Bankruptcy Law"..................................... 6.01
"Business Day"....................................... 13.07
"Change of Control Offer"............................ 4.17
"Change of Control Payment Date"..................... 4.17
"Change of Control Purchase Price"................... 4.17
"Covenant Defeasance"................................ 9.03
"Custodian".......................................... 6.01
"Event of Default"................................... 6.01
"Excess Proceeds Offer".............................. 4.13
"Excess Proceeds Payment Date"....................... 4.13
"Funding Guarantor".................................. 10.03
"Global Notes"....................................... 2.01
"Guarantee Payment Blockage Period".................. 11.03
"Guarantor Representative"........................... 11.03
"Initial Blockage Period"............................ 12.03
"Initial Guarantee Blockage Period".................. 11.03
"Legal Defeasance"................................... 9.02
"Legal Holiday"...................................... 13.07
"Paying Agent"....................................... 2.03
"Payment Blockage Period"............................ 12.03
"Registrar".......................................... 2.03
"Regulation S Global Note"........................... 2.01
"Representative"..................................... 12.03
"Resale Restriction Termination Date"................ 2.16
"Rule 144A Global Note".............................. 2.01
Section 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the portion
of such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"INDENTURE SECURITIES" means the Notes.
27
"INDENTURE SECURITYHOLDER" means a Noteholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR ON THE INDENTURE SECURITIES" means the Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings therein assigned to them.
Section 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) words used herein implying any gender shall apply to every
gender.
ARTICLE 2
THE NOTES
Section 2.01. FORM AND DATING.
The Initial Notes and the Trustee's certificate of authentication
shall be substantially in the form of EXHIBIT A hereto. The Exchange Notes and
the Trustee's certificate of authentication shall be substantially in the form
of EXHIBIT B hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or Depository rule or usage. The form of
the Notes and any notation, legend or endorsement on them shall be satisfactory
to both the Company and the Trustee. Each Note shall be dated the date of its
issuance and shall show the date of its authentication.
The terms and provisions contained in the Notes, annexed hereto as
EXHIBITS A and B, shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
28
The Notes shall be issued initially in the form of two or more
permanent global Notes (the "GLOBAL NOTES"). Notes offered and sold (i) in
reliance on Rule 144A shall be issued initially in the form of one or more
permanent Global Notes in registered form, substantially in the form set forth
in EXHIBIT A (the " RULE 144A GLOBAL NOTE") and (ii) in offshore transactions in
reliance on Regulation S shall be issued initially in the form of one or more
permanent global Notes in registered form, substantially in the form set forth
in Exhibit A (the "REGULATION S GLOBAL NOTE"), and in each case shall be
deposited with the Trustee, as custodian for the Depository, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of any Global Note may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for
the Depository, as hereinafter provided.
Section 2.02. EXECUTION AND AUTHENTICATION.
The Notes shall be executed on behalf of the Company by two Officers
of the Company or an Officer and the Secretary of the Company. Such signature
may be either manual or facsimile. The Company's seal may be impressed,
affixed, imprinted or reproduced on the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. Such signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee or an authentication agent (the "AUTHENTICATING AGENT")
shall authenticate (i) Initial Notes for original issue (a) on the date of this
Indenture in the aggregate principal amount not to exceed $152,250,000 and (b)
after the date of this Indenture one or more additional series in aggregate
principal amounts of not less than $25,000,000 per series, subject to compliance
with Section 4.10 and provided that no Default or Event of Default shall exist
or would result therefrom and (ii) Exchange Notes from time to time for issue
only in exchange for a like principal amount of Initial Notes, in each case upon
written orders of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of Notes to be authenticated, the
date on which the Notes are to be authenticated and the aggregate principal
amount of Notes outstanding on the date of authentication, whether the Notes are
to be Initial Notes or Exchange Notes, and shall further specify the amount of
such Notes to be issued as the Global Note or Certificated Notes. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in Section 2.07 hereof.
Notwithstanding the foregoing, all Notes issued under this Indenture
shall vote and consent together on all matters (as to which any of such Notes
may vote or consent) as one class and no series of Notes will have the right to
vote or consent as a separate class on any matter.
The Trustee may, at the Company's expense, appoint an Authenticating
Agent to authenticate Notes. Any such appointment shall be evidenced by an
instrument signed by a Trust Officer, a copy of which shall be furnished to the
Company. An Authenticating Agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such Authenticating Agent. An Authenticating Agent
has the same right as an Agent to deal with the Company and Affiliates of the
Company.
29
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 and integral multiples thereof.
Section 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("REGISTRAR"), an office
or agency located in the Borough of Manhattan, City of New York, State of New
York where Notes may be presented for payment ("PAYING AGENT") and an office or
agency where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served. The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Registrar shall provide the
Company a current copy of such register from time to time upon request of the
Company. The Company may have one or more co-Registrars and one or more
additional Paying Agents. Neither the Company nor any Affiliate of the Company
may act as Paying Agent. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to any Noteholder.
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. The Company shall
notify the Trustee of the name and address of any such Agent. If the Company
fails to maintain a Registrar or Paying Agent, or agent for service of notices
and demands, or fails to give the foregoing notice, the Trustee shall act as
such. The Company initially appoints the Trustee as Registrar, Paying Agent and
agent for service of notices and demands in connection with the Notes.
Section 2.04. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all assets held by the Paying Agent for the payment
of principal of, premium, if any, or interest on Notes (whether such assets have
been distributed to it by the Company or any other obligor on the Notes), and
shall notify the Trustee in writing of any Default in making any such payment.
The Company at any time may require a Paying Agent to distribute all assets held
by it to the Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any Payment Default, upon written request to
a Paying Agent, require such Paying Agent to forthwith distribute to the Trustee
all assets so held in trust by such Paying Agent together with a complete
accounting of such sums. Upon distribution to the Trustee of all assets that
shall have been delivered by the Company to the Paying Agent, the Paying Agent
shall have no further liability for such assets.
Section 2.05. NOTEHOLDER 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
Noteholders. If the Trustee is not the Registrar, the Company shall furnish or
cause the Registrar to furnish to the Trustee at least seven (7) 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 Noteholders which list may be
conclusively relied on by the Trustee.
Section 2.06. TRANSFER AND EXCHANGE.
Subject to the provisions of Sections 2.15 and 2.16, when Notes are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Notes or to exchange such Notes for an equal
30
principal amount of Notes of other authorized denominations of the same
series, the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met;
PROVIDED, HOWEVER, that the Notes presented or surrendered for registration
of transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar
or co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfer and exchanges,
the Company shall execute and the Trustee shall authenticate Notes at the
Registrar's or co-Registrar's request. No service charge shall be made for
any registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge
in connection therewith payable by the transferor of such Notes (other than
any such transfer taxes or similar governmental charge payable upon exchanges
or transfers pursuant to Section 2.10, 3.06, 4.13, 4.17 or 9.06, in which
event the Company shall be responsible for the payment of such taxes).
The Registrar or co-Registrar shall not be required to register the
transfer of or exchange of any Note (i) during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of Notes and
ending at the close of business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to Article 3, except the unredeemed
portion of any Note being redeemed in part.
Any Holder of a Global Note shall, by acceptance of such Global Note,
agree that transfers of beneficial interests in such Global Notes may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry.
Section 2.07. REPLACEMENT NOTES.
If a mutilated Note is surrendered to the Trustee or if the Holder
presents evidence to the satisfaction of the Company and the Trustee that the
Note has been lost, destroyed or wrongfully taken, the Company shall issue and
the Trustee shall authenticate a replacement Note. An indemnity bond may be
required by the Company or the Trustee that is sufficient in the judgment of the
Company and the Trustee to protect the Company, the Trustee or any Agent from
any loss which any of them may suffer if a Note is replaced. In every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
to the Trustee evidence to their satisfaction of the destruction, loss or the
theft of such Note and the ownership thereof. Each of the Company and the
Trustee may charge for its expenses in replacing a Note. In the event any such
mutilated, lost, destroyed or wrongfully taken Note has become due and payable,
the Company in their discretion may pay such Note instead of issuing a new Note
in replacement thereof. The provisions of this Section 2.07 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect
to replacement or payment of mutilated, lost, destroyed or wrongfully taken
Notes.
Every replacement Note is an additional Obligation of the Company.
Section 2.08. OUTSTANDING NOTES.
Notes outstanding at any time are all Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding until the Company
and the Trustee receive proof satisfactory to each of
31
them that the replaced Note is held by a protected purchaser. A mutilated
Note ceases to be outstanding upon surrender of such Note and replacement
thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date, the Paying Agent holds
U.S. legal tender sufficient to pay all of the principal and interest due on the
Notes payable on that date and is not prohibited from paying such money to the
Holders thereof pursuant to the terms of this Indenture, then on and after that
date such Notes cease to be outstanding and interest on them ceases to accrue.
Section 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver, consent or notice, Notes owned by
the Company or any of its Affiliates shall be considered as though they are not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Trust Officer of the Trustee actually knows are so owned shall be
so considered. The Company shall notify the Trustee, in writing, when it or any
of its Affiliates repurchases or otherwise acquires Notes, of the aggregate
principal amount of such Notes so repurchased or otherwise acquired.
Section 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes upon receipt of a written
order of the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of temporary Notes to be authenticated and
the date on which the temporary Notes are to be authenticated. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
upon receipt of a written order of the Company pursuant to Section 2.02
definitive Notes in exchange for temporary Notes.
Section 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent, and no one else, shall cancel and, at the written direction of the
Company, dispose of and deliver evidence of such disposal of all Notes
surrendered for registration of transfer, exchange, payment or cancellation.
Subject to Section 2.07, the Company may not issue new Notes to replace Notes
that it has paid or delivered to the Trustee for cancellation. If the Company
shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Notes unless
and until the same are surrendered to the Trustee for cancellation pursuant to
this Section 2.11.
Section 2.12. DEFAULTED INTEREST.
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under Bankruptcy Law) at the rate of
interest then borne by the Notes. The Company shall, to the extent lawful,
pay interest on overdue installments of interest (without regard to any
applicable grace periods) at the rate of interest then borne by the Notes.
32
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest to the Persons who are Holders on a subsequent
special record date, which date shall be the fifteenth day next preceding the
date fixed by the Company for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each
Holder, as of a recent date selected by the Company, with a copy to the Trustee,
a notice that states the subsequent special record date, the payment date and
the amount of defaulted interest, and interest payable on such defaulted
interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid prior to the
expiration of the 30-day period set forth in Section 6.01(b) shall be paid to
Holders as of the Record Date for the Interest Payment Date for which interest
has not been paid.
Section 2.13. DEPOSIT OF MONEYS.
Prior to 10:00 a.m., New York City time, on each Interest Payment
Date, Redemption Date, Change of Control Payment Date, Excess Proceeds Payment
Date and Maturity Date, the Company shall have deposited with the Paying Agent
in immediately available funds U.S. legal tender sufficient to make payments, if
any, due on such Interest Payment Date, Redemption Date, Change of Control
Payment Date, Excess Proceeds Payment Date or Maturity Date, as the case may be,
in a timely manner which permits the Trustee to remit payment to the Holders on
such Interest Payment Date, Redemption Date, Change of Control Payment Date,
Excess Proceeds Payment Date or Maturity Date, as the case may be. The
principal and interest on Global Notes shall be payable to the Depository or its
nominee, as the case may be, as the sole registered owner and the sole holder of
the Global Notes represented thereby. The principal and interest on Notes in
certificated form shall be payable at the office of the Paying Agent.
Section 2.14. CUSIP NUMBER.
The Company in issuing the Notes may use one or more "CUSIP" numbers,
and if so, the Trustee shall use such CUSIP numbers 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
numbers printed in the notice or on the Notes, and that reliance may be placed
only on the other identification numbers printed on the Notes. The Company
shall promptly notify the Trustee of any change in the CUSIP number.
Section 2.15. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) The Global Notes initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Section 2.18.
Members of, or participants in, the Depository ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository or under the Global Note, and the Depository may
be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of the Global Note for all purposes whatsoever.
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 the Depository
or impair, as between the De-
33
pository and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder.
(b) Interests of beneficial owners in the Global Notes may be
transferred or exchanged for Certificated Notes in accordance with the rules and
procedures of the Depository and the provisions of Section 2.16. In addition,
Certificated Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in Global Notes if (i) the Depository (x) notifies
the Company that it is unwilling or unable to continue as Depository for any
Global Note or (y) has ceased to be a clearing company registered under the
Exchange Act and, in each case, a successor depositary is not appointed by the
Company within 90 days of such notice or (ii) a Default or an Event of Default
has occurred and is continuing and the Registrar has received a written request
from the Depository to issue Certificated Notes.
(c) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall, upon receipt of an authentication order
from the Company in the form of an Officers' Certificate, authenticate and
deliver, to each beneficial owner identified by the Depository in writing in
exchange for its beneficial interest in the Global Notes, an equal aggregate
principal amount of Certificated Notes of authorized denominations.
(d) Any Certificated Note constituting a Restricted Security
delivered in exchange for an interest in a Global Note pursuant to paragraph (b)
or (c) shall, except as otherwise provided by Section 2.16, bear the Private
Placement Legend.
(e) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
Section 2.16. REGISTRATION OF TRANSFERS AND EXCHANGES.
(a) TRANSFER AND EXCHANGE OF CERTIFICATED NOTES. When
Certificated Notes are presented to the Registrar or co-Registrar with a
request:
(i) to register the transfer of the Certificated Notes; or
(ii) to exchange such Certificated Notes for an equal principal
amount of Certificated Notes of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if the requirements under this Indenture as set forth in this
Section 2.16 for such transactions are met; PROVIDED, HOWEVER, that the
Certificated Notes presented or surrendered for registration of transfer or
exchange:
(I) shall be duly endorsed or accompanied by a written instrument
of transfer in form satisfactory to the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing;
and
(II) in the case of Certificated Notes the offer and sale of which
have not been registered under the Securities Act and are presented for
transfer or exchange prior to (x) the date which is two years after the
later of the date of original issue and the last date on which the Company
or any Affiliate
34
of the Company was the owner of such Note, or any predecessor thereto
and (y) such later date, if any, as may be required by any subsequent
change in applicable law (the "RESALE RESTRICTION TERMINATION DATE"),
such Certificated Notes shall be accompanied, in the sole discretion of
the Company, by the following additional information and documents, as
applicable:
(A) if such Certificated Note is being delivered to the
Registrar or co-Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification to that effect
(substantially in the form of EXHIBIT C hereto); or
(B) if such Certificated Note is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A, a
certification to that effect (substantially in the form of EXHIBIT C
hereto); or
(C) if such Certificated Note is being transferred in
reliance on Regulation S, delivery of a certification to that effect
(substantially in the form of EXHIBIT C hereto) and a transferor
certificate for Regulation S transfers substantially in the form of
EXHIBIT E hereto; or
(D) if such Certificated Note is being transferred to an
Institutional Accredited Investor, delivery of certification to that
effect (substantially in the form of EXHIBIT C hereto), certificates
of the transferee in substantially the form of EXHIBIT D and, at the
option of the Company, an Opinion of Counsel reasonably satisfactory
to the Company to the effect that such transfer is in compliance with
the Securities Act; or
(E) if such Certificated Note is being transferred in
reliance on Rule 144 under the Securities Act, delivery of a
certification to that effect substantially in the form of EXHIBIT C
hereto and, at the option of the Company, an Opinion of Counsel
reasonably satisfactory to the Company to the effect that such
transfer is in compliance with the Securities Act; or
(F) if such Certificated Note is being transferred in
reliance on another exemption from the registration requirements of
the Securities Act, a certification to that effect (substantially in
the form of EXHIBIT C hereto) and, at the option of the Company, an
Opinion of Counsel reasonably satisfactory to the Company to the
effect that such transfer is in compliance with the Securities Act.
(b) RESTRICTIONS ON TRANSFER OF A CERTIFICATED NOTE FOR A
BENEFICIAL INTEREST IN A GLOBAL NOTE. A Certificated Note may not be exchanged
for a beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar or co-Registrar of
a Certificated Note, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Registrar or co-Registrar, together with:
(A) in the case of Certificated Notes, the offer and sale of
which have not been registered under the Securities Act and which are
presented for transfer prior to the Resale Restriction Termination Date,
certification, substantially in the form of EXHIBIT C hereto, that such
Certificated Note is being transferred (I) to a Qualified Institutional
Buyer, (II) and Institutional Accredited Investor (and, in the case of this
clause (II), the Company shall have received a transferee letter of
representation substantially in the form of EXHIBIT A hereto and, at the
option of the Company, an Opinion of Counsel reasonably satisfactory to the
Company to the effect that such transaction is in compliance with the
Securities Act) or (III) in an offshore transaction in reliance on
Regulation S (and, in the case of this
35
clause III, the Company shall have received a transferor certificate for
Regulation S transfers substantially in the form of EXHIBIT E hereto
and, at the option of the Company, an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such transaction is in
comnpliance with the Securities Act); and
(B) written instructions from the Holder thereof directing the
Registrar or co-Registrar to make, or to direct the Depository to make, an
endorsement on the applicable Global Note to reflect an increase in the
aggregate amount of the Notes represented by the Global Note,
then the Registrar or co-Registrar shall cancel such Certificated Note and
cause, or direct the Depository to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar or
co-Registrar, the principal amount of Notes represented by the applicable Global
Note to be increased accordingly. If no Global Note representing Notes held by
Qualified Institutional Buyers or Persons acquiring Notes in offshore
transactions in reliance on Regulation S, as the case may be, is then
outstanding, the Company shall issue and the Trustee shall, upon receipt of an
authentication order in the form of an Officers' Certificate in accordance with
Section 2.02, authenticate such a Global Note in the appropriate principal
amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depository
therefor. Upon receipt by the Registrar or co-Registrar of written
instructions, or such other instruction as is customary for the Depository, from
the Depository or its nominee, requesting the registration of transfer of an
interest in a U.S. Global Note or Regulation S Global Note, as the case may be,
to another type of Global Note, together with the applicable Global Notes (or,
if the applicable type of Global Note required to represent the interest as
requested to be transferred is not then outstanding, only the Global Note
representing the interest being transferred), the Registrar or Co-Registrar
shall cancel such Global Notes (or Global Note) and the Company shall issue and
the Trustee shall, upon receipt of an authentication order in the form of an
Officers' Certificate in accordance with Section 2.02, authenticate new Global
Notes of the types so cancelled (or the type so cancelled and applicable type
required to represent the interest as requested to be transferred) reflecting
the applicable increase and decrease of the principal amount of Notes
represented by such types of Global Notes, giving effect to such transfer. If
the applicable type of Global Note required to represent the interest as
requested to be transferred is not outstanding at the time of such request, the
Company shall issue and the Trustee shall, upon written instructions from the
Company in accordance with Section 2.02, authenticate a new Global Note of such
type in principal amount equal to the principal amount of the interest requested
to be transferred.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL NOTE FOR A
CERTIFICATED NOTE. (i) Any Person having a beneficial interest in a Global Note
may upon request exchange such beneficial interest for a Certificated Note.
Upon receipt by the Registrar or co-Registrar of written instructions, or such
other form of instructions as is customary for the Depository, from the
Depository or its nominee on behalf of any Person having a beneficial interest
in a Global Note and upon receipt by the Trustee of a written order or such
other form of instructions as is customary for the Depository or the Person
designated by the Depository as having such a beneficial interest containing
registration instructions and, in the case of any such transfer or exchange of a
beneficial interest in Notes the offer and sale of which have not been
registered under the Securities Act and which Notes are presented for transfer
or exchange prior to the Resale Restriction Termination Date, the following
additional information and documents:
36
(A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial owner, a
certification from such Person to that effect (substantially in the form of
EXHIBIT C hereto); or
(B) if such beneficial interest is being transferred to a
Qualified Institutional Buyer in accordance with Rule l44A, a certification
to that effect (substantially in the form of EXHIBIT C hereto); or
(C) if such beneficial interest is being transferred in reliance
on Regulation S, delivery of a certification to that effect (substantially
in the form of EXHIBIT C hereto) and a transferor certificate for
Regulation S transfers substantially in the form of EXHIBIT E hereto; or
(D) if such beneficial interest is being transferred to an
Institutional Accredited Investor, delivery of certification (substantially
in the form of EXHIBIT C hereto), a certificate of the transferee in
substantially the form of EXHIBIT D and, at the option of the Company, an
Opinion of Counsel reasonably satisfactory to the Company to the effect
that such transfer is in compliance with the Securities Act; or
(E) if such beneficial interest is being transferred in reliance
on Rule 144 under the Securities Act, delivery of a certification to that
effect (substantially in the form of EXHIBIT C hereto); or
(F) if such beneficial interest is being transferred in reliance
on another exemption from the registration requirements of the Securities
Act, a certification to that effect (substantially in the form of EXHIBIT C
hereto) and, at the option of the Company, an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such transfer is in
compliance with the Securities Act,
then the Registrar or co-Registrar will cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar or
co-Registrar, the aggregate principal amount of the applicable Global Note to be
reduced and, following such reduction, the Company will execute and, upon
receipt of an authentication order in the form of an Officers' Certificate in
accordance with Section 2.02, the Trustee will authenticate and deliver to the
transferee a Certificated Note in the appropriate principal amount.
(ii) Certificated Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.16(d) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Registrar or co-Registrar in writing. The
Registrar or co-Registrar shall deliver such Certificated Notes to the
Persons in whose names such Certificated Notes are so registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(f) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar or
co-Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar or co-Registrar shall deliver only Notes that
bear the Private Placement Legend unless, and the Trustee is hereby authorized
to deliver Notes without the Private Placement Legend if, (i) the Resale
37
Restriction Termination Date shall have occurred, (ii) there is delivered to the
Trustee an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act or (iii) such Note has been sold pursuant to an effective
registration statement under the Securities Act.
(g) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Agent Members or
beneficial owners of interest in any Global Note) other than to require delivery
of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
(b) Section 2.17. RESTRICTIVE LEGENDS.
Each Global Note and Certificated Note that constitutes a Restricted
Security shall bear the following legend (the "PRIVATE PLACEMENT LEGEND") on the
face thereof until June 16, 2001, unless otherwise agreed to by the Company and
the Holder thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) AGREES THAT IT WILL NOT, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUANCE OF THIS NOTE AND THE LAST DATE ON WHICH THE COMPANY,
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH 501(a)(1), (2), (3), or (7)
UNDER THE SECURITIES ACT THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (E) PUSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
38
REQUIREMENTS OF THE SECURITIES ACT, OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (2) WILL GIVE TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE PRIOR
TO THE RESALE RESTRICTION TERMINATION DATE, IF THE PROPOSED TRANSFER IS
BEING MADE PURSUANT TO CLAUSE (C) OR (E) ABOVE, PRIOR TO SUCH TRANSFER, THE
HOLDER WILL BE REQUIRED TO FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT.
Each Global Note shall also bear the following legend:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS
NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, AND TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
ARTICLE 3
REDEMPTION
Section 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to paragraph 7 of the
Notes, at least 60 days prior to the Redemption Date or during such other period
as the Trustee may agree to, the Company shall notify the Trustee in writing of
the Redemption Date, the principal amount of Notes to be redeemed and the
Redemption Price, and deliver to the Trustee an Officers' Certificate stating
that such redemption will comply with the conditions contained herein and in the
Notes, as appropriate.
39
Section 3.02. SELECTION OF NOTES TO BE REDEEMED.
In the event that less than all of the Notes are to be redeemed at any
time, selection of the Notes to be redeemed shall be made by the Trustee in
compliance with the requirements of the principal securities exchange, if any,
on which such Notes are listed or, if such Notes are not then listed on a
national securities exchange, on a PRO RATA basis, by lot or by such method as
the Trustee shall deem fair and appropriate; PROVIDED, HOWEVER, that no Notes of
a principal amount of $1,000 or less shall be redeemed in part; PROVIDED,
FURTHER, that if a partial redemption is made with the proceeds of any Equity
Offering, selection of the Notes or portions thereof for redemption shall be
made by the Trustee only on a PRO RATA basis or on as nearly a PRO RATA basis as
is practicable (subject to the procedures of the Depository), unless such method
is otherwise prohibited. A new Note in a principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
delivery of the original Note to the Paying Agent and cancellation of the
original Note. On and after the Redemption Date, interest will cease to accrue
on Notes or portions thereof called for redemption as long as the Company has
deposited with the Paying Agents in U.S. legal tender in satisfaction of the
applicable Redemption Price pursuant to this Indenture.
Section 3.03. NOTICE OF REDEMPTION.
Notice of redemption shall be mailed by first class mail at least 30
but not more than 60 calendar days before the Redemption Date to each Holder of
Notes to be redeemed at its registered address. If any Note is to be redeemed
in part only, the notice of redemption that relates to such Note shall state the
portion of the principal amount thereof to be redeemed.
The notice shall identify the Notes to be redeemed (including the
CUSIP number(s) thereof) and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) that, if any Note is being redeemed in part, the portion of the
principal amount (equal to $1,000 in principal amount or any integral
multiple thereof) of such Note to be redeemed and that, on and after the
Redemption Date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof will be issued;
(4) the name, address and telephone number of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent at the address specified to collect the Redemption Price plus
accrued interest, if any;
(6) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders is to
receive payment of the Redemption Price plus accrued interest to the
Redemption Date upon surrender of the Notes to the Paying Agent;
(7) the subparagraph of the Notes pursuant to which the Notes called
for redemption are being redeemed; and
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(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be redeemed,
as well as the aggregate principal amount of Notes to be redeemed and the
aggregate principal amount of Notes to be outstanding after such partial
redemption.
Section 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once the notice of redemption described in Section 3.03 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price, including any premium, plus accrued interest to the
Redemption Date, if any. Upon surrender to the Paying Agent, such Notes shall
be paid at the Redemption Price, including any premium, plus accrued interest to
the Redemption Date, if any; PROVIDED that if the Redemption Date is after a
Record Date and on or prior to the Interest Payment Date, the accrued interest
shall be payable to the Holder of the redeemed Notes registered on the relevant
Record Date.
Section 3.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m., New York City time, on each Redemption
Date, the Company shall have deposited with the Paying Agent in immediately
available funds U.S. legal tender sufficient to pay the Redemption Price of and
accrued interest on all Notes to be redeemed on that date.
On and after any Redemption Date, if U.S. legal tender sufficient to
pay the Redemption Price of and accrued interest on Notes called for redemption
shall have been made available in accordance with the preceding paragraph, the
Notes called for redemption will cease to accrue interest and the only right of
the Holders of such Notes will be to receive payment of the Redemption Price of
and, subject to the first proviso in Section 3.04, accrued and unpaid interest
on such Notes to the Redemption Date. If any Note called for redemption shall
not be so paid, interest will continue to accrue and be paid, from the
Redemption Date until such redemption payment is made, on the unpaid principal
of the Note and any interest not paid on such unpaid principal, in each case, at
the rate and in the manner provided for in Section 2.12.
Section 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate, at the expense of the Company, for a Holder a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
ARTICLE 4
COVENANTS
Section 4.01. PAYMENT OF NOTES.
The Company shall pay the principal of and interest (including all
Additional Interest as provided in the Registration Rights Agreement) on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds, for the benefit of the Holders, on
that date U.S. legal tender designated for and sufficient to pay such
installment in full and is not prohibited from paying such money to the Holders
pursuant to the terms of this Indenture.
41
The Company shall pay interest on overdue principal and interest on
overdue interest, to the extent lawful as provided for in Section 2.12.
Section 4.02. PROVISION OF FINANCIAL STATEMENTS AND OTHER INFORMATION.
(a) The Company will file with the Commission all information,
documents and reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act and will provide the Trustee and the
Noteholders with copies of all such information, documents and reports within 15
days of filing thereof with the Commission; PROVIDED that if the Company is not
required to file such information, documents or reports with the Commission, it
will nonetheless continue to furnish such information, documents and reports
required to be filed by a company subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act to the Trustee and the Noteholders
within 15 days of the date on which filing with the Commission would have been
otherwise required. The Company shall also comply with the provisions of TIA
Section 314(a). Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(b) The Company will, upon request, provide to any Holder or any
prospective transferee of any such Holder any information concerning the Company
(including financial statements) necessary in order to permit such Holder to
sell or transfer Notes in compliance with Rule 144 and Rule 144A under the
Securities Act.
Section 4.03. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead (as a defense or otherwise) or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Company from paying all or any portion of the principal of, premium, if any,
and/or interest on the Notes as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that they may lawfully do so)
the Company 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 4.04. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT; TAX INFORMATION.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of the Company's fiscal year an Officers' Certificate (one of the
signers of which shall be the principal executive officer, principal financial
officer or principal accounting officer of each of the Company) stating that a
review of the activities of the Company and its Subsidiaries during such fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and, in the case of Restricted Payments, listing all Restricted
Payments for such year, and is not in default in the performance or observance
of any of the terms, provisions and conditions hereof (or, if a Default or Event
of Default shall have occurred, describing all or such Defaults or Events of
Default of which he or she may have knowledge and what action each is taking or
proposes to take with respect thereto)
42
and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal
of or interest, if any, on the Notes are prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto. The Officers' Certificate shall also
notify the Trustee should the Company elect to change the manner in which it
fixes its fiscal year end.
(b) [Intentionally Omitted]
(c) The annual financial statements delivered pursuant to
Section 4.02 shall be accompanied by a written report addressed to the Trustee
of the Company's independent accountants (who shall be a firm of established
national reputation) that in conducting their audit of such financial statements
nothing has come to their attention that would lead them to believe that a
Default or Event of Default has occurred under this Indenture insofar as they
relate to accounting matters or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(d) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed default under this indenture of the Notes, the Company
shall deliver to the Trustee, at its address set forth in Section 13.02 hereof,
by registered or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such Default or Event of Default, notice or other action, the status
thereof and what action the Company is taking or proposes to take within five
Business Days of its becoming aware of such occurrence.
(e) The Company shall calculate and deliver to the Trustee all
original issue discount information to be reported by the Trustee to Holders as
required by applicable law.
Section 4.05. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all lawful claims for
labor, materials and supplies that, if unpaid, might by law become a Lien upon
the property of it or any of its Subsidiaries; PROVIDED, HOWEVER, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted for which adequate reserves, to the extent
required under GAAP, have been taken.
Section 4.06. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or limited liability company
or other existence of each Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
Subsidiary and the material rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries except where the failure to
preserve and keep in full force and effect any such rights, licenses and
franchise shall not have a material adverse effect on the financial condition,
business, operations or prospects of the Company and its Subsidiaries taken as a
whole; and
43
PROVIDED that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, limited liability company,
partnership or other existence of any of Subsidiaries, if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in
any material respect to the Holders.
Section 4.07. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York where Notes 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 Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee as set forth in Section 13.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. The
Company shall give prompt written notice to the Trustee of such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates the Corporate Trust Office of
the Trustee set forth in Section 13.02 as such office of the Company.
Section 4.08. COMPLIANCE WITH LAWS.
The Company shall comply, and shall cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as would not in the aggregate have a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries taken as a whole.
Section 4.09. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) The Company shall cause all material properties owned by or
leased by it or any of its Subsidiaries used or useful to the conduct of the
Company's business or the business of any of its Subsidiaries to be maintained
and kept in normal condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in its judgment may
be necessary, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section 4.09 shall prevent the Company or any of its
Subsidiaries from discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Board of Directors of the Company or of the Board of
Directors of any Subsidiary of the Company concerned, or of an officer (or other
agent employed by the Company or of any of its Subsidiaries) of the Company or
any of its Subsidiaries having managerial responsibility for any such property,
desirable in the conduct of the business of the Company
44
or any Subsidiary of the Company, and if such discontinuance or disposal is
not adverse in any material respect to the Holders.
(b) The Company shall maintain, and shall cause its respective
Subsidiaries to maintain, insurance with responsible carriers against such risks
and in such amounts, and with such deductibles, retentions, self-insured amounts
and co-insurance provisions, as are customarily carried by similar businesses of
similar size, including property and casualty loss, workers' compensation and
interruption of business insurance.
Section 4.10. LIMITATION ON ADDITIONAL INDEBTEDNESS.
(A) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, incur (as defined) any
Indebtedness (including Acquired Indebtedness); PROVIDED that the Company or any
of the Guarantors may incur Indebtedness (including Acquired Indebtedness) if
after giving effect to the incurrence of such Indebtedness and the receipt and
application of the proceeds thereof, the Company's Consolidated Fixed Charge
Coverage Ratio is at least 2.0 to 1.
(B) Notwithstanding the foregoing clause (A), the Company and its
Restricted Subsidiaries may incur Permitted Indebtedness; PROVIDED that the
Company will not incur any Permitted Indebtedness that ranks junior in right of
payment to the Notes that has a maturity or mandatory sinking fund payment prior
to the maturity of the Notes. Notwithstanding any other provision of this
Section 4.10, (i) the maximum amount of Indebtedness that the Company or a
Restricted Subsidiary may incur pursuant to this covenant shall not be deemed to
be exceeded, with respect to any outstanding Indebtedness, due solely to the
result of fluctuations in the exchange rates of currencies and (ii) in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness or is otherwise entitled to be incurred
pursuant to this Section 4.10, the Company may, in its sole discretion, classify
(or reclassify) such item of Indebtedness in any manner that complies with this
Section 4.10 and such items of Indebtedness will be treated as having been
incurred pursuant to only one of such clauses or pursuant to the first paragraph
hereof. Accrual of interest or accretion of accreted value will not be deemed to
be an incurrence of Indebtedness for purposes of this Section 4.10. Accruals of
dividends or the payment of dividends through the issuance of additional shares
of the same class of Capital Stock in accordance with the provisions thereof
permitting such pay-in-kind dividends will not be deemed an issuance of Capital
Stock for purposes of this Section 4.10.
Section 4.11. LIMITATION ON RESTRICTED PAYMENTS.
(A) The Company will not make, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, make, any Restricted
Payment, unless:
(1) no Default or Event of Default shall have occurred and
be continuing at the time of or immediately after giving effect to
such Restricted Payment;
(2) immediately after giving PRO FORMA effect to such
Restricted Payment, the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.10 of
this Indenture; and
(3) immediately after giving effect to such Restricted
Payment, the aggregate of all Restricted Payments declared or made
after the Issue Date does not exceed the sum of
45
(a) 50% of the Company's Cumulative Consolidated Net
Income (or minus 100% of any cumulative deficit in Consolidated Net
Income),
(b) 100% of the aggregate Net Proceeds received by the
Company from the issue or sale after the Issue Date of Capital Stock
(other than any Disqualified Capital Stock, Designated Preferred
Stock, or Capital Stock of the Company issued to any Subsidiary of the
Company) of the Company or any Indebtedness or other securities of the
Company convertible into or exercisable or exchangeable for Capital
Stock (other than Disqualified Capital Stock or Designated Preferred
Stock) of the Company which have been so converted, exercised or
exchanged, as the case may be,
(c) without duplication of any amounts included in
clause (3)(b) above, 100% of the aggregate Net Proceeds received by
the Company from any equity contribution from a holder of the
Company's Capital Stock, excluding, in the case of clauses (3)(b) and
(c), any Net Proceeds from a Equity Offering to the extent used to
redeem the Notes, and
(d) without duplication, the sum of
(i) the aggregate amount returned in cash on
or with respect to Investments (other than Permitted
Investments) made subsequent to the Issue Date whether
through interest payments, principal payments,
dividends or other distributions;
(ii) the net proceeds received by the Company
or any of its Restricted Subsidiaries from the
disposition, retirement or redemption of all or any
portion of such Investments (other than to a Subsidiary
of the Company); and
(iii) upon redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, the fair market
value of the net assets of such Subsidiary,
PROVIDED, HOWEVER, that the sum of clauses (i), (ii) and (iii) above shall not
exceed the aggregate amount of all such Investments made subsequent to the Issue
Date.
For purposes of determining under clause (3) above, the amount
expended for Restricted Payments, cash distributed shall be valued at the face
amount thereof and property other than cash shall be valued at its fair market
value.
(B) The provisions of this Section 4.11 shall not prohibit
(1) the payment of any distribution within 60 days after
the date of declaration thereof, if at such date of declaration such
payment would comply with the provisions of this Indenture,
(2) the repurchase, redemption or other acquisition or
retirement of any shares of Capital Stock of the Company or
Indebtedness subordinated to the Notes by conversion into, or by or in
exchange for, shares of Capital Stock of the Company (other than
Disqualified
46
Capital Stock), or out of the Net Proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of
other shares of Capital Stock of the Company (other than
Disqualified Capital Stock),
(3) the redemption or retirement of Indebtedness of the
Company subordinated to the Notes in exchange for, by conversion into,
or out of the Net Proceeds of a substantially concurrent sale or
incurrence of, Indebtedness of the Company (other than any
Indebtedness owed to a Subsidiary) that is Refinancing Indebtedness,
(4) the retirement of any shares of Disqualified Capital
Stock of the Company by conversion into, or by exchange for, shares of
Disqualified Capital Stock of the Company, or out of the Net Proceeds
of the substantially concurrent sale (other than to a Subsidiary of
the Company) of other shares of Disqualified Capital Stock of the
Company,
(5) the declaration and payment of regularly accruing
dividends to holders of any class or series of Disqualified Capital
Stock of the Company or its Restricted Subsidiaries issued after the
Issue Date in accordance with Section 4.10 of this Indenture,
(6) the declaration and payment of regularly accruing
dividends to holders of any class or series of Designated Preferred
Stock of the Company issued after the Issue Date; PROVIDED that at the
time of such issuance, and after giving effect to such issuance on a
PRO FORMA basis (for purposes of making determinations on a PRO FORMA
basis pursuant to this clause (6), treating all dividends which will
accrue on such Designated Preferred Stock during the four full fiscal
quarters immediately following such issuance, as well as all other
Designated Preferred Stock then outstanding, as if same will in fact
be, or have in fact been, paid in cash), the Company would have been
able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.10 of this Indenture,
(7) Restricted Payments in aggregate amount not to exceed
$25 million,
(8) payments made under any Permitted Tax Sharing
Agreement,
(9) payments made to effect the Transactions on the Issue
Date, and
(10) repurchases by the Company of Capital Stock (other than
Disqualified Capital Stock) (or options therefor) of the Company from
directors, officers or employees of the Company or any of its
Restricted Subsidiaries or their authorized representatives upon the
death, disability or termination of employment of such officers or
employees, in an aggregate amount not to exceed, in any calendar year,
$2,000,000; PROVIDED that unused amounts in any calendar year
(beginning with calendar year 1999) may be carried forward and used to
make repurchases as described above in this clause (10) in any
succeeding calendar year, PROVIDED FURTHER that the aggregate amount
expended pursuant to this clause (10) in any calendar year (both
pursuant to the immediately preceding proviso and the portion of this
clause (10) which precedes said proviso) does not exceed $4,000,000 in
any calendar year.
In calculating the aggregate amount of Restricted Payments made
subsequent to the Issue Date for purposes of clause (3) of the first
paragraph above, amounts expended pursuant to clause (1) of the immediately
preceding paragraph shall be included in such calculation.
47
(C) For purposes of determining compliance with this Section 4.11, in
the event that a Restricted Payment meets the criteria of more than one of the
types of Restricted Payments described in the above clauses, the Company, in its
sole discretion, may order and classify, and from time to time may reclassify,
such Restricted Payment if it would have been permitted at the time such
Restricted Payment was made and at the time of such reclassification.
Section 4.12. LIMITATION ON OTHER SENIOR SUBORDINATED INDEBTEDNESS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur, contingently or otherwise, any
Indebtedness (other than the Notes and the Guarantees, as the case may be) that
is both (i) subordinated in right of payment to any Senior Indebtedness of the
Company or any of its Restricted Subsidiaries, as the case may be, and
(ii) senior in right of payment to the Notes and the Guarantees, as the case may
be. For purposes of this Section 4.12, Indebtedness is deemed to be senior in
right of payment to the Notes or the Guarantees, as the case may be, if it is
not explicitly subordinated in right of payment to Senior Indebtedness at least
to the same extent as the Notes and the Guarantees, as the case may be, are
subordinated to such Senior Indebtedness.
Section 4.13. LIMITATION ON CERTAIN ASSET SALES.
(A) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless
(1) the Company or such Restricted Subsidiary, as the case
may be, receives consideration at the time of such sale or other
disposition at least equal to the fair market value of the assets sold
or otherwise disposed of (as determined in good faith by the Board of
Directors of the Company, and evidenced by a Board Resolution);
(2) not less than 75% of the consideration received by the
Company or such Restricted Subsidiary, as the case may be, is in the
form of cash or Cash Equivalents other than in the case where the
Company or such Restricted Subsidiary is undertaking a Permitted Asset
Swap; PROVIDED that this clause (2) shall not apply to any Asset Sale
(or series of related Asset Sales), involving assets that accounted
for less than one percent of the Company's EBITDA during the period of
the most recent four consecutive full fiscal quarters ending prior to
the date of such Asset Sale for which consolidated financial
statements of the Company are available; and PROVIDED, FURTHER, that
the amount of
(a) any liabilities (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet), of the Company or
any of its Restricted Subsidiaries (other than contingent liabilities
and liabilities that are by their terms subordinated to the Notes)
that are assumed by the transferee of any such assets shall be deemed
to be cash for purposes of this clause (2); and
(b) any promissory notes and other non-cash
consideration received by the Company or any Restricted Subsidiary of
the Company from such Asset Sale that are converted by the Company or
such Restricted Subsidiary into cash within 180 days of the applicable
Asset Sale shall be deemed to be cash for purposes of this clause (2).
48
(3) the Asset Sale Proceeds received by the Company or
such Restricted Subsidiary are applied:
(a) to the extent the Company or any such
Restricted Subsidiary, as the case may be, elects, or is
required, to prepay, repay or purchase Indebtedness under any
then existing Senior Indebtedness of the Company or any such
Restricted Subsidiary within 365 days following the receipt
of the Asset Sale Proceeds from any Asset Sale; provided that
any such repayment shall result in a permanent reduction of
the commitments thereunder in an amount equal to the
principal amount so repaid;
(b) to the extent the Company elects, to an
investment in assets (including Capital Stock or other
securities purchased in connection with the acquisition of
Capital Stock or property of another Person) used or useful
in a Permitted Business; provided that such investment occurs
or the Company or any such Restricted Subsidiary enters into
contractual commitments to make such investment, subject only
to customary conditions, within 365 days following receipt of
such Asset Sale Proceeds (provided that such investment shall
in any event be consummated no later than 90 days following
such 365th day); and
(c) if on such 365th day in the case of clauses
(3)(a) and (3)(b) (or on such 90th day in the case of the
proviso to clause (3)(b)) with respect to any Asset Sale, the
Available Asset Sale Proceeds exceed $10 million, the Company
shall apply an amount equal to the Available Asset Sale
Proceeds to an offer to repurchase the Notes, at a purchase
price in cash equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the purchase
date (an "EXCESS PROCEEDS OFFER").
Notwithstanding the foregoing, in the event that a Restricted
Subsidiary that is not a Wholly Owned Restricted Subsidiary dividends or
distributes to all of its stockholders on a PRO RATA basis any proceeds of an
Asset Sale to the Company or another Restricted Subsidiary, the Company or such
Restricted Subsidiary need only apply its share of such proceeds in accordance
with the preceding clauses (a), (b) and (c).
If an Excess Proceeds Offer is not fully subscribed, the Company may
retain the portion of the Available Asset Sale Proceeds not required to
repurchase Notes.
(B) If the Company is required to make an Excess Proceeds Offer,
the Company shall mail, within 30 days following the date specified in
clause (3)(c) above, a notice to the holders. Such notice shall be sent by
first-class mail, postage prepaid, to the Trustee and to each Noteholder, at the
address appearing in the register maintained by the Registrar of the Notes, and
shall state:
(1) that the Excess Proceeds Offer is being made pursuant to this
Section 4.13;
(2) that such Holders have the right to require the Company to
apply the Available Asset Sale Proceeds to repurchase such Notes at a
purchase price in cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to the purchase date which shall be no
earlier than 30 days and not later than 60 days from the date such notice
is mailed (the "EXCESS PROCEEDS PAYMENT DATE");
(3) that any Note not tendered or accepted for payment will
continue to accrue interest;
49
(4) that any Notes accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrue interest after the Excess Proceeds
Payment Date;
(5) that Holders accepting the offer to have their Notes
purchased pursuant to an Excess Proceeds Offer will be required to
surrender the Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the
Business Day preceding the Excess Proceeds Payment Date;
(6) that Holders will be entitled to withdraw their acceptance of
the Excess Proceeds Offer if the Paying Agent receives, not later than the
close of business on the third Business Day preceding the Excess Proceeds
Payment Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Notes delivered
for purchase, and a statement that such Xxxxxx is withdrawing his election
to have such Notes purchased;
(7) that if the aggregate principal amount of Notes surrendered
by Holders exceeds the amount of Excess Proceeds, Company shall select the
Notes to be purchased on a PRO RATA basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of
$1,000 or integral multiples thereof, shall be purchased);
(8) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, PROVIDED that each Note purchased and
each such new Note issued shall be in an original principal amount in
denominations of $1,000 and integral multiples thereof;
(9) the calculations used in determining the amount of Available
Asset Sale Proceeds to be applied to the purchase of such Notes;
(10) any other procedures that a Holder must follow to accept an
Excess Proceeds Offer or effect withdrawal of such acceptance; and
(11) the name and address of the Paying Agent.
On the Excess Proceeds Payment Date, the Company shall, to the extent
lawful, (1) accept for payment, on a PRO RATA basis to the extent necessary,
Notes or portions thereof tendered pursuant to the Excess Proceeds Offer,
(2) deposit with the Paying Agent U.S. legal tender sufficient to pay the
purchase price plus accrued and unpaid interest, if any, on the Notes to be
purchased or portions thereof, (3) deliver or cause to be delivered to the
Trustee Notes so accepted together with an Officers' Certificate stating that
such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 4.13. The Paying Agent shall promptly
mail to each Holder so accepted payment in an amount equal to the purchase price
for such Notes, and the Company shall execute and issue, and the Trustee shall
promptly authenticate and make available for delivery to such Holder, a new Note
equal in principal amount to any unpurchased portion of the Notes surrendered;
PROVIDED that each such new Note shall be issued in an original principal amount
in denominations of $1,000 and integral multiples thereof. The Company will
publicly announce the results of the Excess Proceeds Offer on the Excess
Proceeds Payment Date.
(C) In the event of the transfer of substantially all of the
property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Section 5.01 of
50
this Indenture, the successor Person shall be deemed to have sold the
properties and assets of the Company and its Restricted Subsidiaries not so
transferred for purposes of this Section 4.13, and shall comply with the
provisions of this Section 4.13 with respect to such deemed sale as if it
were an Asset Sale.
(D) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and other securities laws and regulations thereunder to
the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Excess Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this
Section 4.13, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.13 by virtue thereof.
Section 4.14. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(A) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate (each an "AFFILIATE TRANSACTION") or extend, renew,
waive or otherwise modify the terms of any Affiliate Transaction entered into
prior to the Issue Date unless
(1) such Affiliate Transaction is between or among the
Company and its Restricted Subsidiaries; or
(2) the terms of such Affiliate Transaction are fair and
reasonable to the Company or such Restricted Subsidiary, as the case
may be, and the terms of such Affiliate Transaction are at least as
favorable as the terms which could be obtained by the Company or such
Restricted Subsidiary, as the case may be, in a comparable transaction
made on an arm's-length basis between unaffiliated parties.
In any Affiliate Transaction (or any series of related Affiliate
Transactions which are similar or part of a common plan) involving an amount or
having a fair market value in excess of $5,000,000 which is not permitted under
clause (1) above, the Company must obtain a resolution of the Board of Directors
of the Company certifying that such Affiliate Transaction complies with
clause (2) above. In any Affiliate Transaction (or any series of related
Affiliate Transactions which are similar or part of a common plan) involving an
amount or having a fair market value in excess of $10,000,000 which is not
permitted under clause (1) above, the Company must obtain a favorable written
opinion as to the fairness of such transaction or transactions, as the case may
be, from an Independent Financial Advisor.
(B) The foregoing provisions will not apply to
(1) any Restricted Payment that is not prohibited by the
provisions described under Section 4.11 of this Indenture or any
Permitted Investment,
(2) reasonable fees and compensation paid to, and indemnity
provided on behalf of, officers, directors or employees of the Company
or any Restricted Subsidiary of the Company as determined in good
faith by the Company's Board of Directors or senior management,
(3) any agreement as in effect as of the Issue Date
(including, without limitation, any agreement entered into on the
Issue Date in connection with the Transactions) or any
51
amendment thereto or any transaction contemplated thereby
(including pursuant to any amendment thereto) in any replacement
agreement thereto so long as any such amendment 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,
(4) transactions with a Receivables Subsidiary in
connection with Permitted Receivables Financing,
(5) any transaction between the Company and any of its
Affiliates involving ordinary course of business investment banking,
commercial banking, financial advisory services and related
activities,
(6) the payment of management fees to any Affiliate of the
Company not to exceed in the aggregate to all Affiliates, in any
calendar year, $1,000,000,
(7) customer financing and financing services transactions
between the Company or any of its Restricted Subsidiaries on the one
hand and MCII Financial Services on the other hand occurring in the
ordinary course of business, PROVIDED that the terms of each such
transaction are at least as favorable as the terms which could be
obtained by the Company or such Restricted Subsidiary in a comparable
transaction made on an arm's-length basis between unaffiliated
parties,
(8) issuances of Capital Stock of the Company (other than
Disqualified Capital Stock), to the extent otherwise permitted under
this Indenture,
(9) the existence of, or the performance by the Company or
any of its Restricted Subsidiaries of its obligations under the terms
of, any stockholders agreement (including any registration rights
agreement or purchase agreement related thereto) to which it is a
party as of the Issue Date and any similar agreements which it may
enter into thereafter, in each case subject to compliance with the
other provisions of this Indenture; PROVIDED, HOWEVER, that the
existence, or the performance by the Company or any of its Restricted
Subsidiaries of obligations under any future amendment to any such
existing agreement or under any similar agreement entered into after
the Issue Date shall only be permitted by this clause (9) to the
extent that the terms (taken as a whole) of any such amendment or new
agreement are not otherwise disadvantageous to the holders of the
Notes in any material respect, and
(10) payments made under any Permitted Tax Sharing
Agreement.
Section 4.15. LIMITATIONS ON LIENS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur or otherwise cause or suffer to exist or become
effective any Liens of any kind securing Indebtedness other than Senior
Indebtedness upon any property or asset of the Company or any of its Restricted
Subsidiaries or any shares of Capital Stock or Indebtedness of any Restricted
Subsidiary of the Company which owns property or assets, now owned or hereafter
acquired, unless:
52
(1) if such Lien secures Indebtedness which is subordinated
to the Notes, any such Lien shall be subordinated to the Lien granted
to the holders of the Notes to the same extent as such Indebtedness is
subordinated to the Notes; and
(2) in all other cases, the Notes are equally and ratably
secured.
Section 4.16. LIMITATIONS ON INVESTMENTS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any Investment other than
(1) a Permitted Investment, or
(2) an Investment that is made after the Issue Date as a
Restricted Payment in compliance with Section 4.11.
Section 4.17. CHANGE OF CONTROL.
(A) Upon the occurrence of a Change of Control, the Company shall
be obligated to make an offer to purchase (the "CHANGE OF CONTROL OFFER") each
Holder's outstanding Notes at a purchase price (the "Change of Control Purchase
Price") equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Change of Control Payment Date in accordance with the
procedures set forth below.
(B) Within 30 days of the occurrence of a Change of Control, the
Company shall send by first-class mail, postage prepaid, to the Trustee and to
each holder of the Notes, at the address appearing in the register maintained by
the Registrar of the Notes, a notice stating:
(1) that the Change of Control Offer is being made pursuant
to this Section 4.17 and that all Notes tendered will be accepted for
payment;
(2) the Change of Control Purchase Price and the purchase
date (which shall be a Business Day no earlier than 30 days nor later
than 60 days from the date such notice is mailed (the "CHANGE OF
CONTROL PAYMENT DATE"));
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(5) that Holders accepting the offer to have their Notes
purchased pursuant to a Change of Control Offer will be required to
surrender the Notes, with the form entitled "Option of the Holder to
Elect Purchase" on the reverse of the Note completed, to the Paying
Agent at the address specified in the notice prior to the close of
business on the Business Day preceding the Change of Control Payment
Date;
(6) that holders will be entitled to withdraw their
acceptance if the Paying Agent receives, not later than the close of
business on the third Business Day preceding the Change of
53
Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the holder, the principal amount
of the Notes delivered for purchase, and a statement that such
holder is withdrawing his election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered;
(8) any other procedures that a holder must follow to
accept a Change of Control Offer or effect withdrawal of such
acceptance; and
(9) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent U.S.
legal tender sufficient to pay the purchase price of all Notes or portions
thereof so tendered and (3) deliver or cause to be delivered to the Trustee
Notes so accepted together with an Officers' Certificate stating the Notes or
portions thereof tendered to the Company. The Paying Agent shall promptly mail
to each holder of Notes so accepted payment in an amount equal to the purchase
price for such Notes, and the Company shall execute and issue, and the Trustee
shall promptly authenticate and mail to such holder, a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered; PROVIDED
that each such new Note shall be issued in an original principal amount in
denominations of $1,000 and integral multiples thereof.
(C) If the Senior Credit Facility is in effect, or any amounts
are owing thereunder or in respect thereof, at the time of the occurrence of a
Change of Control, prior to the mailing of the notice to Holders described in
the second preceding paragraph, the Company covenants to
(1) repay in full all obligations and terminate all
commitments under or in respect of the Senior Credit Facility and all
other Senior Indebtedness the terms of which require repayment upon a
Change of Control or offer to repay in full all obligations and
terminate all commitments under or in respect of the Senior Credit
Facility and all such Senior Indebtedness and repay the Indebtedness
owed to each such lender who has accepted such offer or
(2) obtain the requisite consents under the Senior Credit
Facility and all such other Senior Indebtedness to permit the
repurchase of the Notes as described above.
The Company must first comply with the covenant described in the
preceding sentence before it shall be required to purchase Notes in the event of
a Change of Control; PROVIDED that, notwithstanding the foregoing, the Company's
failure to consummate a Change of Control Offer in accordance with the
provisions of this Section 4.17 due to the covenant described in the immediately
preceding sentence shall constitute an Event of Default described in clause (3)
under Section 6.01 if not cured within 30 days of the last date on which the
Company would have been required to consummate the Change of Control Offer
without giving effect to the convenant described in the immediately preceding
sentence.
(D) (1) If the Company or any Restricted Subsidiary thereof has
issued any outstanding (a) Indebtedness that is subordinated in right of payment
to the Notes or (b) Preferred Stock, and the Company or such Restricted
Subsidiary is required to make a change of control offer or to make a
distribution with respect to such subordinated indebtedness or Preferred Stock
in the event of a change of control, the Company shall not consummate any such
offer or distribution with respect to such subordinated indebtedness or
Preferred Stock
-54-
until such time as the Company shall have paid the Change of Control Purchase
Price in full to the holders of Notes that have accepted the Company's change
of control offer and shall otherwise have consummated the change of control
offer made to holders of the Notes and (2) the Company will not issue
Indebtedness that is subordinated in right of payment to the Notes or
Preferred Stock with change of control provisions requiring the payment of
such Indebtedness or Preferred Stock prior to the payment of the Notes
tendered pursuant to a Change of Control Offer in the event of a Change in
Control under this Indenture.
(E) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with this
Section 4.17, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.17 by virtue thereof.
Section 4.18. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary of the Company to
(1) pay dividends or make any other distributions to the
Company or any Restricted Subsidiary of the Company
(a) on its Capital Stock or
(b) with respect to any other interest or
participation in, or measured by, its profits or
(2) repay any Indebtedness or any other obligation owed to
the Company or any Restricted Subsidiary of the Company,
(3) make loans or advances or capital contributions to the
Company or any of its Restricted Subsidiaries or
(4) transfer any of its properties or assets to the Company
or any of its Restricted Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of
(1) encumbrances or restrictions existing on the Issue Date
to the extent and in the manner such encumbrances and restrictions are
in effect on the Issue Date,
(2) the Indenture, the Notes and the Guarantees,
(3) applicable law,
-55-
(4) contracts to which any Person who is acquired in
accordance with the terms of this Indenture is a party, including any
instrument governing Acquired Indebtedness, which encumbrance or
restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets
of the Person (including any Subsidiary of the Person), so acquired,
(5) customary non-assignment provisions in leases or other
agreements entered in the ordinary course of business and consistent
with past practices,
(6) Refinancing Indebtedness; PROVIDED that such
restrictions are no more restrictive than those contained in the
agreements governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded,
(7) customary restrictions in Capitalized Lease
Obligations, security agreements or mortgages securing Indebtedness of
the Company or a Restricted Subsidiary to the extent such restrictions
restrict the transfer of the property subject to such Capitalized
Lease Obligations, security agreements and mortgages,
(8) customary restrictions with respect to a Restricted
Subsidiary of the Company pursuant to an agreement that has been
entered into for the sale or disposition of any Capital Stock or
assets of such Restricted Subsidiary, but only to the extent such
encumberance or restriction applies only to the Capital Stock or
assets being sold or otherwise disposed of,
(9) contracts entered into in the ordinary course of
business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of property
or assets of the Company or any Restricted Subsidiary in any manner
material to the Company or any Restricted Subsidiary,
(10) restrictions on cash or other deposits or net worth
imposed by customers under contracts (not evidencing or relating to
Indebtedness) entered into the ordinary course of business,
(11) customary provisions in joint venture agreements and
other similar agreements (in each case relating solely to the
respective joint venture or similar entity or the equity interests
therein) entered into in the ordinary course of business,
(12) customary provisions restricting dispositions of real
property interests set forth in any reciprocal easement agreements of
the Company or any Restricted Subsidiary, or
(13) with respect to a Receivables Subsidiary, an agreement
relating to Indebtedness of such Receivables Subsidiary which is
permitted under Section 4.10 or pursuant to an agreement relating to a
Permitted Receivables Financing by such Receivables Subsidiary.
Section 4.19. LIMITATION ON CONDUCT OF BUSINESS.
The Company and its Restricted Subsidiaries will not engage in any
business other than a Permitted Business.
-56-
Section 4.20. LIMITATION ON PREFERRED STOCK OF RESTRICTED SUBSIDIARIES.
The Company will not permit any of its Restricted Subsidiaries to
issue any Preferred Stock (except Preferred Stock issued to the Company or a
Wholly Owned Restricted Subsidiary of the Company) or permit any Person (other
than the Company or a Wholly Owned Restricted Subsidiary of the Company) to hold
any such Preferred Stock unless such Restricted Subsidiary would be entitled to
incur or assume Indebtedness under Section 4.10 (other than Permitted
Indebtedness) in the aggregate principal amount equal to the aggregate
liquidation value as of the date of issuance thereof of the Preferred Stock to
be issued.
Section 4.21. LIMITATION ON CREATION OF SUBSIDIARIES.
The Company will not create or acquire, and will not permit any of its
Restricted Subsidiaries to create or acquire, any Subsidiary other than
(1) a Restricted Subsidiary existing as of the Issue Date,
(2) a Restricted Subsidiary that is acquired or created
after the Issue Date; PROVIDED, HOWEVER, that each Domestic Restricted
Subsidiary acquired or created pursuant to this clause (2) shall have
executed a guarantee, pursuant to which such Domestic Restricted
Subsidiary will become a Guarantor; PROVIDED, FURTHER, in the event
the Company or any of its Restricted Subsidiaries incurs Acquired
Indebtedness (assuming such incurrence is in accordance with
Section 4.10) as a result of the acquisition of a Restricted
Subsidiary and as long as the terms of such Acquired Indebtedness
prohibit the Guarantee of the Notes by such newly- acquired Restricted
Subsidiary or such newly-acquired Restricted Subsidiary would be in
breach or default of the terms of the Acquired Indebtedness as a
result of such Guarantee, such Restricted Subsidiary will not be
required to execute a Guarantee; PROVIDED that, until such Restricted
Subsidiary executes and delivers a Guarantee in accordance with this
Section 4.21, (a) none of the Company or any other Restricted
Subsidiary of the Company will transfer any assets (other than in the
ordinary course of business) to such newly-acquired Restricted
Subsidiary, (b) such newly-acquired Restricted Subsidiary will not
transfer such Acquired Indebtedness to the Company or any other
Restricted Subsidiary and (c) neither the Company nor any Restricted
Subsidiary of the Company shall provide any guarantee of, or similar
credit support for, or otherwise become directly or indirectly liable
for any Indebtedness of such newly-acquired Restricted Subsidiary, or
(3) an Unrestricted Subsidiary.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. LIMITATION ON CONSOLIDATION, MERGER AND SALE OF ASSETS.
The Company will not and will not permit any of its Restricted
Subsidiaries to consolidate with, merge with or into, or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of
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the assets of the Company and its Restricted Subsidiaries (as an entirety or
substantially as an entirety in one transaction or a series of related
transactions), to any Person unless:
(1) the Company or such Restricted Subsidiary, as the case
may be, shall be the continuing Person, or the Person (if other than
the Company or such Restricted Subsidiary) formed by such
consolidation or into which the Company or such Restricted Subsidiary,
as the case may be, is merged or to which the properties and assets of
the Company or such Restricted Subsidiary, as the case may be, are
sold, assigned, transferred, leased, conveyed or otherwise disposed of
shall be a corporation organized and existing under the laws of the
United States or any State thereof or the District of Columbia and
shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all of
the obligations of the Company or such Restricted Subsidiary, as the
case may be, under the Indenture, the Notes and the Guarantees, and
the obligations thereunder shall remain in full force and effect;
(2) immediately before and immediately after giving effect
to such transaction, no Default or Event of Default shall have
occurred and be continuing; and
(3) immediately after giving effect to such transaction on
a PRO FORMA basis the Company or such Person could incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness)
under Section 4.10; PROVIDED that (x) a Guarantor may merge into the
Company or another Person that is a Guarantor without complying with
this clause (3) and (y) the Company may merge with an Affiliate that
has no material assets or liabilities and that is incorporated or
organized for the purpose of reincorporating or reorganizing the
Company in another jurisdiction to realize tax benefits without
complying with this clause (3) PROVIDED, in the case of a transaction
pursuant to this subclause (y), immediately after giving effect to
such transaction on A PRO FORMA basis, the Consolidated Fixed Charge
Coverage Ratio of the surviving Person is not less than the
Consolidated Fixed Charge Coverage Ratio of the Company immediately
prior to such transaction.
In connection with any consolidation, merger or transfer of assets
contemplated by this provision, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate, each stating that such consolidation, merger
or transfer and the supplemental indenture in respect thereto comply with this
provision and that all conditions precedent herein provided for relating to such
transaction or transactions have been complied with.
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.
Section 5.02. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation, merger, conveyance or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.01
above, the successor entity formed by such consolidation or into which the
Company or any such Restricted Subsidiary is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company or such Restricted Subsidiary, as the case may be, under
this Indenture with the same effect as if such successor entity had been named
as the Company or such Restricted Subsidiary, as the case may be herein, and
thereafter the predecessor entity shall be relieved of all obligations and
covenants under this Indenture and the Notes.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if
(a) there is a default in the payment of any principal of, or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise, whether or not such
payment is prohibited by the provisions of Article 12 hereof;
(b) there is a default in the payment of any interest on any Note
when the same becomes due and payable and the default continues for a
period of 30 calendar days, whether or not such payment is prohibited by
the provisions of Article 12 hereof;
(c) there is a default by the Company or any Restricted
Subsidiary in the observance or performance of any other covenant in the
Notes or this Indenture for 30 calendar days after written notice from the
Trustee or the holders of not less than 25% in aggregate principal amount
of the Notes then outstanding (except in the case of a default with respect
to Sections 4.17 or 5.01 which shall constitute an Event of Default with
such notice requirement but without such passage of time requirement);
(d) there is a failure to pay when due principal, interest or
premium with respect to any Indebtedness of the Company or any Restricted
Subsidiary thereof, which failure to pay, other than a failure to pay
principal at the final maturity thereof, shall not be cured, waived or
postponed pursuant to an agreement with the holders of such Indebtedness
within 60 days after written notice to the Company by the Trustee or any
Holder, or the acceleration of any such Indebtedness, which acceleration
shall not be rescinded or annulled within 20 days after written notice to
the Company by the Trustee or any Holder, if the aggregate amount of such
Indebtedness, together with the amount of any other such Indebtedness in
default for failure to pay or which has been accelerated, aggregates
$10,000,000 or more at any time;
(e) any final judgment or judgments (not covered by insurance)
which can no longer be appealed for the payment of money in excess of
$10,000,000 shall be rendered against the Company or any Restricted
Subsidiary thereof, and shall not be discharged for any period of 60
consecutive calendar days during which a stay of enforcement shall not be
in effect;
(f) the Company or any Significant Restricted Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its Property,
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(D) makes a general assignment for the benefit of its
creditors,
(E) generally is not able to pay its debts as they become
due, or
(F) takes any corporate action to authorize or effect any
of the foregoing;
(g) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Restricted Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Restricted Subsidiary or for all or substantially all of the Property
of the Company or any Significant Restricted Subsidiary, or
(C) orders the liquidation of the Company or any
Significant Restricted Subsidiary,
and the order or decree remains unstayed and in effect for 60 days; and
(h) any Guarantee of a Significant Restricted Subsidiary ceases
to be in full force and effect or any Guarantee of a Significant Restricted
Subsidiary is declared to be null and void and unenforceable or any
Guarantee of a Significant Restricted Subsidiary is found to be invalid or
any of the Guarantors that is a Significant Restricted Subsidiary denies
its liability under its Guarantee (other than by reason of release of a
Guarantor in accordance with the terms of this Indenture).
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Section 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default of the type
described in Section 6.01(f) or (g)) shall have occurred and be continuing, then
the Trustee or the holders of not less than 25% in aggregate principal amount of
the Notes then outstanding may declare to be immediately due and payable the
entire principal amount of all the Notes then outstanding plus accrued interest
to the date of acceleration and (1) the same shall become immediately due and
payable or (2) if there are any amounts outstanding under the Senior Credit
Facility, shall become immediately due and payable upon the first to occur of an
acceleration under the Senior Credit Facility or five Business Days after
receipt by the Company and the representative under the Senior Credit Facility
of a notice of acceleration; PROVIDED, HOWEVER, that after such acceleration but
before a judgment or decree based on such acceleration is obtained by the
Trustee, the holders of a majority in aggregate principal amount of outstanding
Notes may rescind and annul such acceleration if
(1) all Events of Default, other than nonpayment of principal,
premium, if any, or interest that has become due solely because of the
acceleration, have been cured or waived,
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(2) to the extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been paid,
(3) the Company have paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and
(4) in the event of the cure or waiver of an Event of Default of the
type described in Section 6.01(f) or (g) above, the Trustee shall have
received an Officers' Certificate and an Opinion of Counsel that such Event
of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto. In case an Event of Default of the type described in Section
6.01(f) or (g) above shall occur, the principal, premium and interest amount
with respect to all of the Notes shall be due and payable immediately without
any declaration or other act on the part of the Trustee or the Noteholders.
Section 6.03. 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 premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture and may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 6.04. WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT.
Subject to Sections 2.09, 6.02, 6.07 and 8.02 hereof, the holders of a
majority in principal amount of the Notes then outstanding have the right to
waive past Defaults under this Indenture EXCEPT a Default in the payment of the
principal of, or interest or premium, if any, on any Note as specified in
clauses (a) and (b) of Section 6.10 or in respect of a covenant or a provision
which cannot be modified or amended without the consent of all Holders as
provided for in Section 8.02. The Company shall deliver to the Trustee an
Officers' Certificate stating that the requisite percentage of Holders have
consented to such waiver and attaching copies of such consents. In case of any
such waiver, the Company, the Trustee and the Holders shall be restored to their
former positions and rights hereunder and under the Notes, respectively. This
paragraph of this Section 6.04 shall be in lieu of Section 316(a)(1)(B) of the
TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly excluded from
this Indenture and the Notes, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
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Section 6.05. CONTROL BY MAJORITY.
Subject to Section 2.09, the Holders of a majority in principal amount
of the outstanding Notes have the right to 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 the Trustee by this Indenture. The Trustee,
however, may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines may be unduly prejudicial to the rights
of another Noteholder not taking part in such direction, and the Trustee shall
have the right to decline to follow any such direction if the Trustee, being
advised by counsel, determines that the action so directed may not lawfully be
taken or if the Trustee in good faith shall, by a Trust Officer, determine that
the proceedings so directed may involve it in personal liability; PROVIDED that
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. In the event the Trustee takes any action or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against any loss or
expense caused by taking such action or following such direction. This
Section 6.05 shall be in lieu of Section 316(a)(1)(A) of the TIA, and such
Section 316(a)(1)(A) of the TIA is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA.
Section 6.06. LIMITATION ON SUITS.
Subject to Section 6.07 below, no Holder has any right to institute
any proceeding with respect to this Indenture or any remedy thereunder unless:
(1) the Holder gives the Trustee written notice of a continuing Event
of Default;
(2) the holders of at least 25% in aggregate principal amount of the
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense which
may be incurred in compliance with such request;
(4) the Trustee fails to institute such proceeding within 45 calendar
days after receipt of such notice and the offer of indemnity; and
(5) the Trustee has not received directions inconsistent with such
written request during such 45-day period by the holders of a majority in
aggregate principal amount of the outstanding Notes.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, or premium, if any, or accrued
interest of any Note held by such Holder on or after the respective due dates
expressed in such Note, or to bring suit for the enforcement of any such payment
on or after such respective dates, is absolute and unconditional and shall not
be impaired or affected without the consent of the Holder.
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Section 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal, premium or interest
specified in Section 6.01(a), (b) or (c) hereof occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of unpaid principal, premium and
accrued interest remaining unpaid, together with, to the extent that payment of
such interest is lawful, interest on overdue principal and interest on overdue
installments of interest, in each case at the rate set forth in Section 4.01,
and such further amounts 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 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction of its charges and expenses to the extent that any such charges and
expenses are not paid out of the estate in any such proceedings and any
custodian in any such judicial proceeding is hereby authorized by each
Noteholder 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
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
or reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceedings.
Section 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: if the Holders are forced to proceed against the Company or
any Guarantor directly without the Trustee, to Holders for their collection
costs;
THIRD: to Noteholders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest as to each, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes; and
FOURTH: to the Company or, to the extent the Trustee collects any
amounts from any Guarantor, to such Guarantor.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Noteholders pursuant to this
Section 6.10.
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Section 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
ARTICLE 7
TRUSTEE
Section 7.01. DUTIES OF TRUSTEE.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent person would exercise or use under the circumstances in the
conduct of such person's own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
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:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
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(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive from such Holders an indemnity
reasonably satisfactory to it against such risk, liability, loss, fee or expense
which might be incurred by it in compliance with such request or direction.
(e) Whether or not herein expressly provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
Section 7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01 hereof:
(a) The Trustee may rely on any document reasonably believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting with respect to
any matters contemplated by this Indenture or the Notes it may consult with
counsel and may require an Officers' Certificate or an Opinion of Counsel,
or both, which shall conform to the provisions of Section 13.05 hereof.
The Trustee shall be protected and 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 attorneys and agents and shall not be
responsible for the misconduct or negligence of any attorney or agent
(other than an agent who is an employee of the Trustee) so long as the
appointment of such agent was made with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel of its selection, 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 charged with knowledge of any Default or
Event of Default unless either (i) a Trust Officer shall have actual
knowledge of such Default or Event of Default or (ii) written notice of
such Default or Event of Default shall have been given to the Trustee by
the Company or any Holder.
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Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may make loans to, accept deposits from, perform
services for or otherwise deal with the Company, or any Affiliates thereof, with
the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. The Trustee, however, shall be subject to Sections 7.10 and
7.11 hereof.
Section 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the sale of Notes or any
money paid to the Company pursuant to the terms of this Indenture and it shall
not be responsible for any statement of the Company in this Indenture or the
Notes other than the Trustee's certificate of authentication.
Section 7.05. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs and is continuing and if
the Trustee has actual knowledge of such Default or Event of Default, the
Trustee shall mail to each Noteholder notice of the uncured Default or Event of
Default within 30 days after such Default or Event of Default occurs. Except in
the case of a Default or an Event of Default in payment of principal of, premium
or interest on, any Note, including an accelerated payment and the failure to
make payment on the Change of Control Payment Date pursuant to a Change of
Control Offer or on the Excess Proceeds Payment Date pursuant to an Excess
Proceeds Offer and, except in the case of a failure to comply with Article 5
hereof, the Trustee may withhold the notice if and so long as its Board of
Directors, the executive committee of its Board of Directors or a committee of
its directors and/or Trust Officers in good faith determines that withholding
the notice is in the interest of the Noteholders. This Section 7.05 shall be in
lieu of the proviso to Section 315(b) of the TIA, and such proviso of
Section 315(b) of the TIA is hereby expressly excluded from this Indenture and
the Notes, as permitted by the TIA.
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS.
If required by TIA Section 313(a), within 60 days after May 15 of any
year, commencing the May 15 following the date of this Indenture, the Trustee
shall mail to each Noteholder a brief report dated as of such May 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b), (c) and (d).
Reports pursuant to this Section 7.06 shall be transmitted by mail:
(1) to all registered Holders, as the names and addresses of such
Holders appear on the Registrar's books; and
(2) to such Holder as have, within the two years preceding such
transmission, filed their names and addresses with the Trustee for that
purpose.
A copy of each report at the time of its mailing to Noteholders shall
be filed with the Commission and each stock exchange, if any, on which the Notes
are listed. The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange or of any delisting thereof.
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Section 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
for the Trustee's services. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable fees and expenses,
including out-of-pocket expenses incurred or made by it in connection with the
performance of its duties under this Indenture or in connection with the
collection of any funds. Such expenses shall include the reasonable fees and
expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and its agents,
employees, stockholders and directors and officers for, and hold them harmless
against, any loss, liability or expense incurred by them except for such actions
to the extent caused by any negligence, bad faith or willful misconduct on their
part, arising out of or in connection with the administration of this trust
including the reasonable costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their rights, powers or duties hereunder. The Trustee shall notify the Company
promptly, in writing, of any claim asserted against the Trustee for which it may
seek indemnity. At the Trustee's sole discretion, the Company shall defend the
claim and the Trustee shall cooperate and may participate in the defense;
PROVIDED that any settlement of a claim shall be approved in writing by the
Trustee. The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of, premium or interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(f) or (g) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The obligation of the Company under this Section 7.07 shall survive
the resignation or removal of the Trustee and the satisfaction and discharge of
this Indenture.
Section 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign at any time by so notifying the Company in
writing. The holders of a majority in principal amount of the outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing
and may appoint a successor Trustee. The Company may remove the Trustee at its
election 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 otherwise becomes incapable of acting.
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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 Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Noteholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 hereof shall continue
for the benefit of the retiring Trustee.
Section 7.09. SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER OR CONVERSION.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, subject to this Article 7, the successor corporation without any
further act shall be the successor Trustee.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee which shall be eligible to
act as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The Trustee shall
have a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition. If the Trustee has or shall
acquire any "conflicting interest" within the meaning of TIA Section 310(b), the
Trustee and the Company shall comply with the provisions of TIA Section 310(b);
PROVIDED, HOWEVER, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA
Section 310(b)(1) are met. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 7.10, the Trustee shall resign
immediately in the manner and with the effect hereinbefore specified in this
Article 7.
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311 (b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to
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the extent indicated therein. The provisions of TIA Section 311 shall apply
to the Company as obligors of the Notes.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Guarantors, when authorized by a Board Resolution,
and the Trustee may amend or supplement this Indenture, the Notes or the
Guarantees without notice to or consent of any Noteholder:
(1) to cure any ambiguity, defect or inconsistency; PROVIDED that
such amendment or supplement does not, in the opinion of the Trustee,
adversely affect the rights of any Holder in any material respect;
(2) to provide for uncertificated Notes in addition to or in place of
Certificated Notes;
(3) to comply with Article 5;
(4) to comply with any requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(5) to make any change that would provide any additional benefit or
rights to the Holders;
(6) to make any other change that does not adversely affect the
rights of any Holder under this Indenture;
(7) to add to the covenants of the Company or a Guarantor for the
benefit of the Holders, or to surrender any right or power herein conferred
upon the Company or any Guarantor;
(8) to secure the Notes pursuant to the requirements of Section 4.15
or otherwise;
(9) to reflect the release of a Guarantor from its obligations with
respect to its Guarantee pursuant to Section 10.07 or to add a Guarantor
pursuant to Section 4.21;
Section 8.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.07, the Company, and the Guarantors, when each is
authorized by a Board Resolution of their respective Boards of Directors, and
the Trustee may amend or supplement this Indenture or the Notes or the
Guarantees with the written consent of the Holders of at least a majority in
principal amount of the outstanding Notes. Subject to Section 6.07, the Holders
of a majority in principal amount of the outstanding Notes may waive compliance
by the Company, or any Guarantor with any provision of this Indenture, the
Notes, or the Guarantees. However, without the consent of each Noteholder
affected, an amendment, supplement or waiver, including a waiver pursuant to
Section 6.04, may not:
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(1) reduce the percentage in principal amount of outstanding Notes
whose Holders must consent to an amendment, supplement or waiver, or
consent to take any action under this Indenture or the Notes;
(2) reduce the rate of or change the time for payment of interest
(including Additional Interest) on any Note;
(3) reduce the principal of or change or have the effect of changing
the fixed maturity of any Notes, or change the date on which any Notes may
be subject to redemption or repurchase, or reduce the redemption or
repurchase price therefor;
(4) make any Note payable in money other than that stated in the Note
or changing the place of payment from New York, New York;
(5) waive a Default in the payment of the principal of, or interest
or premium on, or any redemption payment with respect to, any Note (except
a rescission of acceleration of the Notes by the Holders as provided in
Section 6.02 and a waiver of the payment default that resulted from such
acceleration);
(6) make any changes in Sections 6.04 or 6.07 hereof or this sentence
of Section 8.02;
(7) affect the subordination or ranking of the Notes or any Guarantee
in a manner adverse to the Holders;
(8) amend, change or modify in any material respect, any obligation
of the Company to make and consummate a Change of Control Offer in the
event of a Change of Control or, make and consummate an Excess Proceeds
Offer with respect to any Asset Sale that has been consummated or modify
any of the provisions or definitions with respect thereto; or
(9) release any Guarantor that is a Significant Restricted Subsidiary
from any of its obligations under its Guarantee or this Indenture otherwise
than in accordance with the terms of this Indenture.
After an amendment, supplement or waiver under this Section 8.02
becomes effective, the Company shall mail to the Holders 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.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the
consent of the Noteholders as aforesaid and upon receipt by the Trustee of the
documents described in Section 8.06 hereof, the Trustee shall join with the
Company and the Guarantors in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
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It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 8.03. COMPLIANCE WITH XXX.
Every amendment to or supplement of this Indenture, the Notes or the
Guarantees shall comply with the TIA as then in effect.
Section 8.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or portion of such Note by
notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes have consented (and not theretofore revoked
such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Noteholder, unless it makes a change described in any of clauses (1)
through (9) of Section 8.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; PROVIDED that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal of and interest
on a Note, on or after the respective due dates expressed in such Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates without the consent of such Holder.
Section 8.05. NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement, or waiver changes the terms of a Note,
the Trustee may request the Holder to deliver it to the Trustee. In such case,
the Trustee shall place an appropriate notation on the Note about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determine, in exchange for the Note the Company shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment supplement or waiver.
Section 8.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article 8 is
authorized or permitted by this Indenture and that such amendment, supplement or
waiver constitutes
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the legal, valid and binding obligation of the Company and any Guarantors,
enforceable in accordance with its terms (subject to customary exceptions).
The Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall be discharged and shall cease to be of further
effect (except those obligations referred to in the penultimate paragraph of
this Section 9.01) and the Trustee, on written demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when either:
(a) all Notes theretofore authenticated and delivered (other than
(i) Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.07 hereof and (ii) Notes for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee for
cancellation; or
(b) (i) either (A) pursuant to Article 3, the Company shall have
given notice to the Trustee and mailed a notice of redemption to each
Holder of the redemption of all of the Notes under arrangements
satisfactory to the Trustee for the giving of such notice or (B) all Notes
not theretofore delivered to the Trustee for cancellation have become due
and payable; (ii) the Company has irrevocably deposited or caused to be
deposited with the Trustee in trust for the purpose an amount of U.S. legal
tender or U.S. Government Obligations sufficient to pay and discharge the
entire Indebtedness on such Notes not theretofore delivered to the Trustee
for cancellation, for the principal of, premium, if any, and interest to
the date of such deposit; (iii) no Default or Event of Default with respect
to this Indenture or the Notes shall have occurred and be continuing on the
date of such deposit or shall occur 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; (iv) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; (v) the Company has delivered to the
Trustee (A) irrevocable instructions to apply the deposited money toward
payment of the Notes at the maturity thereof, and (B) an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with and that such satisfaction and
discharge does not result in a default under the Senior Credit Facility (if
then in effect) or any other agreement or instrument then known to such
counsel which binds or affects the Company; and (vi) that from and after
the time of deposit, the money deposited shall not be subject to the rights
of holders of Senior Indebtedness pursuant to the provisions of Article 12
or to the rights of holders of Guarantor Senior Indebtedness pursuant to
the provisions of Article 11.
Notwithstanding the foregoing paragraph, the Company's obligations in
Article 2 and Sections 4.01, 4.07, 7.07 and 8.06 shall survive until the Notes
are no longer outstanding pursuant to the last paragraph of
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Section 2.08. After the Notes are no longer outstanding, the Company's
obligations in Sections 7.07, 8.05 and 8.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's and each Guarantor's
obligations under the Notes, the Guarantees and this Indenture except for those
surviving obligations specified above.
Section 9.02. LEGAL DEFEASANCE.
(a) The Company may, at its option by Board Resolution of the
Board of Directors of the Company, at any time, elect to have this section
be applied to all outstanding Notes upon compliance with the conditions set
forth in Section 9.04.
(b) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (b), the Company and each Guarantor
shall, subject to the satisfaction of the conditions set forth in Section
9.04, be deemed to have been discharged from their respective obligations
with respect to all outstanding Notes and the Guarantees on the date the
conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE").
For this purpose, Legal Defeasance means that the Company and each
Guarantor shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes and the Guarantees, which
shall thereafter be deemed to be "outstanding" only for the purposes of
Section 9.05 hereof and the other Sections of this Indenture referred to in
(i) and (ii) below, and to have satisfied all their other respective
obligations under such Notes and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments
acknowledging the same), and Holders of the Notes and any amounts deposited
under Section 9.04 hereof shall cease to be subject to any obligations to,
or the rights of, any holder of Senior Indebtedness under Article 12 or
otherwise or any holder of Guarantor Senior Indebtedness under Article 11
or otherwise, except for the following provisions, which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Notes to receive solely from the trust fund
described in Section 9.05 hereof, and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and
interest on such Notes when such payments are due, (ii) the Company's
obligations with respect to such Notes under Article 2 and Section 4.07
hereof, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith and
(iv) this Article 9. Subject to compliance with this Article 9, the
Company may exercise its option under this Section 9.02 notwithstanding the
prior exercise of its option under Section 9.03 below with respect to the
Notes.
Section 9.03. COVENANT DEFEASANCE.
(a) The Company may, at its option by Board Resolution of the
Board of Directors of the Company, at any time, elect to have this Section
be applied to all outstanding Notes upon compliance with the conditions set
forth in Section 9.04.
(b) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (b), the Company and each Guarantor
shall, subject to the satisfaction of the conditions set forth in Section
9.04 hereof, be released from their respective obligations under the
covenants contained in Sections 4.05, 4.08, 4.09 and 4.10 through 4.21,
inclusive, and Article 5 hereof with respect to the outstanding Notes and
the Guarantees on and after the date the conditions set forth below are
satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Notes and the
Guarantees shall thereafter be deemed
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not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder and Holders of the Notes
and any amounts deposited under Section 9.04 hereof shall cease to be
subject to any obligations to the rights of, any holder of Senior
Indebtedness under Article 12 or otherwise or any holder of Guarantor
Senior Indebtedness under Article 11 or otherwise. For this purpose,
such Covenant Defeasance means that, with respect to the outstanding
Notes and the Guarantees, the Company and each 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 or Default under Section
6.01(c) hereof, but, except as specified above, the remainder of this
Indenture, such Notes and the Guarantees shall be unaffected thereby.
In addition, upon the Company's exercise under paragraph (a) hereof of
the option applicable to this paragraph (b), subject to the satisfaction
of the conditions set forth in Section 9.04 hereof, Sections 6.01(c),
6.01(d) and 6.01(e) shall not constitute Events of Default.
Section 9.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 9.02 or 9.03 hereof to the outstanding Notes and the Guarantees:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, U.S. legal tender or U.S. Government
Obligations, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of, premium, if any, and interest on the Notes on the
stated date for payment thereof or on the applicable Redemption Date, as the
case may be, PROVIDED that the Trustee shall have received an irrevocable
written order from the Company instructing the Trustee to apply such U.S. legal
tender or the proceeds of such U.S. Government Obligations to said payments with
respect to the Notes;
(b) in the case of an election under Section 9.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or (ii) since
the date of this Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders 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;
(c) in the case of an election under Section 9.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel confirming
that the Holders 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;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Sections 6.01(f) and
6.01(g) hereof are concerned, at any time in the period ending on
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the 91st day after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period under any
Bankruptcy Law (it being understood that this condition should not be deemed
to be satisfied until the expiration of such period);
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of or constitute a default under this Indenture or any
other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with;
(h) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) the trust funds will not be subject to any rights
of any holders of Senior Indebtedness of the Company or Guarantor Senior
Indebtedness of any Guarantor, and (ii) assuming no intervening event of the
type described in Sections 6.01(f) and 6.01(g) between the date of deposit and
the 91st day following the deposit or, if longer, ending on the day following
the expiration of the longest preference period under any Bankruptcy Law (it
being understood that this condition should not be deemed to be satisfied until
the expiration of such period) and further assuming that no Holder is an insider
of the Company, after the 91st day following the deposit or, if longer, ending
on the day following the expiration of the longest preference period under any
Bankruptcy Law (it being understood that this condition should not be deemed to
be satisfied until the expiration of such period), the trust funds will not be
subject to the effect of any applicable Bankruptcy Law;
(i) such Legal Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest for purposes of the TIA with respect
to any securities of the Company; and
(j) the Company shall have delivered to the Trustee an Opinion of
Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register as an
investment company under the Investment Company Act of 1940, as amended.
Section 9.05. APPLICATION OF TRUST MONEY.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.01 or 9.04 hereof in
respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of such Notes, of all sums due and to become due
thereon in respect of principal, premium, if any, and accrued interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company and the Guarantors shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 9.01 or 9.04 hereof 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 Notes.
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Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon a written
request of the Company in the form of an Officers' Certificate any money or U.S.
Government Obligations held by it as provided in Section 9.01 or 9.04 hereof
which, in the opinion of a nationally-recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, 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 9.06. REPAYMENT TO THE COMPANY.
Subject to Sections 9.01, 9.,02, 9.03, 9.04, 9.05 and 9.07, the
Trustee and the Paying Agent shall promptly pay to the Company upon request any
excess U.S. legal tender or U.S. Government Obligations held by them at any time
and thereupon shall be relieved from all liability with respect to such money.
The Trustee and the Paying Agent shall pay to the Company upon request any money
held by them for the payment of principal, premium, if any, or interest that
remains unclaimed for two years; PROVIDED that the Trustee or such Paying Agent,
before being required to make any payment, may at the expense of the Company
cause to be published once in a newspaper of general circulation in the City of
New York or mail to each Holder entitled to such money notice that such money
remains unclaimed, and that after a date specified therein which shall be at
least 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Noteholders entitled to such money must look to the
Company for payment as general creditors unless an applicable law designates
another Person.
Section 9.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 9 until such time as the
Trustee or Paying Agent is permitted to apply all such U.S. legal tender or U.S.
Government Obligations in accordance with Section 9.01 hereof; PROVIDED,
HOWEVER, that if the Company or the Guarantors have made any payment of
principal of, premium, if any, or accrued interest on any Notes because of the
reinstatement of their obligations, the Company and each such Guarantor shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
ARTICLE 10
GUARANTEE
Section 10.01. UNCONDITIONAL GUARANTEE.
Each Guarantor hereby unconditionally, jointly and severally,
guarantees to each Holder of a Note authenticated by the Trustee and to the
Trustee and its successors and assigns that the principal of, premium thereon
(if any) and interest on the Notes will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal and interest on any overdue
interest on the Notes and all other obligations of the Company to the Holders or
the Trustee hereunder or under the Notes will be promptly paid in full or
performed, all in accordance with the terms hereof
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and thereof; subject, however, to the limitations set forth in Section 10.03.
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest, notice and all demands whatsoever and covenants that
the Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes and this Indenture. If any Holder or the
Trustee is required by any court or otherwise to return to the Company, any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or any Guarantor, any amount paid by the
Company or any Guarantor to the Trustee or such Holder, each Guarantee, to
the extent theretofore discharged, shall be reinstated in ful force and
effect. Each Guarantor further agrees that, as between a Guarantor, on the
one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations Guaranteed hereby may be accelerated as provided
in Article 6 for the purpose of each Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (y) in the event of any acceleration
of such obligations as provided in Article 6, such obligations (whether or
not due and payable) shall become due and payable by each Guarantor for the
purpose of each Guarantee.
Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Article 10.
Section 10.02. SEVERABILITY.
In case any provision of this Article 10 shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.03. LIMITATION ON GUARANTOR'S LIABILITY; CONTRIBUTION.
Each Guarantor, and by its acceptance hereof, each Holder and the
Trustee, hereby confirm that it is the intention of all such parties that the
Guarantee does not constitute a fraudulent transfer or conveyance for purposes
of Title 11 of the United States Code, as amended, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar U.S. Federal
or state or other applicable law. To effectuate the foregoing intention, each
Holder and each Guarantor hereby irrevocably agree that the obligations of a
Guarantor under its Guarantee shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor, and after giving effect to any collections from or payments made by
or on behalf of such Guarantor in respect of the obligations of such Guarantor
pursuant to the second paragraph of Section 10.03, result in the obligations of
such Guarantor not constituting such a fraudulent transfer or conveyance.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, INTER SE, that in the event any payment or
distribution is made by any Guarantor (a "FUNDING GUARANTOR") under a Guarantee
such Funding Guarantor shall be entitled to a contribution from all other
Guarantors in a PRO RATA amount, based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor), determined in accordance with GAAP,
subject to the first paragraph of this Section 10.03, for all payments, damages
and expenses incurred by such Funding Guarantor in discharging the Company's
obligations with respect to the Notes or any other Guarantor's obligations under
a Guarantee.
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Section 10.04. SUCCESSORS AND ASSIGNS.
This Article 10 shall be binding upon each Guarantor and its
successors and assigns and shall ensure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Notes shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions of this Indenture.
Section 10.05. NO WAIVER.
Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article 10 shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise of any right, power or privilege. The
rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or
benefits which either may have under this Article 10 at law, in equity, by
statute or otherwise.
Section 10.06. RELEASE OF GUARANTOR.
A Guarantor shall be released from all of its obligations under its
Guarantee if:
(i) the Guarantor has sold all or substantially all of its assets
or the Company and its Subsidiaries have sold all of the Capital Stock of
the Guarantor owned by them, in each case in a transaction in compliance
with Sections 4.13 and 5.01 hereof; or
(ii) the Guarantor merges with or into or consolidates with, or
transfers all or substantially all of its assets to, the Company or another
Guarantor in a transaction in compliance with Section 5.01 hereof;
and in each such case, the Company have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with.
Section 10.07. EXECUTION OF SUPPLEMENTAL INDENTURE FOR FUTURE GUARANTORS.
Each Subsidiary which is required to become a Guarantor pursuant to
Section 4.21 shall, and the Company shall cause each such Subsidiary to,
promptly execute and deliver to the Trustee a supplemental indenture
substantially in the form of EXHIBIT F hereto pursuant to which such Subsidiary
shall become a Guarantor under this Article 10 and shall guarantee the
obligations of the Company under the Notes and this Indenture. Concurrently
with the execution and delivery of such supplemental indenture, the Company
shall deliver to the Trustee an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized, executed and delivered by such
Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Guarantee of such Guarantor is a legal,
valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms.
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Section 10.08. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence the Guarantee set forth in this Article 10, each Guarantor
hereby agrees that a notation of such Guarantee shall be placed on each Note
authenticated and made available for delivery by the Trustee and that this
Guarantee shall be executed on behalf of each Guarantor by the manual or
facsimile signature of two Officers or an Officer and the Secretary of each
Guarantor. Each Guarantor hereby agrees that the Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guarantee. If an Officer of a
Guarantor whose signature is on the Guarantee no longer holds that office at the
time the Trustee authenticates the Note on which the Guarantee is endorsed, the
Guarantee shall be valid nevertheless. The delivery of any Note by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of each Guarantor.
Section 10.09. SUBORDINATION OF SUBROGATION AND OTHER RIGHTS.
Each Guarantor hereby agrees that any claim against the Company that
arises from the payment, performance or enforcement of such Guarantor's
obligations under the Guarantee or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to, and
no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Notes in accordance with
the provisions provided therefor in this Indenture.
ARTICLE 11
SUBORDINATION OF GUARANTEE
Section 11.01. GUARANTEE OBLIGATIONS SUBORDINATED TO GUARANTOR SENIOR
INDEBTEDNESS.
Each Guarantor covenants and agrees, and the Trustee and each Holder,
by its acceptance of the Notes, likewise covenants and agrees, that to the
extent and in the manner hereinafter set forth in this Article 11, the
Indebtedness represented by the Guarantee and the payment of all Obligations on
the Notes pursuant to the Guarantee by such Guarantor are hereby expressly made
subordinate and subject in right of payment as provided in this Article 11 to
the prior indefeasible payment in full in cash of all Guarantor Senior
Indebtedness of such Guarantor whether outstanding on the Issue Date or
thereafter incurred.
This Section 11.01 and the following Sections 11.02 through 11.06
shall constitute a continuing offer to all Persons who, in reliance upon such
provisions, become holders of or continue to hold Guarantor Senior Indebtedness
of any Guarantor; such provisions are made for the benefit of the holders of
Guarantor Senior Indebtedness of each Guarantor; and such holders are made
obligees hereunder and they or each of them may enforce such provisions.
Section 11.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, whether voluntary or involuntary, or (b)
any liquidation, dissolution or other winding-up of any Guarantor, whether
voluntary or involuntary and whether or not involving insolvency
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or bankruptcy or (c) any general assignment for the benefit of creditors or
any other marshaling of assets or liabilities of any Guarantor, then and in
any such event:
(1) the holders of all Guarantor Senior Indebtedness of such
Guarantor shall be entitled to receive indefeasible payment in full in cash
of all amounts due on or in respect of all such Guarantor Senior
Indebtedness before the Holders are entitled to receive, pursuant to the
Guarantee of such Guarantor, any payment or distribution of any kind or
character (other than payment or distribution from the trust described in
Section 9.01 or Section 9.04) by such Guarantor on account of any of the
Obligations of such Guarantor under its Guarantee; and
(2) any payment or distribution of assets of such Guarantor of any
kind or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the subordination provisions of this Article 11 shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Guarantor Senior
Indebtedness of such Guarantor or their representative or representatives
or to the trustee or trustees under any indenture under which any
instruments evidencing any of such Guarantor Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on
account of such Guarantor Senior Indebtedness held or represented by each,
to the extent necessary to make payment in full in cash of all such
Guarantor Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Guarantor Senior
Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section 11.02, the Trustee or any Holder shall have received any
payment or distribution of assets of such Guarantor of any kind or
character, whether in cash, Property or securities, including, without
limitation, by way of set-off or otherwise, in respect of any of the
Obligations of any Guarantor pursuant to its Guarantee before all Guarantor
Senior Indebtedness of such Guarantor is indefeasibly paid in full, then
and in such event such payment or distribution shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of such Guarantor for application to the payment of
all such Guarantor Senior Indebtedness remaining unpaid, to the extent
necessary to pay all of such Guarantor Senior Indebtedness in full in cash
or, as acceptable to the holders of such Guarantor Senior Indebtedness, any
other manner, after giving effect to any concurrent payment or
distribution to or for the holders of such Guarantor Senior Indebtedness.
The consolidation of a Guarantor with, or the merger of a Guarantor
with or into, another Person or the liquidation or dissolution of a Guarantor
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article 5 hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of such Guarantor for the purposes of this
Article 11 if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in such Article 5 hereof.
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Section 11.03. SUSPENSION OF GUARANTEED OBLIGATIONS WHEN GUARANTOR SENIOR
INDEBTEDNESS IN DEFAULT.
(a) Unless Section 11.02 hereof shall be applicable, upon the
occurrence of a Payment Default on Designated Senior Indebtedness of any
Guarantor no payment or distribution (other than a payment or distribution from
the trust described in Section 9.01 or Section 9.04) of any assets or securities
of a Guarantor of any kind or character (including, without limitation, cash,
property and any payment or distribution which may be payable or deliverable by
reason of the payment of any other Indebtedness of such Guarantor being
subordinated to its Obligations under its Guarantee) may be made by or on behalf
of such Guarantor, including, without limitation, by way of set-off or
otherwise, for or on account of its Obligations under its Guarantee, or for or
on account of the purchase, redemption or other acquisition of the Notes and
neither the Trustee nor any Holder shall take or receive from any Guarantor,
directly or indirectly in any manner, payment in respect of all or any portion
of its Obligations under its Guarantee commencing on the date of receipt by the
Trustee of a written notice from the representative of the holders of such
Guarantor Senior Indebtedness (the "GUARANTOR REPRESENTATIVE") of the occurrence
of a Payment Default, and in any such event, such prohibition shall continue
until such Payment Default is cured, waived in writing or otherwise ceases to
exist. At such time as the prohibition set forth in the preceding sentence
shall no longer be in effect, subject to the provisions of the following
paragraph (b), such Guarantor shall resume making any and all required payments
in respect of the Obligations, including any missed payments.
(b) Unless Section 11.02 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness
of any Guarantor, no payment or distribution (other than a payment or
distribution made from the trust described in Section 9.01 or Section 9.04) of
any assets of such Guarantor of any kind or character (including, without
limitation, cash, Property and any payment or distribution which may be payable
or deliverable by reason of the payment of any other Indebtedness of such
Guarantor being subordinated to its Obligations under its Guarantee) shall be
made by such Guarantor, including, without limitation, by way of set-off or
otherwise, on account of any of its Obligations and its Guarantee, or on account
of the purchase, redemption, defeasance or other acquisition of the Notes for a
period (the "GUARANTEE PAYMENT BLOCKAGE PERIOD") commencing on the date of
receipt by the Trustee of written notice from the Guarantor Representative of
such Non-Payment Event of Default, unless and until (subject to any blockage of
payments that may then be in effect under the preceding paragraph (a)) the
earliest to occur of the following events: (w) more than 179 days shall have
elapsed since the date of receipt of such written notice by the Trustee, (x)
such Non-Payment Event of Default shall have been cured or waived in writing or
shall have ceased to exist, (y) such Designated Senior Indebtedness shall have
been discharged or indefeasibly paid in full in cash or (z) such Guarantee
Payment Blockage Period shall have been terminated by written notice to such
Guarantor or the Trustee from the Guarantor Representative initiating such
Guarantee Payment Blockage Period, or the holders of at least a majority in
principal amount of such issue of Designated Senior Indebtedness, after which,
in the case of clause (w), (x), (y) or (z), such Guarantor shall resume making
any and all required payments in respect of its Obligations under its Guarantee,
including any missed payments. Notwithstanding any other provisions of this
Indenture, no Non-Payment Event of Default with respect to Designated Senior
Indebtedness which existed or was continuing on the date of the commencement of
any Guarantee Payment Blockage Period initiated by the Guarantor Representative
shall be, or be made, the basis for the commencement of a second Guarantee
Payment Blockage Period initiated by the Guarantor Representative unless such
Non-Payment Event of Default shall have been cured or waived for a period of not
less than 90 consecutive days. In no event shall a Guarantee Payment Blockage
Period extend beyond 179 days from the date of the receipt by the Trustee of the
notice referred to in this Section 11.03(b) or, in the event of a Non-Payment
Event of Default which formed the basis for a Payment Blockage Period under
Section 12.03(b) hereof, 179 days from the date of the receipt by the Trustee of
the notice referred to in Section 12.03(b) (the "INITIAL GUARANTEE BLOCKAGE
PERIOD"). Any number of additional Guar-
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xxxxx Payment Blockage Periods may be commenced during the Initial Guarantee
Blockage Period; PROVIDED, HOWEVER, that no such additional Guarantee Payment
Blockage Period shall extend beyond the Initial Guarantee Blockage Period.
After the expiration of the Initial Guarantee Blockage Period, no Guarantee
Payment Blockage Period may be commenced under this Section 12.03(b) and no
Payment Blockage Period may be commenced under Section 11.03(b) hereof until
at least 180 consecutive days have elapsed from the last day of the Initial
Guarantee Blockage Period.
(c) In the event that, notwithstanding the foregoing, the Trustee
or any Holder shall have received any payment from a Guarantor prohibited by the
foregoing provisions of this Section 11.03, then and in such event such payment
shall be paid over and delivered forthwith to the Guarantor Representative
initiating the Guarantee Payment Blockage Period, in trust for distribution to
the holders of Guarantor Senior Indebtedness or, if no amounts are then due in
respect of Guarantor Senior Indebtedness, promptly returned to the Guarantor, or
as a court of competent jurisdiction shall direct.
Section 11.04. TRUSTEE'S RELATION TO GUARANTOR SENIOR INDEBTEDNESS.
The Trustee and any agent of any Guarantor or the Trustee shall be
entitled to all the rights set forth in this Article 11 with respect to any
Guarantor Senior Indebtedness which may at any time be held by it in its
individual or any other capacity to the same extent as any other holder of
Guarantor Senior Indebtedness and nothing in this Indenture shall deprive the
Trustee or any such agent of any of its rights as such holder.
With respect to the holders of Guarantor Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article 11, and no implied
covenants or obligations with respect to the holders of Guarantor Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Guarantor Senior
Indebtedness and the Trustee shall not be liable to any holder of Guarantor
Senior Indebtedness if it shall mistakenly pay over or deliver to Holders, such
Guarantor or any other person moneys or assets to which any holder of Guarantor
Senior Indebtedness shall be entitled by virtue of this Article 11 or otherwise.
Nothing in this Section 11.04 shall affect the obligation of any other such
person receiving such payment or distribution from the Trustee or any other
Agent to hold such payment for the benefit of, and to pay such payment over to,
the holders of Guarantor Senior Indebtedness.
Section 11.05. SUBROGATION.
Upon the payment in full of all amounts payable under or in respect of
all Guarantor Senior Indebtedness of a Guarantor, the Holders shall be
subrogated to the rights of the holders of such Guarantor Senior Indebtedness to
receive payments and distributions of cash, property and securities of such
Guarantor made on such Guarantor Senior Indebtedness until all amounts due to be
paid under the Guarantee shall be paid in full. For the purposes of such
subrogation, no payments or distributions to holders of Guarantor Senior
Indebtedness of any cash, property or securities to which Holders or the Trustee
would be entitled except for the provisions of this Article 11, and no payments
over pursuant to the provisions of this Article 11 to holders of Guarantor
Senior Indebtedness by Holders or the Trustee, shall, as among each Guarantor,
its creditors other than holders of Guarantor Senior Indebtedness and the
Holders, be deemed to be a payment or distribution by such Guarantor to or on
account of such Guarantor Senior Indebtedness.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 11 shall have been
applied, pursuant to the provisions of this Article 11, to the payment of all
amounts payable under Guarantor Senior Indebtedness, then and in such case, the
Holders shall
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be entitled to receive from the holders of such Guarantor Senior Indebtedness
at the time outstanding any payments or distributions received by such
holders of Guarantor Senior Indebtedness in excess of the amount sufficient
to pay all amounts payable under or in respect of such Guarantor Senior
Indebtedness in full in cash.
Section 11.06. GUARANTEE SUBORDINATION PROVISIONS SOLELY TO DEFINE RELATIVE
RIGHTS.
The subordination provisions of this Article 11 are and are intended
solely for the purpose of defining the relative rights of the Holders on the one
hand and the holders of Guarantor Senior Indebtedness on the other hand.
Nothing contained in this Article 11 or elsewhere in this Indenture or in the
Notes is intended to or shall (a) impair, as among each Guarantor, its creditors
other than holders of its Guarantor Senior Indebtedness and the Holders, the
obligation of such Guarantor, which is absolute and unconditional, to make
payments to the Holders in respect of its Obligations under its Guarantee in
accordance with its terms; or (b) affect the relative rights against such
Guarantor of the Holders and creditors of such Guarantor other than the holders
of the Guarantor Senior Indebtedness; or (c) prevent the Trustee or any Holder
from exercising all remedies otherwise permitted by applicable law upon a
Default or an Event of Default under this Indenture, subject to the rights, if
any, under this Article 11 of the holders of Guarantor Senior Indebtedness (1)
in any case, proceeding, dissolution, liquidation or other winding-up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company referred to in Section 11.02 hereof, to receive,
pursuant to and in accordance with such Section, cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder, or (2) under the
conditions specified in Section 11.03 hereof, to prevent any payment prohibited
by such Section or enforce their rights pursuant to Section 11.03(c) hereof.
The failure by any Guarantor to make a payment in respect of its
obligations on its Guarantee by reason of any provision of this Article 11 shall
not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
Section 11.07. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of an Obligation under a 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 11 and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of a Guarantor whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of such Guarantor owing to such Holder in the form required
in such proceedings.
Section 11.08. NO WAIVER OF SUBORDINATION PROVISIONS.
(a) No right of any present or future holder of any Guarantor
Senior Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of a Guarantor or by any act or failure to act, in good faith, by any such
holder, or by any non-compliance by such 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.
(b) Without limiting the generality of paragraph (a) of this
section, the holders of Guarantor Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders,
without incurring responsibility to the Holders and without impairing or
releasing the subordination provided in this Article 11 or the obligations
hereunder of the Holders to the holders of Guarantor Senior Indebtedness, do any
one or more of the following: (1) change the manner, place or terms of payment
or extend
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the time of payment of, or renew or alter, Guarantor Senior Indebtedness or
any instrument evidencing the same or any agreement under which Guarantor
Senior Indebtedness is outstanding; (2) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Guarantor
Senior Indebtedness; (3) release any person liable in any manner for the
collection or payment of Guarantor Senior Indebtedness; and (4) exercise or
refrain from exercising any rights against a Guarantor and any other person;
PROVIDED, HOWEVER, that in no event shall any such actions limit the right of
the Holders to take any action to accelerate the maturity of the Obligations
under the Guarantees pursuant to Article 6 hereof or to pursue any rights or
remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Indenture.
Section 11.09. NOTICE TO TRUSTEE.
(a) A Guarantor shall give prompt written notice to the Trustee
of any fact known to such Guarantor which would prohibit the making of any
payment to or by the Trustee at its Corporate Trust Office in respect of the
Notes. Notwithstanding the provisions of this Article 11 or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee in respect of the Obligations under the Guarantees, unless and until
the Trustee shall have received written notice thereof from such Guarantor or a
holder of Guarantor Senior Indebtedness or from any trustee, fiduciary or agent
therefor; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of this Section 11.09, shall be entitled in all
respects to assume that no such facts exist; PROVIDED, HOWEVER, that if the
Trustee shall not have received the notice provided for in this Section 11.09 at
least five Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose under this Indenture (including,
without limitation, the payment of the principal of, premium, if any, or
interest on any Obligation under a Guarantee), then, anything herein contained
to the contrary notwithstanding but without limiting the rights and remedies of
the holders of Guarantor Senior Indebtedness or any trustee, fiduciary or agent
therefor, the Trustee shall have full power and authority to receive such money
and to apply the same to the purpose for which such money was received and shall
not be affected by any notice to the contrary which may be received by it
within five Business Days prior to such date; nor shall the Trustee be charged
with knowledge of the curing of any such default or the elimination of the act
or condition preventing any such payment unless and until the Trustee shall have
received an Officers' Certificate to such effect.
(b) In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a holder
of Guarantor Senior Indebtedness to participate in any payment or distribution
pursuant to this Article 11, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Guarantor Senior Indebtedness held by such person, the extent to which such
person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such person under this Article 11, and if such
evidence is not furnished, the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to receive such
payment.
Section 11.10. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of a Guarantor referred to
in this Article 11, the Trustee and the Holders shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding-up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the persons entitled to participate
84
in such payment or distribution, the holders of Guarantor Senior Indebtedness
and other Indebtedness of such Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 11.
Section 11.11. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article 11 shall limit the right of the
Trustee or the Holders to take any action to accelerate the maturity of the
Obligations under the Guarantees pursuant to Article 6 or to pursue any rights
or remedies hereunder or under applicable law, subject to the rights, if any,
under this Article 11 of the holders, from time to time, of Guarantor Senior
Indebtedness.
ARTICLE 12
SUBORDINATION OF NOTES
Section 12.01. NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and the Trustee and each Holder by
its acceptance of Notes likewise covenants and agrees, that to the extent and in
the manner hereinafter set forth in this Article 12; the payment of all
Obligations on the Notes by the Company are hereby expressly made subordinate
and subject in right of payment as provided in this Article 12 to the prior
indefeasible payment in full in cash of all Senior Indebtedness of the Company,
whether outstanding on the Issue Date or thereafter incurred.
This Section 12.01 and the following Sections 12.02 through 12.11
shall constitute a continuing offer to all Persons who, in reliance on such
provisions, become holders of or continue to hold Senior Indebtedness of the
Company; and such provisions are made for the benefit of all the holders of
Senior Indebtedness of the Company; and such holders are made obligees hereunder
and they or each of them may enforce such provisions.
Section 12.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, whether voluntary or involuntary or (b) any
liquidation, dissolution or other winding-up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c) any
general assignment for the benefit of creditors or any other marshalling of
assets or liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness of the Company shall be
entitled to receive indefeasible payment in full in cash of all amounts due
on or in respect of all Senior Indebtedness before the Holders are entitled
to receive any payment or distribution of any kind or character (other than
a payment or distribution from the trust described in Section 9.01 or
Section 9.04) on account of any Obligations on the Notes; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, Property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be enti-
85
tled but for the provisions of this Article 12 shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness or
their representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness
held or represented by each, to the extent necessary to make payment in
full in cash of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section 12.02, the Trustee or any Holder shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including, without limitation, by
way of set-off or otherwise, in respect of the principal of, premium, if
any, and interest on the Notes before all Senior Indebtedness is
indefeasibly paid in full, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of the Company for
application to the payment of all such Senior Indebtedness remaining
unpaid, to the extent necessary to pay all Senior Indebtedness in full in
cash or, as acceptable to the holders of such Senior Indebtedness, any
other manner, after giving effect to any concurrent payment or
distribution, to or for the holders of such Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article 5 hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Article 12 if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in such Article 5 hereof.
Section 12.03. SUSPENSION OF PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
(a) Unless Section 12.02 hereof shall be applicable, upon the
occurrence of a Payment Default on Designated Senior Indebtedness of the
Company, no payment or distribution (other than a payment or distribution from
the trust described in Section 9.01 or Section 9.04) of any assets or securities
of the Company of any kind or character (including, without limitation, cash,
property and any payment or distribution which may be payable or deliverable by
reason of the payment of any other Indebtedness of the Company being
subordinated to the payment of the Notes by the Company) may be made by or on
behalf of the Company or any Restricted Subsidiary of the Company, including,
without limitation, by way of set-off or otherwise, for or on account of any
Obligations under the Notes or this Indenture, or for or on account of the
purchase, redemption or other acquisition of the Notes, and neither the Trustee
nor any Holder shall take or receive from the Company, directly or indirectly in
any manner, payment in respect of all or any portion of Notes commencing on the
date of receipt by the Trustee of written notice from the representative of the
holders of such Designated Senior Indebtedness (the "REPRESENTATIVE") to the
Trustee of written notice of the occurrence of a Payment Default, and in any
such event, such prohibition shall continue until such Payment Default is cured,
waived in writing or otherwise ceases to exist. At such time as the prohibition
set forth in the preceding sentence shall no longer be in
86
effect, subject to the provisions of the following paragraph (b), the Company
shall resume making any and all required payments in respect of the Notes,
including any missed payments.
(b) Unless Section 12.02 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness
of the Company, no payment or distribution (other than a payment or distribution
from the trust described in Section 9.01 or Section 9.04) of any assets of the
Company of any kind or character (including, without limitation, cash, property
and any payment or distribution which may be payable or deliverable by reason of
the payment of any other Indebtedness of the Company being subordinated to the
payment of the Notes by the Company) shall be made by the Company or any
Restricted Subsidiary of the Company, including, without limitation, by way of
set-off or otherwise, on account of any Obligations under the Notes or this
Indenture or on account of the purchase, redemption, defeasance or other
acquisition of Notes for a period (the "PAYMENT BLOCKAGE PERIOD") commencing on
the date of receipt by the Trustee of written notice from the Representative of
such Non-Payment Event of Default unless and until (subject to any blockage of
payments that may then be in effect under the preceding paragraph (a)) the
earliest to occur of the following events: (w) more than 179 days shall have
elapsed since the date of receipt of such written notice by the Trustee, (x)
such Non-Payment Event of Default shall have been cured or waived in writing or
shall have ceased to exist, (y) such Designated Senior Indebtedness shall have
been discharged or indefeasibly paid in full in cash or (z) such Payment
Blockage Period shall have been terminated by written notice to the Company or
the Trustee from the Representative initiating such Payment Blockage Period, or
the holders of at least a majority in principal amount of such issue of
Designated Senior Indebtedness, after which, in the case of clause (w), (x), (y)
or (z), the Company shall resume making any and all required payments in respect
of the Notes, including any missed payments. Notwithstanding any other
provisions of this Indenture, no Non-Payment Event of Default with respect to
Designated Senior Indebtedness which existed or was continuing on the date of
the commencement of any Payment Blockage Period initiated by the Representative
shall be, or be made, the basis for the commencement of a second Payment
Blockage Period initiated by the Representative unless such event of default
shall have been cured or waived for a period of not less than 90 consecutive
days. In no event shall a Payment Blockage Period extend beyond 179 days from
the date of the receipt by the Trustee of the notice referred to in this Section
12.03(b) or in the event of a Non-Payment Event of Default which formed the
basis of a Guarantee Payment Blockage Period under Section 11.03(b) hereof, 179
days from the default the receipt by the Trustee of the notice referred to in
Section 11.03(b) (the "INITIAL BLOCKAGE PERIOD"). Any number of additional
Payment Blockage Periods may be commenced during the Initial Blockage Period;
PROVIDED, HOWEVER, that no such additional Payment Blockage Period shall extend
beyond the Initial Blockage Period. After the expiration of the Initial
Blockage Period, no Payment Blockage Period may be commenced under this clause
(b) and no Guarantee Payment Blockage Period may be commenced under
Section 11.03(b) hereof until at least 180 consecutive days have elapsed from
the last day of the Initial Blockage Period.
(c) In the event that, notwithstanding the foregoing, the Trustee
or any Holder shall have received any payment prohibited by the foregoing
provisions of this Section 12.03, then and in such event such payment shall be
paid over and delivered forthwith to the Representative initiating the Payment
Blockage Period, in trust for distribution to the holders of Senior Indebtedness
or, if no amounts are then due in respect of Senior Indebtedness, promptly
returned to the Company, or otherwise as a court of competent jurisdiction shall
direct.
Section 12.04. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article 12 with respect to any
Senior Indebtedness which may at any time be held by it in its indi-
87
vidual or any other capacity to the same extent as any other holder of Senior
Indebtedness and nothing in this Indenture shall deprive the Trustee or any
such agent of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 12, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall mistakenly pay
over or deliver to Holders, the Company or any other person moneys or assets to
which any holder of Senior Indebtedness shall be entitled by virtue of this
Article 12 or otherwise. Nothing in this Section 12.04 shall affect the
obligation of any other such person receiving such payment or distribution from
the Trustee or any other Agent to hold such payment for the benefit of, and to
pay such payment over to, the holders of Senior Indebtedness.
Section 12.05. SUBROGATION.
Upon the payment in full of all Senior Indebtedness, the Holders shall
be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the Senior Indebtedness until the principal of, premium, if any and interest
on the Notes shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders or the Trustee would be entitled
except for the provisions of this Article 12, and no payments over pursuant to
the provisions of this Article 12 to the holders of Senior Indebtedness by
Holders or the Trustee, shall, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 12 shall have been
applied, pursuant to the provisions of this Article 12, to the payment of all
amounts payable under the Senior Indebtedness of the Company, then and in such
case the Holders shall be entitled to receive from the holders of such Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of such Senior Indebtedness in excess of the amount sufficient to
pay all amounts payable under or in respect of such Senior Indebtedness in full
in cash.
Section 12.06. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article 12 are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Indebtedness on the other hand. Nothing contained in this
Article 12 or elsewhere in this Indenture or in the Notes is intended to or
shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the principal of, premium, if
any, and interest on the Notes as and when the same shall become due and payable
in accordance with their terms; or (b) affect the relative rights against the
Company of the Holders and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon a Default or an Event of
Default under this Indenture, subject to the rights, if any, under this
Article 12 of the holders of Senior Indebtedness (1) in any case, proceeding,
dissolution, liquidation or other winding-up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of the Company referred
to in Section 12.02 hereof, to receive, pursuant to and in accordance with such
section, cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the
88
conditions specified in Section 12.03, to prevent any payment prohibited by
such section or enforce their rights pursuant to Section 12.03(c) hereof.
The failure to make a payment on account of principal of, premium, if
any, or interest on the Notes by reason of any provision of this Article 12
shall not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
Section 12.07. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Note 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 12 and appoints the
Trustee his attorney-in-fact for any and all such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the timely filing of a claim for the unpaid balance of the
indebtedness of the Company owing to such Holder in the form required in such
proceedings.
Section 12.08. NO WAIVER OF SUBORDINATION PROVISIONS.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
(b) Without limiting the generality of paragraph (a) of this
section, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article 12 or the obligations hereunder of the
Holders to the holders of Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
person liable in any manner for the collection or payment of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against the
Company and any other person; PROVIDED, HOWEVER, that in no event shall any such
actions limit the right of the Holders to take any action to accelerate the
maturity of the Notes pursuant to Article 6 hereof or to pursue any rights or
remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Indenture.
Section 12.09. NOTICE TO TRUSTEE.
(a) The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making of any payment
to or by the Trustee at its Corporate Trust Office in respect of the Notes.
Notwithstanding the provisions of this Article 12 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Notes, unless and until the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or from any
trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of this Section 12.09,
shall be entitled in all respects to assume that no such facts exist; PROVIDED,
HOWEVER, that if
89
the Trustee shall not have received the notice provided for in this Section
12.09 at least five Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose under this Indenture
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Note), then, anything herein contained to the
contrary notwithstanding but without limiting the rights and remedies of the
holders of Senior Indebtedness or any trustee, fiduciary or agent therefor,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purpose for which such money was received and shall not
be affected by any notice to the contrary which may be received by it within
five Business Days prior to such date; nor shall the Trustee be charged with
knowledge of the curing of any such default or the elimination of the act or
condition preventing any such payment unless and until the Trustee shall have
received an Officers' Certificate to such effect.
(b) In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 12, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article 12, and if such evidence is not furnished, the
Trustee may defer any payment to such person pending judicial determination as
to the right of such person to receive such payment.
Section 12.10. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article 12, the Trustee and the Holders shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding-up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this
Article 12.
Section 12.11. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article 12 shall limit the right of the
Trustee or the Holders to take any action to accelerate the maturity of the
Notes pursuant to Article 6 or to pursue any rights or remedies hereunder or
under applicable law, subject to the rights, if any, under this Article 12 of
the holders, from time to time, of Senior Indebtedness.
ARTICLE 13
MISCELLANEOUS
Section 13.01. TIA CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
90
Section 13.02. NOTICES.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to the Company or any Guarantor:
Transportation Manufacturing Operations, Inc.
00 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Trustee:
IBJ Whitehall Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
The Company, any Guarantor or the Trustee by written notice to the
others may designate additional or different addresses for subsequent notices or
communications. Any notice or communication to the Company, any Guarantors or
the Trustee, shall be deemed to have been given or made as of the date so
delivered if personally delivered; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and five (5) calendar days after mailing if sent
by registered or certified mail, postage prepaid (except that a notice of change
of address shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Noteholder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication to a Noteholder is mailed in the manner provided
above, it shall be deemed duly given, whether or not the addressee receives it.
91
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Section 13.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
Section 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, the Company or such Guarantor,
as the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 13.05 below) stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 13.05 below) stating that, in the opinion of such counsel,
all such conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with.
Section 13.05. STATEMENTS REQUIRED IN CERTIFICATE AND OPINION.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition and the definitions relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, it or he has
made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such covenant or condition has been complied with.
Section 13.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at meetings of
Noteholders. The Registrar and Paying Agent may make reasonable rules for their
functions.
92
Section 13.07. BUSINESS DAYS; LEGAL HOLIDAYS.
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on
which banking institutions are not required to be open in the State of New York.
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 13.08. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO 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 OR THE NOTES.
Section 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 13.10. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or incorporator, as such,
of the Company or any Guarantor shall not have any liability for any obligations
of the Company or any Guarantor under the Notes, the Guarantees or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creations. Each Noteholder by accepting a Note waives and
releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
Section 13.11. SUCCESSORS.
All agreements of each of the Company and each Guarantor in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee, any additional trustee and any Paying Agents in this Indenture
shall bind its successor.
Section 13.12. MULTIPLE COUNTERPARTS.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 13.13. 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, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
93
Section 13.14. SEPARABILITY.
Each provision of this Indenture shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
94
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed all as of the date and year first written above.
TRANSPORTATION MANUFACTURING
OPERATIONS, INC.
(to be renamed Motor Coach Industries
International, Inc.)
By:
-----------------------------------
Name:
Title:
95
Guarantors:
BUSLEASE, INC.
By:
-----------------------------------
Name:
Title:
XXXXXXX BUS SALES, INC.
By:
-----------------------------------
Name:
Title:
MOTOR COACH INDUSTRIES, INC.
By:
-----------------------------------
Name:
Title:
TRANSIT BUS INTERNATIONAL, INC.
By:
-----------------------------------
Name:
Title:
UNIVERSAL COACH PARTS, INC.
By:
-----------------------------------
Name:
Title:
96
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By:
-----------------------------------
Name:
Title:
EXHIBIT A
CUSIP No.:
TRANSPORTATION MANUFACTURING OPERATIONS, INC.
(to be renamed Motor Coach Industries International, Inc.)
11 1/4% SENIOR SUBORDINATED NOTE DUE 2009
No. $
TRANSPORTATION MANUFACTURING OPERATIONS, INC., a Delaware corporation
(the "Company," which term includes any successor entity), for value received
promises to pay to or registered assigns, the principal sum of
$ on May 1, 2009.
Interest Payment Dates: May 1 and November 1, commencing November 1,
1999.
Record Dates: April 15 and October 15.
Reference is made to the further provisions of this Note contained
herein and the Indenture (as defined), which will for all purposes have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
TRANSPORTATION MANUFACTURING
OPERATIONS, INC.
By: ____________________________
Name:
Title:
By: ___________________________
Name:
Title:
A-1
CERTIFICATE OF AUTHENTICATION
This is one of the 11 1/4% Senior Subordinated Notes due 2009 referred
to in the within-mentioned Indenture.
IBJ WHITEHALL BANK & TRUST COMPANY
as Trustee
By: ____________________________
Authorized Signatory
A-2
(REVERSE OF SECURITY)
11 1/4% SENIOR SUBORDINATED NOTE DUE 2009
1. INTEREST. TRANSPORTATION MANUFACTURING OPERATIONS, INC., a
Delaware corporation (the "COMPANY"), promises to pay interest on the principal
amount of this Note at the rate PER ANNUM shown above. Interest on the Notes
will accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from the date of the original issuance of the Notes.
The Company will pay interest semi-annually in arrears on each Interest Payment
Date, commencing November 1, 1999. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful from time to time on demand at the rate borne by the Notes.
2. METHOD OF PAYMENT. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on April 15 or October 15 immediately preceding the
Interest Payment Date (whether or not such day is a Business Day) even if the
Notes are cancelled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Notes to a Paying Agent to
collect principal payments. Payments of principal and premium, if any, will be
made (on presentation of such Notes if in certificated form) in money of the
United States that at the time of payment is legal tender for payment of public
and private debts; PROVIDED, HOWEVER, that the Company may pay principal,
premium, if any, and interest by check payable in such money. The Company may
deliver any such interest payment to the Paying Agent or to a Holder at the
Holder's registered address.
3. PAYING AGENT AND REGISTRAR. Initially, IBJ Whitehall Bank &
Trust Company, a banking organization organized under the laws of New York (the
"TRUSTEE"), will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders. Neither
the Company nor any of its Subsidiaries or Affiliates may act as Paying Agent
but may act as Registrar or co-Registrar.
4. INDENTURE. The Company issued this Note under an Indenture,
dated as of June 16, 1999 (the "INDENTURE"), by and among the Company, the
Guarantors and the Trustee. This Note is one of a duly authorized issue of
Initial Notes of the Company designated as its 11 1/4% Senior Subordinated Notes
due 2009 (the "NOTES"). The Notes are limited in aggregate principal amount to
$152,250,000 and one or more additional series of Notes to be issued from time
to time in aggregate principal amounts of not less than $25 million as provided
in the Indenture. The Notes include the Initial Notes and the Exchange Notes
(as defined below) issued in exchange for the Initial Notes pursuant to the
Indenture. The Initial Notes and the Exchange Notes are treated as a single
class of securities under the Indenture. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections -
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA for a
statement of them. The Notes are general unsecured obligations of the Company.
5. SUBORDINATION. The Notes are unsecured obligations of the
Company and subordinated in right of payment, in the manner and to the extent
set forth in the Indenture, to the prior payment in full in cash of all Senior
Indebtedness of the Company, whether outstanding on the date of the Indenture or
thereafter created, incurred, assumed or guaranteed. Each Holder by his
acceptance hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee, on his behalf, to take such action as may be
neces-
A-3
sary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-fact for such purposes.
6. GUARANTEE. The obligations of the Company hereunder are
guaranteed on a senior subordinated basis by the Guarantors. Each Guarantee by
a Guarantor is subordinated in right of payment to all Guarantor Senior
Indebtedness of such Guarantor to the same extent that the Notes are
subordinated to Senior Indebtedness of the Company.
7. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Company may redeem the Notes, at its
option, in whole at any time or in part from time to time, on and after May 1,
2004 at the following Redemption Prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month period commencing
on May 1 of the year set forth below, plus, in each case, accrued and unpaid
interest thereon, if any, to the date of redemption.
Year Percentage
2004..................................................... 105.625%
2005..................................................... 103.750%
2006..................................................... 101.875%
2007 and thereafter...................................... 100.000%
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. Notwithstanding
the foregoing, the Company may redeem in the aggregate up to 35% of the original
principal amount of Notes at any time and from time to time prior to May 1, 2002
at a Redemption Price equal to 111.25% of the aggregate principal amount so
redeemed, plus accrued and unpaid interest, if any, to the Redemption Date out
of the Net Proceeds of one or more Equity Offerings; provided that
(1) at least 65% of the principal amount of Notes originally
issued remains outstanding immediately after the occurrence of any such
redemption and
(2) any such redemption occurs within 90 days following the
closing of any such Equity Offering.
8. NOTICE OF REDEMPTION. Notice of redemption under paragraphs
7(a) and 7(b) of this Note will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Notes to be redeemed at such
Xxxxxx's registered address.
Except as set forth in the Indenture, if monies for the redemption of
the Notes called for redemption shall have been deposited with the Paying Agent
for redemption on such Redemption Date, then, unless the Company defaults in the
payment of such Redemption Price plus accrued interest, if any, the Notes called
for redemption will cease to bear interest from and after such Redemption Date
and the only right of the Holders of such Notes will be to receive payment of
the Redemption Price plus accrued interest, if any.
9. OFFERS TO PURCHASE. The Indenture provides that, after
certain Asset Sales (as defined in the Indenture) and upon the occurrence of a
Change of Control (as defined in the Indenture), and subject to further
limitations contained therein, the Company will make an offer to purchase
certain amounts of the Notes in accordance with the procedures set forth in the
Indenture.
A-4
10. REGISTRATION RIGHTS. Pursuant to the Registration Rights
Agreement by and among the Company, the Guarantors and the Initial Purchasers,
the Company will be obligated to consummate an exchange offer pursuant to which
the Holder of this Note shall have the right to exchange this Note for the
Company's Series B 11 1/4% Senior Subordinated Notes due 2009 (the "EXCHANGE
NOTES"), which have been registered under the Securities Act, in like principal
amount and having terms identical in all material respects to the Initial Notes.
The Holders of the Initial Notes shall be entitled to receive certain Additional
Interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
11. DENOMINATIONS; TRANSFER; EXCHANGE. The Notes are in
registered form, without coupons, in denominations of $1,000 and integral
multiples thereof. A Holder shall register the transfer or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
certain transfer taxes or similar governmental charges payable in connection
therewith as permitted by the Indenture. The Registrar need not register the
transfer of or exchange of any Notes or portions thereof selected for
redemption.
12. PERSONS DEEMED OWNERS. The registered Holder of a Note shall
be treated as the owner of it for all purposes.
13. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company. After that, Holders entitled to money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another person.
14. DEFEASANCE AND COVENANT DEFEASANCE. If the Company at any
time deposits with the Trustee U.S. legal tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating to
defeasance, the Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of and interest on the Notes).
15. AMENDMENTS, SUPPLEMENTS, AND WAIVERS. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency, provide for uncertificated
Notes in addition to or in place of certificated Notes or make any other change
that does not adversely affect in any material respect the rights of any Holder
of a Note.
16. RESTRICTIVE COVENANTS. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of its Capital
Stock, enter into transactions with Affiliates, create dividend or other payment
restrictions affecting Subsidiaries, merge or consolidate with any other person,
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets. Such limitations are subject to a number of
important qualifications and exceptions. The Company must annually report to
the Trustee on compliance with such limitations.
17. SUCCESSOR ENTITY. When a successor entity assumes, in
accordance with the Indenture, all the obligations of its predecessor under the
Notes and the Indenture, and immediately before and thereafter no Default exists
and certain other conditions are satisfied, the predecessor entity will be
released from those obligations.
A-5
18. DEFAULTS AND REMEDIES. Events of Default are set forth in the
Indenture. If an Event of Default (other than an Event of Default pursuant to
Section 6.01(f) or (g) of the Indenture) shall have occurred and be continuing,
then the Trustee or the holders of not less than 25% in aggregate principal
amount of the Notes then outstanding, may declare to be immediately due and
payable the entire principal amount of all the Notes then outstanding plus
accrued interest to the date of acceleration; PROVIDED, HOWEVER, that after such
acceleration but before a judgment or decree based on such acceleration is
obtained by the Trustee, the holders of a majority in aggregate principal amount
of the outstanding Notes may rescind and annul such acceleration and its
consequences if all existing Events of Default, other than the nonpayment of
principal, premium, if any, or interest that has become due solely because of
the acceleration, have been cured or waived. No such rescission shall affect any
subsequent Default or impair any right consequent thereto. In case an Event of
Default specified in Section 6.01(f) or (g) of the Indenture occurs, such
principal amount, together with premium, if any, and interest with respect to
all of the Notes, shall be due and payable immediately without any declaration
or other act on the part of the Trustee or the Holders of the Notes.
19. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company, and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
20. NO RECOURSE AGAINST OTHERS. As more fully described in the
Indenture, no director, officer, employee, stockholder or incorporator, as such,
of the Company shall have any liability for any obligation of the Company under
the Notes or the Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Noteholder by accepting a Note
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
21. AUTHENTICATION. This Note shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of authentication
on this Note.
22. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE HAS AGREED 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 NOTE.
23. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may
be used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
24. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes as a convenience to the Holders.
No representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
25. INDENTURE. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
The Company will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests may be made to: Transportation Manufacturing Operations,
Inc., 00 Xxxx Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxx 00000, Attention: Executive Vice
President, Finance and Administration.
A-6
FORM OF GUARANTEE
SENIOR SUBORDINATED GUARANTEE
Each Guarantor (capitalized terms used herein have the meanings given
such terms in the Indenture referred to in the Note upon which this notation is
endorsed) hereby unconditionally guarantees on a senior subordinated basis (such
guarantee being referred to herein as the "GUARANTEE") the due and punctual
payment of the principal of, premium, if any, and interest on the Notes, whether
at maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal, premium and interest on the Notes, and the
due and punctual performance of all other obligations of the Company to the
Holders or the Trustee, all in accordance with the terms set forth in Article 10
of the Indenture.
The obligations of each Guarantor to the Holders and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth, and are
expressly subordinated and subject in right of payment to the prior payment in
full of all Guarantor Senior Indebtedness of each Guarantor, to the extent and
in the manner provided in Article 11 of the Indenture.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Notes upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
law.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
BUSLEASE, INC.
By: ----------------------------------
Name:
Title:
XXXXXXX BUS SALES, INC.
By: ----------------------------------
Name:
Title:
A-7
MOTOR COACH INDUSTRIES, INC.
By: ----------------------------------
Name:
Title:
TRANSIT BUS INTERNATIONAL, INC.
By: ----------------------------------
Name:
Title:
UNIVERSAL COACH PARTS, INC.
By: ----------------------------------
Name:
Title:
A-8
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Note to:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint _______________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: ______________________________ Signed: ________________________________
(Sign exactly as your name
appears on the other side of
this Note)
Medallion Guarantee: _____________________________
A-9
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.13 or Section 4.17 of the Indenture, check the appropriate
box:
Section 4.13 / /
Section 4.17 / /
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.13 or Section 4.17 of the Indenture, state the
amount you elect to have purchased:
$ __________________
Date: _______________________ ________________________________________
NOTICE: The signature on this
assignment must correspond with the name
as it appears upon the face of the
within Note in every particular without
alteration or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Medallion Guarantee:__________________________________
A-10
EXHIBIT B
ISIN No.:
TRANSPORTATION MANUFACTURING OPERATIONS, INC.
(to be renamed Motor Coach Industries International, Inc.)
SERIES B 11 1/4% SENIOR SUBORDINATED NOTE DUE 2009
No. $
TRANSPORTATION MANUFACTURING OPERATIONS, INC., a Delaware corporation
(the "Company," which term includes any successor entity), for value received
promises to pay to or registered assigns, the principal sum of
$ on May 1, 2009.
Interest Payment Dates: May 1 and November 1, commencing November 1,
1999.
Record Dates: April 15 and October 15.
Reference is made to the further provisions of this Note contained
herein and the Indenture (as defined), which will for all purposes have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
TRANSPORTATION MANUFACTURING
OPERATIONS, INC.
By: ____________________________
Name:
Title:
By: ___________________________
Name:
Title:
B-1
CERTIFICATE OF AUTHENTICATION
This is one of the Series B 11 1/4% Senior Subordinated Notes due 2009
referred to in the within-mentioned Indenture.
IBJ WHITEHALL BANK & TRUST COMPANY
as Trustee
By: ____________________________
Authorized Signatory
B-2
(REVERSE OF SECURITY)
11 1/4% SENIOR SUBORDINATED NOTE DUE 2009
1. INTEREST. TRANSPORTATION MANUFACTURING OPERATIONS, INC., a
Delaware corporation (the "COMPANY"), promises to pay interest on the principal
amount of this Note at the rate PER ANNUM shown above. Interest on the Notes
will accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from the date of the original issuance of the Notes.
The Company will pay interest semi-annually in arrears on each Interest Payment
Date, commencing November 1, 1999. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful from time to time on demand at the rate borne by the Notes.
2. METHOD OF PAYMENT. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on April 15 or October 15 immediately preceding the
Interest Payment Date (whether or not such day is a Business Day) even if the
Notes are cancelled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Notes to a Paying Agent to
collect principal payments. Payments of principal and premium, if any, will be
made (on presentation of such Notes if in certificated form) in money of the
United States that at the time of payment is legal tender for payment of public
and private debts; PROVIDED, HOWEVER, that the Company may pay principal,
premium, if any, and interest by check payable in such money. The Company may
deliver any such interest payment to the Paying Agent or to a Holder at the
Holder's registered address.
3. PAYING AGENT AND REGISTRAR. Initially, IBJ Whitehall Bank &
Trust Company, a banking organization organized under the laws of New York (the
"TRUSTEE"), will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders. Neither
the Company nor any of its Subsidiaries or Affiliates may act as Paying Agent
but may act as Registrar or co-Registrar.
4. INDENTURE. The Company issued this Note under an Indenture,
dated as of June 16, 1999 (the "INDENTURE"), by and among the Company, the
Guarantors and the Trustee. This Note is one of a duly authorized issue of
Notes of the Company designated as its Series B 11 1/4% Senior Subordinated
Notes due 2009 (the "EXCHANGE NOTES") issued in exchange for the initial 11/
1/4% Senior Subordinated Notes due 2009 (the "INITIAL NOTES" and, together with
the Exchange Notes, the "NOTES"). The Notes are limited in aggregate principal
amount to $152,500,000 and one or more additional series of Notes to be issued
from time to time in aggregate principal amounts of not less than $25 million as
provided in the Indenture. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"),
as in effect on the date of the Indenture. Notwithstanding anything to the
contrary herein, the Notes are subject to all such terms, and Holders of Notes
are referred to the Indenture and the TIA for a statement of them. The Notes
are general unsecured obligations of the Company.
5. SUBORDINATION. The Notes are unsecured obligations of the
Company and subordinated in right of payment, in the manner and to the extent
set forth in the Indenture, to the prior payment in full in cash of all Senior
Indebtedness of the Company, whether outstanding on the date of the Indenture or
thereafter created, incurred, assumed or guaranteed. Each Holder by his
acceptance hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee, on his behalf, to take such action as may be
neces-
B-3
sary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-fact for such purposes.
6. GUARANTEE. The obligations of the Company hereunder are
guaranteed on a senior subordinated basis by the Guarantors. Each Guarantee by
a Guarantor is subordinated in right of payment to all Guarantor Senior
Indebtedness of such Guarantor to the same extent that the Notes are
subordinated to Senior Indebtedness of the Company.
7. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Company may redeem the Notes, at its
option, in whole at any time or in part from time to time, on and after May 1,
2004 at the following Redemption Prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month period commencing
on May 1 of the year set forth below, plus, in each case, accrued and unpaid
interest thereon, if any, to the date of redemption.
Year Percentage
---- ----------
2004................................... 105.625%
2005................................... 103.750%
2006................................... 101.875%
2007 and thereafter.................... 100.000%
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. Notwithstanding
the foregoing, the Company may redeem in the aggregate up to 35% of the original
principal amount of Notes at any time and from time to time prior to May 1, 2002
at a Redemption Price equal to 111.25% of the aggregate principal amount so
redeemed, plus accrued and unpaid interest, if any, to the Redemption Date out
of the Net Proceeds of one or more Equity Offerings; provided that
(1) at least 65% of the principal amount of Notes originally
issued remains outstanding immediately after the occurrence of any such
redemption and
(2) any such redemption occurs within 90 days following the
closing of any such Equity Offering.
8. NOTICE OF REDEMPTION. Notice of redemption under paragraphs
7(a) and 7(b) of this Note will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Notes to be redeemed at such
Xxxxxx's registered address.
Except as set forth in the Indenture, if monies for the redemption of
the Notes called for redemption shall have been deposited with the Paying Agent
for redemption on such Redemption Date, then, unless the Company defaults in the
payment of such Redemption Price plus accrued interest, if any, the Notes called
for redemption will cease to bear interest from and after such Redemption Date
and the only right of the Holders of such Notes will be to receive payment of
the Redemption Price plus accrued interest, if any.
9. OFFERS TO PURCHASE. The Indenture provides that, after
certain Asset Sales (as defined in the Indenture) and upon the occurrence of a
Change of Control (as defined in the Indenture), and subject to further
limitations contained therein, the Company will make an offer to purchase
certain amounts of the Notes in accordance with the procedures set forth in the
Indenture.
B-4
10. DENOMINATIONS; TRANSFER; EXCHANGE. The Notes are in
registered form, without coupons, in denominations of $1,000 and integral
multiples thereof. A Holder shall register the transfer or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
certain transfer taxes or similar governmental charges payable in connection
therewith as permitted by the Indenture. The Registrar need not register the
transfer of or exchange of any Notes or portions thereof selected for
redemption.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note shall
be treated as the owner of it for all purposes.
12. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company. After that, Holders entitled to money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another person.
13. DEFEASANCE AND COVENANT DEFEASANCE. If the Company at any
time deposits with the Trustee U.S. legal tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating to
defeasance, the Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of and interest on the Notes).
14. AMENDMENTS, SUPPLEMENTS, AND WAIVERS. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency, provide for uncertificated
Notes in addition to or in place of certificated Notes or make any other change
that does not adversely affect in any material respect the rights of any Holder
of a Note.
15. RESTRICTIVE COVENANTS. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of its Capital
Stock, enter into transactions with Affiliates, create dividend or other payment
restrictions affecting Subsidiaries, merge or consolidate with any other person,
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets. Such limitations are subject to a number of
important qualifications and exceptions. The Company must annually report to
the Trustee on compliance with such limitations.
16. SUCCESSOR ENTITY. When a successor entity assumes, in
accordance with the Indenture, all the obligations of its predecessor under the
Notes and the Indenture, and immediately before and thereafter no Default exists
and certain other conditions are satisfied, the predecessor entity will be
released from those obligations.
17. DEFAULTS AND REMEDIES. Events of Default are set forth in the
Indenture. If an Event of Default (other than an Event of Default pursuant to
Section 6.01(f) or (g) of the Indenture) shall have occurred and be continuing,
then the Trustee or the holders of not less than 25% in aggregate principal
amount of the Notes then outstanding, may declare to be immediately due and
payable the entire principal amount of all the Notes then outstanding plus
accrued interest to the date of acceleration; PROVIDED, HOWEVER, that after such
acceleration but before a judgment or decree based on such acceleration is
obtained by the Trustee, the holders of a majority in aggregate principal amount
of the outstanding Notes may rescind and annul such acceleration and its
consequences if all existing Events of Default, other than the nonpayment of
principal, premium, if any, or interest that has become due solely because of
the acceleration, have been cured or waived. No such rescission shall
B-5
affect any subsequent Default or impair any right consequent thereto. In
case an Event of Default specified in Section 6.01(f) or (g) of the Indenture
occurs, such principal amount, together with premium, if any, and interest
with respect to all of the Notes, shall be due and payable immediately
without any declaration or other act on the part of the Trustee or the
Holders of the Notes.
18. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company, and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
19. NO RECOURSE AGAINST OTHERS. As more fully described in the
Indenture, no director, officer, employee, stockholder or incorporator, as such,
of the Company shall have any liability for any obligation of the Company under
the Notes or the Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Noteholder by accepting a Note
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
20. AUTHENTICATION. This Note shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of authentication
on this Note.
21. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE HAS AGREED 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 NOTE.
22. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may
be used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes as a convenience to the Holders.
No representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
24. INDENTURE. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
The Company will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests may be made to: Transportation Manufacturing Operations,
Inc., 00 Xxxx Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxx 00000, Attention: Executive Vice
President, Finance and Administration.
B-6
FORM OF GUARANTEE
SENIOR SUBORDINATED GUARANTEE
Each Guarantor (capitalized terms used herein have the meanings given
such terms in the Indenture referred to in the Note upon which this notation is
endorsed) hereby unconditionally guarantees on a senior subordinated basis (such
guarantee being referred to herein as the "GUARANTEE") the due and punctual
payment of the principal of, premium, if any, and interest on the Notes, whether
at maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal, premium and interest on the Notes, and the
due and punctual performance of all other obligations of the Company to the
Holders or the Trustee, all in accordance with the terms set forth in Article 10
of the Indenture.
The obligations of each Guarantor to the Holders and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth, and are
expressly subordinated and subject in right of payment to the prior payment in
full of all Guarantor Senior Indebtedness of each Guarantor, to the extent and
in the manner provided in Article 11 of the Indenture.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Notes upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
law.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
BUSLEASE, INC.
By: _________________________
Name:
Title:
XXXXXXX BUS SALES, INC.
By: _________________________
Name:
Title:
B-7
MOTOR COACH INDUSTRIES, INC.
By: _________________________
Name:
Title:
TRANSIT BUS INTERNATIONAL, INC.
By: _________________________
Name:
Title:
UNIVERSAL COACH PARTS, INC.
By: _________________________
Name:
Title:
B-8
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Note to:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ______________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: ______________________ Signed: _______________________________
(Sign exactly as your name
appears on the other side of
this Note)
Medallion Guarantee: ___________________________
B-9
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.13 or Section 4.17 of the Indenture, check the appropriate
box:
Section 4.13 / /
Section 4.17 / /
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.13 or Section 4.17 of the Indenture, state the
amount you elect to have purchased:
$ __________________
Date: __________________________ _______________________________________
NOTICE: The signature on this
assignment must correspond with the name
as it appears upon the face of the
within Note in every particular without
alteration or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Medallion Guarantee: ___________________________
B-10
EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: Transportation Manufacturing Operations, Inc. (the "COMPANY")
11 1/4% SENIOR SUBORDINATED NOTES DUE 2009 (THE "NOTES")
This Certificate relates to $_______ principal amount of Notes held in
the form of* ___ a beneficial interest in a Global Note or* _______ Certificated
Notes by ______ (the "TRANSFEROR").
The Transferor:
/ / has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Note held by the Depository a
Certificated Note or Certificated Notes in definitive, registered form of
authorized denominations and an aggregate number equal to its beneficial
interest in such Global Note (or the portion thereof indicated above); or
/ / has requested by written order that the Registrar exchange or
register the transfer of a Certificated Note or Certificated Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Notes and the restrictions on
transfers thereof as provided in Section 2.16 of such Indenture, and that the
transfer of the Notes does not require registration under the Securities Act of
1933, as amended (the "SECURITIES ACT"), because*:
/ / Such Note is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16 of the Indenture).
/ / Such Note is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act), in reliance on
Rule 144A.
/ / Such Note is being transferred to an institutional "accredited
investor" (within the meaning of subparagraph (a)(1), (2), (3) or (7) of
Rule 501 under the Securities Act) which delivers a certificate to the Trustee
in the form of EXHIBIT D to the Indenture.
/ / Such Note is being transferred in reliance on Regulation S
under the Securities Act and a transfer certificate for Regulation S transfers
in the form of EXHIBIT E to the Indenture accompanies this certification. [An
Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this certification.]
/ / Such Note is being transferred in reliance on Rule 144 under
the Securities Act. [An Opinion of Counsel to the effect that such transfer
does not require registration under the Securities Act accompanies this
certification.]
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/ / Such Note is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144A or Rule 144 under the Securities Act to a
person other than an institutional "accredited investor." [An Opinion of
Counsel to the effect that such transfer does not require registration under the
Securities Act accompanies this certification.]
____________________________________
[INSERT NAME OF TRANSFEROR]
By: ____________________________________
[Authorized Signatory]
Date: ___________________________
*Check applicable box.
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EXHIBIT D
Form of Transferee Letter of Representation
IBJ Whitehall Bank & Trust Company
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Corporate Trust Division
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $________
principal amount of the 11 1/4% Senior Subordinated Notes due 2009 of
Transportation Manufacturing Operations, Inc., (the "COMPANY") and any
guarantee thereof (the "NOTES"). Upon transfer, the Notes would be registered
in the name of the new beneficial owner as follows:
Name: _____________________________________________
Address: __________________________________________
Taxpayer ID Number: _______________________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933 (the
"SECURITIES ACT")) purchasing Notes for our own account or for the account of
such an institutional "accredited investor" and we are acquiring the Notes not
with a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act. We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risk of our investment in the Notes and we invest in or purchase securities
similar to the Notes in the normal course of our business. We and any accounts
for which we are acting are each able to bear the economic risk of our or its
investment.
2. We acknowledge that we have had access to such financial and
other information, and have been afforded the opportunity to ask such questions
of representatives of the Company and receive answers thereto, as we deem
necessary.
3. We understand that the Notes have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf
of any investor account for which we are purchasing Notes that we will not prior
to the date (the "RESALE RESTRICTION TERMINATION DATE") that is two years after
the later of the original issuance of the Note and the last date on which the
Company or any affiliate of the Company was the owner of such Notes (or any
predecessor thereto) offer, sell or otherwise transfer such Notes except (a) to
the Company or any subsidiary of the Company, (b) inside the United States to a
"qualified institutional buyer" in compliance with Rule 144A under the
Securities Act (c) inside the United States to an "institutional accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act
that, prior to such transfer, furnishes (or has furnished on its behalf by a
U.S. broker-dealer) to the Trustee a signed letter substantially in the form of
this letter (d) outside the United States in an offshore transaction in
compliance with Rule 904 under the Securities Act (e) pursuant to any other
available exemption from the registration requirements of the Securities Act or
(f) pursuant to an effective registration statement under the Securities Act.
We acknowledge that the Company and the Trustee reserve the right prior to any
offer, sale or other transfer prior to the Resale Restriction Termination Date
of the applicable Notes pursuant to clause (c) or (e) above to require the
delivery of an opinion of counsel, certification and/or other information
satisfactory to the Company and the Trustee.
We understand that the Trustee will not be required to accept for
registration of transfer any Notes acquired by us, except upon presentation of
evidence satisfactory to the Company and the Trustee that the foregoing
restrictions on transfer have been complied with. We further understand that
any Notes purchased by us will be in the form of definitive physical
certificates and that such certificates will bear a legend reflecting the
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substance of paragraph 3 of this letter. We further agree to provide to any
person acquiring any of the Notes from us a notice advising such person that
transfers of such Notes are restricted as stated herein and that certificates
representing such Notes will bear a legend to that effect.
We represent that the Company and the Trustee and others are entitled
to rely upon the truth and accuracy of our acknowledgments, representations and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our acknowledgments, representations or agreements herein cease to be
accurate and complete. You are also irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
We represent to you that we have full power to make the foregoing
acknowledgments, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as fiduciary agent.
As used herein, the terms "offshore transaction," "United States" and
"U.S. person" have the respective meanings given to them in Regulation S under
the Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Dated: __________ TRANSFEREE:
By: _________________________
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EXHIBIT E
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
_______________, ____
Attention: Corporate Trust Administration
Re: TRANSPORTATION MANUFACTURING OPERATIONS, INC. 11 1/4% SENIOR
SUBORDINATED NOTES DUE 2009 (THE "NOTES")
Ladies and Gentlemen:
In connection with our proposed sale of $__________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "SECURITIES ACT"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(a) or Rule 904(a)
of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Defined terms used herein without
definition have the respective meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By: _____________________________
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EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
, among (the "NEW GUARANTOR"), a subsidiary of Transportation
Manufacturing Operations, Inc. (or its successor), a Delaware corporation (the
"COMPANY"), the Guarantors (the "EXISTING GUARANTORS") under the Indenture
referred to below, and IBJ Whitehall Bank & Trust Company, as trustee under the
Indenture referred to below (the "TRUSTEE").
W I T N E S S E T H :
WHEREAS the Company has heretofore executed and delivered to the
Trustee an Indenture (as such may be amended from time to time, the
"Indenture"), dated as of June 16, 1999, providing for the issuance of its
11 1/4% Senior Subordinated Notes due 2009 (the "Notes");
WHEREAS Section 4.21 of the Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all of the Company's obligations under
the Notes pursuant to a Guarantee on the terms and conditions set forth herein;
and
WHEREAS pursuant to Section 8.01 of the Indenture, the Trustee, the
Company and Existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Noteholders as
follows:
1. DEFINITIONS. (a) Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(i) the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture; and (ii) the words
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees,
jointly and severally with all other Guarantors, to Guarantee the Company's
Obligations under the Notes on the terms and subject to the conditions set
forth in Article 10 of the Indenture and to be bound by all other applicable
provisions of the Indenture. From and after the date hereof, the New
Guarantor shall be a Guarantor for all purposes under the Indenture and the
Notes.
3. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF
INDENTURE. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture
shall form a part of the Indenture for all purposes, and every Noteholder
heretofore or hereafter authenticated and delivered shall be bound hereby.
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4. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO 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 SUPPLEMENTAL INDENTURE.
5. TRUSTEE MAKES NO REPRESENTATION. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which are made solely by the Company.
6. MULTIPLE COUNTERPARTS. The parties may sign multiple
counterparts of this Supplemental Indenture. Each signed counterpart shall
be deemed an original, but all of them together represent one and the same
agreement.
7. HEADINGS. The headings of this Supplemental Indenture have
been inserted for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the terms or
provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date and year first
above written.
[NEW GUARANTOR]
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
TRANSPORTATION MANUFACTURING
OPERATIONS, INC.
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
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EXISTING GUARANTORS:
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By: __________________________________
Name:
Title:
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