1
EXHIBIT 4.8
XXXXX Material Handling Company
as obligor
$40,000,000
Subordinated Notes due 2007
INDENTURE
Dated as of July 17, 1998
U.S. TRUST COMPANY OF TEXAS, N.A.,
Trustee
2
INDENTURE, dated as of July 17, 1998, between XXXXX
Material Handling Company, a Delaware corporation (the
"Company"), and U.S. Trust Company of Texas, N.A., as trustee (the "Trustee").
The Company and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Company's Subordinated Notes due 2007.
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. Definitions
"Accounts" shall mean, as to any Person, all of such
Person's now owned and hereafter acquired rights to payment (including
intercompany obligations) for the prior, concurrent or future sale, lease or
other disposition of Inventory or rendition of services, whether or not
evidenced by an instrument or chattel paper and whether or not earned by
performance.
"Acquired Debt" means Indebtedness of a Person existing
at the time such Person is merged with or into the Company or a Restricted
Subsidiary or becomes a Restricted Subsidiary, other than Indebtedness incurred
in connection with, or in contemplation of, such Person merging with or into the
Company or a Restricted Subsidiary or becoming a Restricted Subsidiary;
provided, that Indebtedness of such Person that is redeemed, defeased, retired
or otherwise repaid at the time, or immediately upon consummation, of the
transaction by which such Person is merged with or into the Company or a
Restricted Subsidiary or becomes a Restricted Subsidiary shall not be Acquired
Debt.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise. Notwithstanding the foregoing,
3
neither Initial Purchaser nor any of their respective Affiliates will be deemed
to be Affiliates of the Company.
"Agent" means any Registrar, Paying Agent or
co-registrar.
"Asset Sale" means any direct or indirect (a) transfer
(as hereinafter defined), other than in the ordinary course of business, of any
assets of the Company or any Restricted Subsidiary or (b) issuance of any
Capital Stock of any Restricted Subsidiary, in each case to any Person (other
than the Company or a Restricted Subsidiary and other than directors' qualifying
shares). For purposes of this definition, (i) any series of transfers that are
part of a common plan shall be deemed a single Asset Sale and (ii) the term
"Asset Sale" shall not include any disposition of all or substantially all of
the assets of the Company that is governed under and complies with Article V of
this Indenture.
"Bankruptcy Law" means title 11, U.S. Code or any
similar Federal, state or foreign law for the relief of debtors.
"Board of Directors" means the board of directors or any
duly constituted committee of any corporation or of a corporate general partner
of a partnership and any similar body empowered to direct the affairs of any
other entity.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP, and the amount of such
obligations at any date shall be the capitalized amount of such obligations at
such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person
that is a corporation, any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock, and (ii) with respect
to any other Person, any and all partnership or other equity interests of such
Person.
"Cash Equivalent" means (i) securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America
2
4
is pledged in support thereof), (ii) time deposits and certificates of deposit
and commercial paper issued by the parent corporation of any domestic commercial
bank of recognized standing having capital and surplus in excess of $250,000,000
and commercial paper issued by others rated at least A-2 or the equivalent
thereof by Standard & Poor's Corporation or at least P-2 or the equivalent
thereof by Xxxxx'x Investors Service, Inc. and in each case maturing within one
year after the date of acquisition and (iii) investments in money market funds
substantially all of whose assets comprise securities of the types described in
clauses (i) and (ii) above.
"Certificate of Designation" means the certificate of
designation of the powers, preferences and relative, participating, optional and
other special rights and qualifications, limitations and restrictions thereof
filed by the Company with the Secretary of State of the State of Delaware on
July 16, 1998.
"Change of Control" means (i) the transfer (in one
transaction or a series of transactions) of all or substantially all of the
Company's assets to any Person or group (as such term is used in Section
13(d)(3) of the Exchange Act) other than to one or more Existing Holders, (ii)
the liquidation or dissolution of the Company or the adoption of a plan by the
stockholders of the Company relating to the dissolution or liquidation of the
Company, (iii) the acquisition by any Person or group (as such term is used in
Section 13(d)(3) of the Exchange Act), except for one or more Existing Holders,
of beneficial ownership, directly or indirectly, of more than 50% of the voting
power of the total outstanding Voting Stock of Holdings, (iv) after the
consummation of an initial public offering of any class of common stock of the
Company or Holdings, during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors of the
Company or Holdings (together with any new directors who have been appointed by
CVC, Citicorp N.A., or any Affiliate of CVC or whose nomination for election by
the stockholders of the Company was approved by a vote of at least 66 2/3% of
the directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Company or Holdings, as the case may be, then still in office
or (v) the failure by Holdings to own more than 50% of the voting power of the
total outstanding Voting Stock of the Company.
"Xxxxx Europe" means Xxxxx Material Handling GmbH, a
Wholly Owned Subsidiary.
3
5
"Closing Date" means July 17, 1998.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act, or
if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the TIA, then the
body performing such duties at such time.
"Company" means the party named as such above, until a
successor replaces such Person in accordance with the terms of this Indenture,
and thereafter means such successor.
"Company Order" means a written request or order signed
in the name of the Company by its Chairman of the Board, President or Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary and delivered to the Trustee.
"Consolidated Net Income" means, with respect to any
Person (the referent Person) for any period, the aggregate of the Net Income of
such Person and its subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP; provided, that (i) the Net Income of any Person
(including, without limitation, any Unrestricted Subsidiary) that is not a
Wholly Owned Subsidiary or that is accounted for by the equity method of
accounting will be included in calculating the referent Person's Consolidated
Net Income only to the extent of the amount of dividends or distributions paid
during such period to the referent Person or a Wholly Owned Subsidiary of the
referent Person, (ii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition will
be excluded, and (iii) the Net Income of any Subsidiary will be excluded to the
extent that declarations of dividends or similar distributions by that
Subsidiary of such Net Income are not at the time permitted, directly or
indirectly, by operation of the terms of its organization documents or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary or its owners.
"Consolidated Net Worth" means, with respect to any
Person, the total stockholders' equity of such Person determined on a
consolidated basis in accordance with GAAP, adjusted to exclude (to the extent
included in calculating such equity), (i) the amount of any such stockholders'
equity attributable to Disqualified Capital Stock of such Person and its
consolidated subsidiaries, and (ii)
4
6
all upward revaluations and other write-ups in the book value of any asset of
such person or a consolidated subsidiary of such person subsequent to the
Closing Date, and (iii) all Investments in persons that are not consolidated
Restricted Subsidiaries.
"Corporate Trust Office" shall be at the address of the
Trustee specified in Section 11.2 or such other address as the Trustee may
specify by notice to the Company.
"Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
"CVC" means Citicorp Venture Capital Ltd.
"Default" means any event that is, or after notice or
the passage of time or both would be, an Event of Default.
"Designated Senior Indebtedness" means (i) Indebtedness
evidenced by (A) the Senior Notes and (B) the Revolving Credit Facility if such
Indebtedness constitutes Senior Indebtedness, irrespective of amount, and (ii)
any other Senior Indebtedness issued under a credit agreement or other credit
facility (x) in an aggregate outstanding principal amount of at least
$50,000,000 (or, in the case of any revolving credit agreement or other
committed credit facility, having an aggregate commitment of at least
$50,000,000) and (y) that is specifically designated by the Company in the
instrument creating or evidencing such Senior Indebtedness as "Designated Senior
Indebtedness."
"Disqualified Stock" means that portion of any Equity
Interests that (i) either by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable) is or upon the
happening of an event would be required to be redeemed or repurchased prior to
the final stated maturity of the Notes or is redeemable at the option of the
holder thereof at any time prior to such final stated maturity or (ii) is
convertible into or exchangeable at the option of the issuer thereof or any
other Person for debt securities.
"DTC" means The Depository Trust Company.
5
7
"Equity Interests" means Capital Stock or warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Existing Holders" shall mean (i) CVC, (ii) Citicorp
N.A. or any other Affiliate of CVC, (iii) any officer, employee or director of
CVC, (iv) the Management Investors and (v) in the case of any natural Person
specified in the foregoing clauses, any spouse or lineal descendant (including
by adoption) of such Person; provided, that in no event shall the Persons
specified in clauses (iii) through (v) be deemed "Existing Holders" with respect
to more than 30% of the voting power of the total outstanding Voting Stock of
the Company or Holdings.
"GAAP" means generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession, and in the rules and regulations of the Commission, that
are in effect on the date of this Indenture.
"German Subsidiary Facilities" means one or more
revolving credit facilities of Xxxxx Europe, as the same may be amended,
modified, renewed, refunded, replaced or refinanced from time to time including
(i) any related notes, letters of credit, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case
amended, modified, renewed, refunded, replaced or refinanced from time to time,
and (ii) any notes, guarantees, collateral documents, instruments and agreements
executed in connection with any such amendment, modification, renewal,
refunding, replacement or refinancing.
"Holder" means a Person in whose name a Note is
registered.
"Holdings" means CMH Holdings Corporation, the holder of
all of the outstanding shares of Capital Stock of the Company.
"Indebtedness" of any Person means (without duplication)
(1) all liabilities and obligations, contingent or otherwise, of such Person (a)
in respect of
6
8
borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof), (b) evidenced by bonds,
debentures, notes or other similar instruments, (c) representing the deferred
purchase price of property or services (other than (i) non interest bearing
obligations and (ii) liabilities incurred in the ordinary course of business
which are not more than 90 days past due), (d) created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) as lessee under capitalized leases, (f) under
bankers' acceptance and letter of credit facilities, (g) to purchase, redeem,
retire, defease or otherwise acquire for value any Disqualified Stock, or (h) in
respect of Hedging Obligations, (2) all liabilities and obligations of others of
the type described in clause (1), above, that are Guaranteed by such Person, and
(3) all liabilities and obligations of others of the type described in clause
(1), above, that are secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights) owned by
such Person; provided, that the amount of such Indebtedness shall (to the extent
such Person has not assumed or become liable for the payment of such
Indebtedness in full) be the lesser of (x) the fair market value of such
property at the time of determination and (y) the amount of such Indebtedness.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Initial Purchasers" means Xxxxxxxxx & Company, Inc. and
Bear, Xxxxxxx & Co. Inc.
"Inventory" shall mean, as to any Person, all now owned
and hereafter acquired goods including, without limitation, parts and goods in
the possession of such Person or of a bailee or other Person for sale, storage,
transit, processing, use or otherwise, and supplies, finished goods, parts and
components, that are: (a) held for sale or lease, (b) furnished or to be
furnished under contracts of services, or (c) raw materials, work-in-process or
materials used or consumed in its business.
7
9
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of loans, Guarantees, advances or capital contributions (excluding (i)
commission, travel and similar advances to officers and employees of such Person
made in the ordinary course of business and (ii) bona fide accounts receivable
arising from the sale of goods or services in the ordinary course of business
consistent with past practice), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities, and any
other items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"Legal Holiday" means a Saturday, a Sunday or a day on
which banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed.
"Lien" means any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind, whether or not filed, recorded or
otherwise perfected under applicable law (including any conditional sale or
other title retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"Liquidated Damages" has the meaning set out in the
Registration Rights Agreement.
"Management Investors" means the individuals listed as
of [November 27, 1996] on Schedule I of the Amended and Restated Securities
Purchase and Holders Agreement, dated January 31, 1997, by and among Holdings,
CVC, Xxxxxx Xxxxxx and the Management Investors.
"Material Subsidiary" means any Subsidiary (a) that is a
"Significant Subsidiary" of the Company as defined in Rule 1-02 of Regulation
S-X promulgated by the Commission or (b) is otherwise material to the business
of the Company.
"Net Income" means, with respect to any Person for any
period, the net income (loss) of such Person for such period, determined in
accordance with GAAP, excluding any gain or loss, together with any related
provision for taxes on such gain or loss, realized in connection with any Asset
Sales and dispositions
8
10
pursuant to sale and leaseback transactions, and excluding any extraordinary
gain or loss, together with any related provision for taxes on such gain or
loss.
"Net Proceeds" means the aggregate proceeds received in
the form of cash or Cash Equivalents in respect of any Asset Sale (including
payments in respect of deferred payment obligations when received), net of (a)
the reasonable and customary direct out-of-pocket costs relating to such Asset
Sale (including, without limitation, legal, accounting and investment banking
fees and sales commissions), other than any such costs payable to an Affiliate
of the Company, (b) taxes actually payable directly as a result of such Asset
Sale (after taking into account any available tax credits or deductions and any
tax sharing arrangements), (c) amounts required to be applied to the permanent
repayment of Indebtedness in connection with such Asset Sale, and (d)
appropriate amounts provided as a reserve by the Company or any Restricted
Subsidiary, in accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by the Company or such Restricted Subsidiary, as
the case may be, after such Asset Sale, including, without limitation, pension
and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
arising from such Asset Sale.
"Notes" means the Company's Subordinated Notes due 2007,
as authenticated and issued under this Indenture.
"Obligations" means, with respect to any Indebtedness,
any principal, interest, penalties, fees, indemnifications, reimbursements,
damages and other obligations and liabilities of the Company under such
Indebtedness.
"Officers" means the Chairman of the Board, the
President, the Chief Financial Officer, Chief Operating Officer, the Treasurer,
any Assistant Treasurer, Controller, Secretary, any Assistant Secretary or any
Vice-President of the Company.
"Officers' Certificate" means a certificate signed on
behalf of the Company by two Officers of the Company, one of whom must be the
President, Chief Financial Officer, Treasurer, Controller or a Vice President of
the Company.
"Opinion of Counsel" means an opinion from legal counsel
who is reasonably acceptable to the Trustee. Such counsel may be an employee of
or counsel to the Company, any Subsidiary of the Company or the Trustee.
9
11
"Permitted Investments" means (a) Investments in the
Company or any Wholly Owned Subsidiary (including without limitation, Guarantees
of Indebtedness of any such Person), (b) Investments in Cash Equivalents, (c)
Investments in a Person, if as a result of such Investment (i) such Person
becomes a Wholly Owned Subsidiary or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Wholly Owned Subsidiary, (d)
Floor Plan Guarantees permitted to be incurred in compliance with Section 4.9 of
this Indenture, (e) Hedging Obligations, (f) Investments in securities of trade
creditors or customers received pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of such trade creditors or
customers and (g) Investments as a result of consideration received in
connection with an Asset Sale made in compliance with Section 4.10 of this
Indenture.
"Permitted Liens" means (i) Liens in favor of the
Company and/or its Restricted Subsidiaries other than with respect to
intercompany Indebtedness, (ii) Liens on property of a Person existing at the
time such Person is acquired by, merged into or consolidated with the Company or
any Restricted Subsidiary, provided, that such Liens were not created in
contemplation of such acquisition and do not extend to assets other than those
subject to such Liens immediately prior to such acquisition, (iii) Liens on
property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary, provided, that such Liens were not created in
contemplation of such acquisition and do not extend to assets other than those
subject to such Liens immediately prior to such acquisition, (iv) Liens incurred
in the ordinary course of business in respect of Hedging Obligations and Floor
Plan Guarantees, (v) Liens to secure Indebtedness for borrowed money of a
Subsidiary in favor of the Company or a Wholly Owned Subsidiary, (vi) Liens
incurred in the ordinary course of business to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations (exclusive of obligations constituting Indebtedness) of a like
nature, (vii) Liens existing or created on the date of this Indenture, (viii)
Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested or remedied in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided, that any
reserve or other appropriate provision as may be required in conformity with
GAAP has been made therefor, (ix) Liens arising by reason of any judgment,
decree or order of any court with respect to which the Company or any of its
Restricted Subsidiaries is then in good faith prosecuting an appeal or other
proceedings for review, the existence of which
10
12
judgment, order or decree is not an Event of Default under this Indenture, (x)
encumbrances consisting of zoning restrictions, survey exceptions, utility
easements, licenses, rights of way, easements of ingress or egress over property
of the Company or any of its Restricted Subsidiaries, rights or restrictions of
record on the use of real property, minor defects in title, landlord's and
lessor's liens under leases on property located on the premises rented,
mechanics' liens, vendors' liens, and similar encumbrances, rights or
restrictions on personal or real property, in each case not interfering in any
material respect with the ordinary conduct of the business of the Company or any
of its Restricted Subsidiaries, (xi) Liens incidental to the conduct of business
or the ownership of properties incurred in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, bids, and government
contracts and leases and subleases, (xii) Liens for any interest or title of a
lessor under any Capitalized Lease Obligation permitted to be incurred under
this Indenture; provided, that such Liens do not extend to any property or asset
that is not leased property subject to such Capitalized Lease Obligation, (xiii)
any extension, renewal, or replacement (or successive extensions, renewals or
replacements), in whole or in part, of Liens described in clauses (i) through
(xii) above and (xiv) Liens in addition to the foregoing, which in the
aggregate, are secured by assets with a fair market value not in excess of
$100,000 at any time.
"Permitted Transactions" means bona fide purchases and
sales of Inventory or of machining, assembly, testing and fabrication services,
in any such case made in the ordinary course of business; provided, that such
transactions are conducted in good faith and on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction with an unrelated Person.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof, or any
other entity.
"Public Equity Offering" means a bona fide underwritten
public offering of Qualified Capital Stock of Holdings or the Company, pursuant
to a registration statement filed with and declared effective by the Commission
in accordance with the Securities Act; provided, that in the event of a Public
Equity Offering by Holdings, Holdings contributes to the capital of the Company
the portion of the net cash proceeds of such Public Equity Offering necessary to
pay
11
13
the aggregate redemption price, plus accrued and unpaid interest, if any, to
the redemption date of the Notes to be redeemed pursuant to Section 3.7(b) of
this Indenture.
"Purchase Money Liens" means Liens to secure or securing
Purchase Money Obligations permitted to be incurred under this Indenture.
"Purchase Money Obligations" means Indebtedness
representing, or incurred to finance, the cost (i) of acquiring or improving any
assets and (ii) of construction or build-out of manufacturing, distribution or
administrative facilities (including Purchase Money Obligations of any other
Person at the time such other Person is merged with or into or is otherwise
acquired by the Company), provided, that (a) the principal amount of such
Indebtedness does not exceed 100% of such cost, including construction charges,
(b) any Lien securing such Indebtedness does not extend to or cover any other
asset or property other than the asset or property being so acquired or improved
and (c) such Indebtedness is incurred, and any Liens with respect thereto are
granted, within 180 days of the acquisition or improvement of such property or
asset.
"Qualified Capital Stock" means, with respect to any
Person, Capital Stock of such Person other than Disqualified Capital Stock.
"Responsible Officer" when used with respect to the
Trustee, means any officer within the corporate trust department of the Trustee
located at the Corporate Trust Office (or any successor group of the Trustee) or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the designated officers, and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Investment" means any Investment other than
a Permitted Investment. The aggregate amount of each Investment constituting a
Restricted Payment since the date of this Indenture shall be reduced by the
aggregate after-tax amount of all payments made to the Company and its
Restricted Subsidiaries with respect to such Investments; provided, that (a) the
maximum amount of such payments so applied shall not exceed the original amount
of such Investment and (b) such payments shall be excluded from the calculations
contemplated by clauses (w) through (z) under Section 4.7(a)(iv)(3) of this
Indenture.
12
14
"Restricted Subsidiary" means a Subsidiary other than an
Unrestricted Subsidiary.
"Revolving Credit Facility" means the Loan and Security
Agreement, entered into on November 27, 1996 between the Company and the lenders
named therein as the same may be amended, modified, renewed, refunded, replaced
or refinanced from time to time, including (i) any related notes, letters of
credit, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced from time to time, and (ii) any notes, guarantees,
collateral documents, instruments and agreements executed in connection with
such amendment, modification, renewal, refunding, replacement or refinancing.
"Rule 144A" means Rule 144A under the Securities Act, as
such Rule may be amended from time to time, or under any similar rule or
regulation hereafter adopted by the Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Indebtedness" means all Obligations (including
any interest accruing subsequent to the filing of a petition of bankruptcy at
the rate provided for in the documentation with respect thereto, whether or not
such interest is allowed claim under applicable law) on any Indebtedness of the
Company, whether outstanding on the date of issuance of the Senior Notes or
thereafter created, incurred or assumed, (a) in respect of borrowed money or (b)
evidenced by notes, debentures, bonds or other similar instruments, in each case
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is expressly provided that such Obligations are pari
passu, subordinated or junior in right of payment to the Notes; provided,
however, that Senior Indebtedness shall not be deemed to include: (1) any
Obligation of the Company to any Affiliate of the Company, (2) any liability for
federal, state, local or other taxes owed or owing by the Company, (3) any
accounts payable or other liability to trade creditors arising in the ordinary
course of business (including guarantees thereof or instruments evidencing such
liabilities), (4) any Indebtedness, guarantee or Obligation of the Company that
is contractually subordinated or junior in any respect to any other
Indebtedness, guarantee or Obligation of the Company, or (5) any Indebtedness to
the extent the same is incurred in violation of this Indenture.
13
15
"Senior Notes" means the $150,000,000 aggregate
principal amount of 10 3/4% Senior Notes due 2006 (Series A, B and C) of the
Company outstanding on the Closing Date and indebtedness issued in exchange
therefor.
"Senior Notes Indenture" means the indenture, dated July
17, 1998, among the Company, the Guarantors named therein and United States
Trust Company of New York, as in effect on the Closing Date..
"Senior Preferred Stock" means the Series A and Series B
Senior Exchangeable Preferred Stock due 2007 of the Company.
"subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Voting Stock thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
subsidiaries of that Person or a combination thereof and (ii) any partnership in
which such Person or any of its subsidiaries is a general partner.
"Subsidiary" means any subsidiary of the Company.
"Tax Sharing Agreement" means the Tax Sharing Agreement,
dated as of November 27, 1996 , by and between the Company and Holdings as in
effect on the date hereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb), as amended, as in effect on the date hereof until
such time as this Indenture is qualified under the TIA, and thereafter as in
effect on the date on which this Indenture is qualified under the TIA.
"transfer" means any sale, assignment, transfer, lease,
conveyance, or other disposition (including, without limitation, by way of
merger or consolidation).
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary that has
been designated by the Company (by written notice to the Trustee as provided
below) as an Unrestricted Subsidiary; provided, that a Subsidiary may not be
designated as
14
16
an "Unrestricted Subsidiary" unless (a) such Subsidiary does not own any Capital
Stock of, or own or hold any Lien on any property of, the Company or any
Restricted Subsidiary (other than such Subsidiary), (b) neither immediately
prior thereto nor after giving pro forma effect to such designation, would there
exist a Default or Event of Default, (c) immediately after giving effect to such
designation on a pro forma basis, the Company could incur at least $1.00 of
Indebtedness pursuant to Section 4.9(a) of this Indenture and (d) the creditors
of such Subsidiary have no direct or indirect recourse (including, without
limitation, recourse with respect to the payment of principal or interest on
Indebtedness of such Subsidiary) to the assets of the Company or of a Restricted
Subsidiary (other than such Subsidiary). The Board of Directors of the Company
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if
(i) no Default or Event of Default is existing or will occur as a consequence
thereof and (ii) immediately after giving effect to such designation, on a pro
forma basis, the Company could incur at least $1.00 of Indebtedness pursuant to
Section 4.9(a) of this Indenture. Each such designation shall be evidenced by
filing with the Trustee a certified copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions. The Company shall be deemed
to make an Investment in each Subsidiary designated as an "Unrestricted
Subsidiary" immediately following such designation in an amount equal to the
Investment in such Subsidiary and its subsidiaries immediately prior to such
designation; provided, that if such Subsidiary is subsequently redesignated as a
Restricted Subsidiary, the amount of such Investment shall be deemed to be
reduced (but not below zero) by the fair market value of the net consolidated
assets of such Subsidiary on the date of such redesignation.
"U.S. Government Obligations" means direct obligations
of the United States of America, or any agency or instrumentality thereof for
the payment of which the full faith and credit of the United States of America
is pledged.
"Voting Stock" means, with respect to any Person, (i)
one or more classes of the Capital Stock of such Person having general voting
power to elect at least a majority of the board of directors, managers or
trustees of such Person (irrespective of whether or not at the time Capital
Stock of any other class or classes have or might have voting power by reason of
the happening of any contingency) and (ii) any Capital Stock of such Person
convertible or exchangeable without restriction at the option of the holder
thereof into Capital Stock of such Person described in clause (i) above.
15
17
"Wholly Owned Subsidiary" means a Restricted Subsidiary
all the Capital Stock of which (other than directors' qualifying shares) is
owned by the Company or one or more Wholly Owned Subsidiaries.
Section 1.2. Other Definitions
Defined in
Term Section
---- -------
"Affiliate Transaction"............................................................... 4.11
"Change of Control Offer"............................................................. 4.14
"Change of Control Payment"........................................................... 4.14
"Change of Control Payment Date"...................................................... 4.14
"Definitive Notes".................................................................... 2.1
"Event of Default".................................................................... 6.1
"Excess Proceeds"..................................................................... 4.10
"Excess Proceeds Offer"............................................................... 4.10
"Excess Proceeds Offer Period"........................................................ 4.10
"Excess Proceeds Payment Date"........................................................ 4.10
"Global Note"......................................................................... 2.1
"Hedging Obligations"................................................................. 4.9(b)
"Paying Agent"........................................................................ 2.3
"Payment Default"..................................................................... 10.2(a)
"Payment Notice"...................................................................... 10.2(b)
"Purchase Amount"..................................................................... 4.10
"Purchase Money Indebtedness"......................................................... 4.9(b)
"Refinance"........................................................................... 4.9(b)
"Refinancing Indebtedness"............................................................ 4.9(b)
"Registrar"........................................................................... 2.3
"Restricted Payments"................................................................. 4.7
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the
following meanings:
16
18
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company and any successor obligor
upon the Notes.
All other terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by Commission
rule under the TIA have the meanings so assigned to them.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE NOTES
Section 2.1. Form and Dating
The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A attached hereto,
the terms of which are
17
19
incorporated in and made a part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject or usage. Each Note shall be dated the date of its
authentication. The Notes, other than Notes issued as payment pursuant to
Section 4.1(b), shall be issued in denominations of $1,000 and integral
multiples thereof.
Section 2.2. Execution and Authentication
Two Officers shall sign the Notes for the Company by
manual or facsimile signature. If an Officer whose signature is on a Note no
longer holds that office at the time the Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature of the
Trustee shall be conclusive evidence that the Note has been authenticated under
this Indenture. The form of Trustee's certificate of authentication to be borne
by the Notes shall be substantially as set forth in Exhibit A attached hereto.
The Trustee shall, upon a Company Order, authenticate
for original issue up to $20,000,000 aggregate principal amount of the Notes.
The aggregate principal amount of Notes outstanding at any time may not exceed
$40,000,000 except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authenticating by the
Trustee includes authenticating by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
The Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name any Note is registered as the
owner of such Note for the purpose of receiving payment of principal of and
(subject to the provisions of this Indenture and the Notes with respect to
record dates) interest on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Section 2.3. Registrar, Paying Agent and Depository
18
20
The Company shall maintain (i) an office or agency where
Notes may be presented for registration of transfer or for exchange
("Registrar") and (ii) an office or agency where Notes may be presented for
payment ("Paying Agent"). The Company initially appoints the Trustee as
Registrar and Paying Agent. The Registrar shall keep a register of the Notes and
of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee of the name and
address of any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may act as Paying
Agent or Registrar, except that for purposes of Articles Three and Eight and
Sections 4.1, 4.10 and 4.14 neither the Company nor any of its Subsidiaries
shall act as Paying Agent.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which
shall incorporate the provisions of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such Agent.
Section 2.4. Paying Agent to Hold Money in Trust
The Company shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent shall hold in trust for
the benefit of the Holders or the Trustee all money held by the Paying Agent for
the payment of principal, premium, if any, or interest on the Notes and shall
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the
Company) shall have no further liability for the money delivered to the Trustee.
If the Company or a Subsidiary of the Company acts as Paying Agent (subject to
Section 2.3), it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent.
Section 2.5. Holder Lists
19
21
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it
of the names and addresses of all Holders and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders, including the aggregate principal amount thereof, and
the Company shall otherwise comply with TIA Section 312(a).
Section 2.6. Transfer and Exchange
When Notes are presented to the Registrar with a request
to register the transfer of such Notes or to exchange such Notes for an equal
principal amount of Notes of other denominations, the Registrar shall register
the transfer or make the exchange as requested if its requirements for such
transaction are met; provided, however, that the Notes surrendered for transfer
or exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing. To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Notes at the Registrar's request. No service charge
shall be made for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or transfer
(without transfer to another person) pursuant to Sections 2.10, 3.7, 4.10, 4.14
or 9.5). The Registrar shall not be required to register the transfer 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.
Section 2.7. Replacement Notes
If any mutilated Note is surrendered to the Trustee, or
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee
shall authenticate a replace-
20
22
ment Note if the Trustee's requirements for replacements of Notes are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent or any authenticating agent from any
loss that any of them may suffer if a Note is replaced. The Company or the
Trustee may charge for its expenses in replacing a Note.
Every replacement Note is an obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.8. Outstanding Notes
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, and those described in this Section as not outstanding.
If a Note is replaced pursuant to Section 2.7 hereof,
the replaced Note ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
bona fide purchaser.
If the principal amount of any Note is considered paid
under Section 4.1 hereof, it ceases to be outstanding and
interest on it ceases to accrue.
Subject to Section 2.9 hereof, a Note does not cease to
be outstanding because the Company or an Affiliate of the Company holds the
Note.
Section 2.9. Treasury Notes
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company or any Affiliate of the Company shall be considered
as though not outstanding, except that for purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that a Trustee knows to be so owned shall be considered as not
outstanding.
Section 2.10. Temporary Notes.
21
23
Pending the preparation of definitive Notes, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes that are printed, lithographed, typewritten, mimeographed or
otherwise reproduced, in any authorized denomination, substantially of the tenor
of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as conclusively evidenced by their
execution of such Notes.
If temporary Notes are issued, the Company shall cause
Definitive Notes to be prepared without unreasonable delay. The definitive Notes
shall be printed, lithographed or engraved, or provided by any combination
thereof, or in any other manner permitted by the rules and regulations of any
principal national securities exchange, if any, on which the Notes are listed,
all as determined by the Officers executing such definitive Notes. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
maintained by the Company for such purpose pursuant to Section 4.2 hereof,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute, and the Trustee shall authenticate
and deliver, in exchange therefor the same aggregate principal amount of
definitive Notes of authorized denominations. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes.
Section 2.11. Cancellation
The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall retain or
destroy cancelled Notes in accordance with its normal practices (subject to the
record retention requirement of the Exchange Act) unless the Company directs
them to be returned to it. The Company may not issue new Notes to replace Notes
that have been redeemed or paid or that have been delivered to the Trustee for
cancellation. All cancelled Notes held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company unless by a written
order, signed by one Officer of the Company, the Company shall direct that
cancelled Notes be returned to it.
22
24
Section 2.12. Defaulted Interest
If the Company defaults in a payment of interest on the
Notes, it shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, which date shall be at the
earliest practicable date but in all events at least five Business Days prior to
the payment date, in each case at the rate provided in the Notes and in Section
4.1 hereof. The Company shall, with the consent of the Trustee, fix or cause to
be fixed each such special record date and payment date. At least 15 days before
the special record date, the Company (or the Trustee, in the name of and at the
expense of the Company) shall mail to the Holders a notice that states the
special record date, the related payment date and the amount of such interest to
be paid.
ARTICLE 3
REDEMPTION
Section 3.1. Notices to Trustee
If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.7 hereof, it
shall furnish to the Trustee, at least 45 days but not more than 60 days before
a redemption date, an Officers' Certificate setting forth (i) the clause of
Section 3.7 pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption
price.
Section 3.2. Selection of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the
Trustee shall select the Notes to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed, or, if the Notes are not so listed, pro rata, by lot or by
such method as the Trustee deems to be fair and reasonable.
The Trustee shall promptly notify the Company in writing
of the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of
23
25
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.3. Notice of Redemption
At least 30 days but not more than 60 days before a
redemption date, the Company shall mail a notice of
redemption by first class mail to each Holder whose Notes are to be redeemed at
such Holder's registered address.
The notice shall identify the Notes to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part only, the
portion of the principal amount of such Note to be redeemed
and that, after the redemption date, upon cancellation of the original Note, a
new Note or Notes in principal amount equal to the unredeemed portion shall be
issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such
redemption payment, interest on Notes or portions of Notes
called for redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or the section of
this Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(8) the CUSIP number of the Notes to be redeemed.
At the Company's request, the Trustee shall give the
notice of redemption in the name of the Company and at its expense; provided
that the Company shall deliver to the Trustee, at least 45 days (unless a
shorter period is acceptable to the Trustee) prior to the redemption date, an
Officers' Certificate
24
26
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph.
Section 3.4. Effect of Notice of Redemption
Once notice of redemption has been mailed to the Holders
in accordance with Section 3.3 herein, Notes called for
redemption become due and payable on the redemption date at the redemption
price. At any time prior to the mailing of a notice of redemption to the Holders
pursuant to Section 3.3, the Company may withdraw, revoke or rescind any notice
of redemption delivered to the Trustee without any continuing obligation to
redeem the Notes as contemplated by such notice of redemption.
Section 3.5. Deposit of Redemption Price
On or before the redemption date, the Company shall
deposit with the Trustee (to the extent not already held by
the Trustee) or with the Paying Agent money in immediately available funds
sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date. The Trustee or the Paying Agent shall return to the
Company any money deposited with the Trustee or the Paying Agent by the Company
in excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.
Interest on the Notes to be redeemed shall cease to
accrue on the applicable redemption date, whether or not such Notes are
presented for payment, if the Company makes or deposits the redemption payment
in accordance with this Section 3.5. If any Note called for redemption shall not
be paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case at
the rate provided in the Notes.
Section 3.6. Notes Redeemed in Part
Upon surrender of a Note that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for
the Holder at the expense of the Company a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
25
27
Section 3.7. Optional Redemption
(a) Except as set forth in Section 3.7(b), the Notes are not
redeemable at the Company's option prior to July 15, 2003. Thereafter, the Notes
will be subject to redemption at the option of the Company, in whole or in part,
at the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest thereon, if any, to the applicable
redemption date, if redeemed during the 12-month period beginning on July 15 of
the years indicated below:
Year .................................... Percentage
---- ----------
2003 .................................... 106.500%
2004 .................................... 104.333
2005 .................................... 102.167
2006 and thereafter............................. 100.000
(b) At any time or from time to time prior to July 15, 2003, the
Company may, at its option, redeem up to one-third of the aggregate principal
amount of the Notes issued on or after the Closing Date, at a redemption price
of 115% of the principal amount thereof, plus accrued and unpaid interest, if
any, to the applicable redemption date, with the net cash proceeds of one or
more Public Equity Offerings; provided, that (a) such redemption shall occur
within 90 days of the date of closing of such public offering and (b) at least
two-thirds of the aggregate principal amount of the Notes issued on or after the
Closing Date remains outstanding immediately after giving effect to each such
redemption.
(c) The restrictions on optional redemptions set forth in this
Section 3.7 shall not limit the Company's right to make open market purchases of
the Notes from time to time; provided, that neither the Company nor any of its
Subsidiaries may use the proceeds of a Public Equity Offering made prior to July
15, 2003 to make open market purchases of the Notes.
ARTICLE 4
COVENANTS
Section 4.1. Payment of Notes
26
28
(a) The Company shall pay the principal and premium, if any, of, and
interest on, the Notes on the dates and in the manner provided in the Notes.
Subject to Section 4.1(b), principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, other than the Company or a
Subsidiary of the Company, holds on or before that date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due. Such Paying Agent shall
return to the Company, no later than three Business Days following the date of
payment, any money that exceeds such amount of principal, premium, if any, and
interest then due and payable on the Notes.
The Company shall pay interest (including post-petition
interest) on overdue principal at the rate equal to 1% per annum in excess of
the then applicable interest rate on the Notes to the extent lawful; it shall
pay interest (including post-petition interest) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to the
extent lawful.
(b) On or before July 15, 2003, the Company may, at its option, pay
interest in additional Notes having an aggregate principal amount equal to the
amount of such interest. The Company shall notify the Trustee on or prior to the
Record Date of its election to so pay such interest in additional Notes. If the
Company elects to pay interest in additional Notes, it shall pay such in
additional Notes to the Holders on a pro rata basis. Additional Notes to be
issued pursuant to this section may be issued in principal amounts of less than
$1,000. All Notes owned by any one Holder will be aggregated for the purpose of
determining the amount of additional Notes to be issued pursuant to this
section. Any additional Notes so issued in payment of interest shall be dated as
of the applicable interest payment date, and are additional obligations of the
Company and entitled to the benefits of this Indenture.
Section 4.2. Maintenance of Office or Agency
The Company shall maintain an office or agency (which
may be an office of the Trustee, Registrar or co-registrar) in the Borough of
Manhattan, the City of New York where Notes may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required
27
29
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency for
such purposes. The Company shall give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the Corporate Trust Office
of the Trustee as one such office or agency of the Company in accordance with
Section 2.3.
Section 4.3. Reports
(a) The Company shall file with the Trustee, within 15 days after
the time of filing with the Commission, copies of the reports, information and
other documents (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
If the Company is not subject to the requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Commission and the Trustee all
such reports, information and other documents as it would be required to file if
it were subject to the requirements of Section 13 or 15(d) of the Exchange Act;
provided, that the Company shall not be in default of the provisions of this
Section 4.3 for any failure to file reports with the Commission solely by
refusal by the Commission to accept the same for filing. The Company shall
deliver (or cause the Trustee to deliver) copies of all reports, information and
documents required to be filed with the Trustee pursuant to this Section 4.3 to
the Holders at their addresses appearing in the register of Notes maintained by
the Registrar. The Company shall also comply with the provisions of TIA Section
314(a).
(b) If the Company is required to furnish annual, quarterly or
current reports to its stockholders pursuant to the Exchange Act, the Company
shall cause any annual, quarterly, current or other financial report furnished
by it generally to its stockholders to be filed with the Trustee and mailed to
the Holders at their addresses appearing in the register of Notes maintained by
the Registrar. If the
28
30
Company is not required to furnish annual, quarterly or current reports to its
stockholders pursuant to the Exchange Act, the Company shall cause the financial
statements of the Company and its consolidated Subsidiaries (and similar
financial statements for all unconsolidated Subsidiaries, if any), including any
notes thereto (and, with respect to annual reports, an auditors' report by an
accounting firm of established national reputation), and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
comparable to that which would have been required to appear in annual or
quarterly reports filed under Section 13 or 15(d) of the Exchange Act to be so
filed with the Trustee and mailed to the Holders promptly, but in any event,
within 90 days after the end of each of the fiscal years of the Company and
within 45 days after the end of each of the first three quarters of each such
fiscal year.
(c) So long as is required for an offer or sale of the Notes to
qualify for an exemption under Rule 144A, the Company shall, upon request,
provide the information required by clause (d)(4) thereunder to each Holder and
to each prospective purchaser of Notes identified by any Holder of Restricted
Securities.
Section 4.4. Compliance Certificate
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, an Officers' Certificate (provided, however, that
one of the signatories to such Officers' Certificate shall be the Company's
principal executive officer, principal financial officer or principal accounting
officer) stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determine whether each has
kept, observed, performed and fulfilled its obligations under this Indenture,
and further stating, as to each such Officer signing such certificate, that to
the best of his knowledge each of the Company and its Subsidiaries has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions hereof or thereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he may have knowledge and what action each is taking or proposes to
take with respect thereto).
(b) The year-end financial statements delivered pursuant to Section
4.3 above shall be accompanied by a written statement of the independent public
accountants of the Company (which shall be a firm of established national
reputa-
29
31
tion reasonably satisfactory to the Trustee) that in making the examination
necessary for certification of such financial statements nothing has come to
their attention which would lead them to believe that either the Company or any
of its Subsidiaries has violated any provisions of this Indenture or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) So long as any of the Notes are outstanding, the Company shall
deliver to the Trustee forthwith upon any Officer becoming aware of (i) any
Default or Event of Default or (ii) any event of default under any mortgage,
indenture or instrument referred to in Section 6.1(5) hereof, an Officers'
Certificate specifying such Default, Event of Default or other event of default
and what action the Company is taking or proposes to take with respect thereto.
Section 4.5. Taxes
The Company shall, and shall cause its Subsidiaries to,
file all tax returns required to be filed and to pay prior to delinquency all
material taxes, assessments and governmental levies except as contested in good
faith and by appropriate proceedings and for which reserves have been
established in accordance with GAAP.
Section 4.6. Stay, Extension and Usury Laws
The Company covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it shall not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the
Trustee but shall suffer and permit the execution of every such power as though
no such law has been enacted.
Section 4.7. Limitation on Restricted Payments
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
30
32
(i) declare or pay any dividend or make any distribution
on account of any Equity Interests of the Company or any of its
Subsidiaries (other than (x) dividends or distributions payable in
Equity Interests (other than Disqualified Stock) of the Company or
(y) dividends or distributions payable to the Company or any Wholly
Owned Subsidiary),
(ii) purchase, redeem or otherwise acquire or retire for
value any Equity Interest of the Company, any Subsidiary or any
other Affiliate of the Company (other than any such Equity Interest
owned by the Company or any Wholly Owned Subsidiary),
(iii) make any principal payment on, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness of the Company that is subordinated in right of payment
to the Notes, as the case may be, prior to any scheduled principal
payment, sinking fund payment or other payment at the stated
maturity thereof, or
(iv) make any Restricted Investment (all such payments
and other actions set forth in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments") unless, at the
time of such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or
would occur as a consequence thereof,
(2) immediately after giving effect thereto on a pro forma basis,
the Company could incur at least $1.00 of additional Indebtedness under
Section 4.9(a) of the Senior Notes Indenture, and
(3) such Restricted Payment (the value of any such payment, if other
than cash, being determined in good faith by the Board of Directors and
evidenced by a resolution set forth in an Officers' Certificate delivered
to the Trustee), together with the aggregate of all other Restricted
Payments made after the date of this Indenture (including Restricted
Payments permitted by clauses (i) and (ii) of Section 4.7(b) and excluding
Restricted Payments permitted by the other clauses therein), is less than
the sum of (w) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the first
quarter commencing immediately after the date of this Indenture to the end
of the Company's most recently ended fiscal quarter for which internal
financial
31
33
statements are available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, 100% of such deficit),
plus (x) 100% of the aggregate net cash proceeds (or of the net cash proceeds
received upon the conversion of non-cash proceeds into cash) received by the
Company from the issuance or sale, other than to a Subsidiary, of Equity
Interests of the Company (other than Disqualified Stock) after the date of this
Indenture and on or prior to the time of such Restricted Payment, plus (y) 100%
of the aggregate net cash proceeds (or of the net cash proceeds received upon
the conversion of non-cash proceeds into cash) received by the Company from the
issuance or sale, other than to a Subsidiary, of any convertible or exchangeable
debt security of the Company that has been converted or exchanged into Equity
Interests of the Company (other than Disqualified Stock) pursuant to the terms
thereof after the date of this Indenture and on or prior to the time of such
Restricted Payment (including any additional net cash proceeds received by the
Company upon such conversion or exchange) plus (z) 100% of the aggregate
after-tax net cash proceeds (or of the after-tax net cash proceeds received upon
the conversion of non-cash proceeds into cash) received by the Company or a
Restricted Subsidiary from the sale or other disposition of any Investment
constituting a Restricted Payment that was made after the date of this
Indenture; provided, that the gain on such sale or disposition, if any, shall be
excluded in determining Consolidated Net Income for purpose of clause (w) above.
(b) The provisions of subsection (a) above shall not prohibit:
(i) the payment of any dividend within 60 days after the
date of declaration thereof, if at said date of declaration such
payment would not have been prohibited by the provisions of this
Indenture,
(ii) the redemption, purchase, retirement or other
acquisition of any Equity Interests of the Company in exchange for,
or out of the proceeds of the substantially concurrent sale (other
than to a Subsidiary) of, other Equity Interests of the Company
(other than Disqualified Stock),
(iii) the redemption, repurchase or payoff of any
Indebtedness (1) with proceeds of any Refinancing Indebtedness
permitted to be incurred pursuant to the provisions of Section
4.9(b)(xi) of the Senior Notes Indenture or (2) solely in exchange
for, or out of the proceeds of the substantially concurrent sale
(other than to a Subsidiary) of, any Equity Interests of the Company
(other than Disqualified Stock),
32
34
(iv) Investments by the Company or any Restricted
Subsidiary, in an aggregate amount not to exceed $5.0 million, in an
Unrestricted Subsidiary formed primarily for the purpose of
financing purchases and leases of inventory manufactured by the
Company or any of its Restricted Subsidiaries,
(v) payments by the Company to Holdings pursuant to the
Tax Sharing Agreement,
(vi) distributions, loans or advances to Holdings in an
aggregate amount not to exceed $500,000 per fiscal year; provided,
that such amounts are used by Holdings to pay ordinary operating
expenses (including, without limitation, reasonable directors' fees
and expenses, indemnification obligations, professional fees and
expenses and management compensation expenses relating to employees
of Holdings and the Company),
(vii) (A) payments to, and promptly used by, Holdings to
repurchase Capital Stock or Indebtedness of Holdings from directors,
officers and employees of the Company and its Subsidiaries,
including Management Investors, who have died or whose employment
has been terminated, and (B) loans or advances to employees of the
Company or any of its Subsidiaries; provided that the aggregate
amount of such payments, loans and advances in any fiscal year shall
not exceed the lesser of (x) $500,000 plus any amount available for
such payments pursuant to this clause (x) since the date of this
Indenture that have not been used for such purpose and (y) $2.0
million,
(viii) Permitted Transactions or
(ix) other Restricted Payments in an aggregate amount
not to exceed $3.0 million; provided, that with respect to clauses
(iv), (vii) and (ix) above, no Default or Event of Default shall
have occurred and be continuing at the time, or shall occur as a
consequence thereof.
(c) Not later than the date of making each Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment was permitted, and setting forth the basis upon which the
33
35
calculations required by this Section 4.7 were computed, which calculations may
be based upon the Company's latest available financial statements.
Section 4.8. Limitation on Restrictions on Subsidiary Dividends
The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary
(a) to (1) pay dividends or make any other distributions to the
Company or any of its Restricted Subsidiaries (A) on such Restricted
Subsidiary's Capital Stock or (B) with respect to any other interest or
participation in, or measured by, such Restricted Subsidiary's profits or (2)
pay any indebtedness owed to the Company or any of its Restricted Subsidiaries,
or
(b) to make loans or advances to the Company or any of its
Restricted Subsidiaries, or
(c) to transfer any of its assets to the Company or any of its
Restricted Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of:
(i) the Revolving Credit Facility, as in effect on the
Closing Date, or any refinancing thereof containing restrictions
that are not materially more restrictive than those contained in the
Revolving Credit Facility on the Closing Date,
(ii) the Senior Notes and the indentures under which the
Senior Notes are issued, each as in effect on the Closing Date, or
any refinancing thereof containing restrictions that are not
materially more restrictive than those contained in the Senior Notes
and such indentures on the Closing Date;
(iii) customary net worth restrictions on the actions
specified in clause (a)(1) above contained in the German Subsidiary
Facilities,
(iv) this Indenture and the Notes,
34
36
(v) applicable law,
(vi) restrictions with respect to a Subsidiary that was
not a Subsidiary on the Closing Date in existence at the time such
Person becomes a Subsidiary (but not created as a result of or in
anticipation of such Person becoming a Subsidiary); provided, that
such restrictions are not applicable to any other Person or the
properties or assets of any other Person,
(vii) customary non-assignment and net worth provisions
of any contract or lease entered into in the ordinary course of
business,
(viii) customary restrictions on the transfer of assets
subject to a Lien permitted under this Indenture imposed by the
holder of such Lien,
(ix) restrictions imposed by any agreement to sell
assets or Capital Stock to any Person pending the closing of such
sale, and
(x) permitted Refinancing Indebtedness (including
Indebtedness Refinancing Acquired Debt), provided, that such
restrictions contained in any agreement governing such Refinancing
Indebtedness are not materially more restrictive than those
contained in any agreements governing the Indebtedness being
Refinanced.
Section 4.9. [Intentionally Left Blank]
Section 4.10. Limitation on Asset Sales
The Company shall not, and shall not permit any
Restricted Subsidiary to, make any Asset Sale unless (i) the
Company or such Restricted Subsidiary receives consideration at the time of such
Asset Sale at least equal to the fair market value (as determined in good faith
by the Board of Directors as evidenced by a resolution of the Board of Directors
set forth in an Officers' Certificate delivered to the Trustee) of the assets
subject to such Asset Sale, (ii) at least 75% of the consideration for such
Asset Sale is in the form of cash, Cash Equivalents or liabilities of the
Company or any Restricted Subsidiary (other than liabilities that are by their
terms subordinated to the Notes) that are assumed by the transferee of such
assets (provided, that there is no further recourse to the Company and its
Restricted Subsidiaries with respect to such liabilities), and (iii) within 12
months of such Asset Sale, the Net Proceeds thereof are (a) invested in assets
related to the
35
37
business of the Company or its Restricted Subsidiaries, (b) applied to make an
offer to purchase the Senior Notes, if any are then outstanding, at a price
equal to 100% of the principal amount of the Senior Notes, plus accrued and
unpaid interest, if any, to the date of purchase, or (c) to the extent not used
as provided in clauses (a) or (b), applied to make an offer to purchase Notes as
described below (an "Excess Proceeds Offer"); provided, that if the amount of
Net Proceeds from any Asset Sale not used pursuant to clauses (a) and (b) above
is less than $5.0 million, the Company shall not be required to make an offer
pursuant to clause (c). Pending the final application of any such Net Proceeds,
the Company or any Restricted Subsidiary may temporarily reduce Indebtedness
under the Revolving Credit Facility or the German Subsidiary Facilities, or
temporarily invest such Net Proceeds in Cash Equivalents.
The amount of Net Proceeds not used as set forth in the
preceding clauses (a) and (b) constitutes "Excess Proceeds." If the Company
elects, or becomes obligated to make an Excess Proceeds Offer, the Company shall
offer to purchase Notes having an aggregate principal amount equal to the Excess
Proceeds (the "Purchase Amount"), at a purchase price equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest, if any, to
the purchase date. The Company must commence such Excess Proceeds Offer not
later than 30 days after the expiration of the 12-month period following the
Asset Sale that produced Excess Proceeds. If the aggregate purchase price for
the Notes tendered pursuant to the Excess Proceeds Offer is less than the Excess
Proceeds, the Company and its Restricted Subsidiaries may use the portion of the
Excess Proceeds remaining after payment of such purchase price for general
corporate purposes.
Each Excess Proceeds Offer shall remain open for a
period of 20 Business Days and no longer, unless a longer period is required by
law (the "Excess Proceeds Offer Period"). Promptly after the termination of the
Excess Proceeds Offer Period (the "Excess Proceeds Payment Date"), the Company
shall purchase and mail or deliver payment for the Purchase Amount for the Notes
or portions thereof tendered, pro rata or by such other method as may be
required by law, or, if less than the Purchase Amount has been tendered, all
Notes tendered pursuant to the Excess Proceeds Offer. The principal amount of
Notes to be purchased pursuant to an Excess Proceeds Offer may be reduced by the
principal amount of Notes acquired by the Company through purchase or redemption
(other than pursuant to a Change of Control Offer) subsequent to the date of the
Asset Sale and surrendered to the Trustee for cancellation.
36
38
Each Excess Proceeds Offer shall be conducted in
compliance with all applicable laws, including without limitation, Regulation
14E of the Exchange Act and the rules thereunder and all other applicable
Federal and state securities laws. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section
4.10, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.10 by virtue thereof. The Company shall not, and shall not permit any
of its Subsidiaries to, create or suffer to exist or become effective any
restriction that would impair the ability of the Company to make an Excess
Proceeds Offer upon an Asset Sale or, if such Excess Proceeds Offer is made, to
pay for the Notes tendered for purchase.
The Company shall, no later than 30 days following the
expiration of the 12-month period following the Asset Sale that produced Excess
Proceeds, commence the Excess Proceeds Offer by mailing to the Trustee and each
Holder, at such Holder's last registered address, a notice, which shall govern
the terms of the Excess Proceeds Offer, and shall state:
(1) that the Excess Proceeds Offer is being made pursuant to this
Section 4.10, the principal amount of Notes which shall be accepted
for payment and that all Notes validly tendered shall be accepted
for payment on a pro rata basis;
(2) the purchase price and the date of purchase;
(3) that any Notes not tendered or accepted for payment pursuant to
the Excess Proceeds Offer shall continue to accrue interest;
(4) that, unless the Company defaults in the payment of the purchase
price with respect to any Notes tendered, Notes accepted for payment
pursuant to the Excess Proceeds Offer shall cease to accrue interest
after the Excess Proceeds Payment Date;
(5) that Holders electing to have Notes purchased pursuant to an
Excess Proceeds Offer shall be required to surrender their Notes,
with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Company prior to the close of
business on the third Business Day immediately preceding the Excess
Proceeds Payment Date;
37
39
(6) that Holders shall be entitled to withdraw their election if the
Company receives, not later than the close of business on the second
Business Day preceding the Excess Proceeds Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of Notes the Holder delivered for
purchase and a statement that such Holder is withdrawing his
election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in part shall be
issued Notes representing the unpurchased portion of the Notes
surrendered; provided that each Note purchased and each new Note
issued shall be in principal amount of $1,000 or whole multiples
thereof, other than as required to effect the purchase of Notes
issued as payment pursuant to Section 4.1(b); and
(8) the instructions that Holders must follow in order to tender
their Notes.
On or before the Excess Proceeds Payment Date, the
Company shall (i) accept for payment on a pro rata basis the Notes or portions
thereof tendered pursuant to the Excess Proceeds Offer, (ii) deposit with the
Paying Agent money sufficient to pay the purchase price of all Notes or portions
thereof so accepted and (iii) deliver to the Trustee the Notes so accepted,
together with an Officers' Certificate stating that the Notes or portions
thereof tendered to the Company are accepted for payment. The Paying Agent shall
promptly mail to each Holder of Notes so accepted payment in an amount equal to
the purchase price of such Notes, and the Trustee shall promptly authenticate
and mail to such Holders new Notes equal in principal amount to any unpurchased
portion of the Note surrendered.
The Company shall make a public announcement of the
results of the Excess Proceeds Offer as soon as practicable after the Excess
Proceeds Payment Date. For the purposes of this Section 4.10, the Trustee shall
act as the Paying Agent.
Section 4.11. Limitation on Transactions With Affiliates
The Company shall not, and shall not permit any of the
Restricted Subsidiaries to, directly or indirectly, sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into any contract, agreement, understanding,
loan, advance or guarantee with, or
38
40
for the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), except for (i) Affiliate Transactions, which together with all
Affiliate Transactions that are part of a common plan, have an aggregate value
of not more than $1.0 million; provided, that such transactions are conducted in
good faith and on terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction at such time on an arm's-length basis from a Person that
is not an Affiliate of the Company or such Restricted Subsidiary, (ii) Affiliate
Transactions, which together with all Affiliate Transactions that are part of a
common plan, have an aggregate value of not more than $5.0 million; provided,
that a majority of the disinterested members of the Board of Directors of the
Company determine that such transactions are conducted in good faith and on
terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
at such time on an arm's-length basis from a Person that is not an Affiliate of
the Company or such Restricted Subsidiary, and (iii) Affiliate Transactions for
which the Company delivers to the Trustee an opinion as to the fairness to the
Company or such Restricted Subsidiary from a financial point of view, issued by
an investment banking firm of national standing.
Notwithstanding the foregoing, the following will not be
deemed to be Affiliate Transactions: (i) employment agreements entered into by
the Company or any Restricted Subsidiary in the ordinary course of business with
the approval of a majority of the disinterested members of the Company's Board
of Directors, (ii) transactions between or among the Company and/or its Wholly
Owned Subsidiaries, (iii) Restricted Payments permitted by Section 4.7 of this
Indenture, and (iv) reasonable fees and compensation paid to and indemnity
provided on behalf of, officers, directors, employees or consultants of the
Company or any Restricted Subsidiary as determined in good faith by a majority
of the disinterested directors of the Company's Board of Directors or, if none,
unanimously by the Board of Directors.
Section 4.12. [Intentionally Left Blank]
Section 4.13. Corporate Existence
Subject to Article 5 of this Indenture, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect (i) its corporate existence, and the corporate, partnership or
other existence of each of its respective Subsidiaries, in accordance with their
respective organizational documents (as the same may be amended from time to
time) and (ii) its (and its Subsi-
39
41
diaries) rights (charter and statutory), licenses and franchises; provided, that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Subsidiary,
if the Board of Directors on behalf of the Company shall determine in good faith
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries taken as a whole and that the loss
thereof is not adverse in any material respect to the Holders.
Section 4.14. Repurchase Upon a Change of Control
Upon the occurrence of a Change of Control, the Company
shall notify the Trustee in writing thereof and shall make an offer to purchase
all of the Notes then outstanding as described below (the "Change of Control
Offer") at a purchase price equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest, if any, to the date of repurchase (the
"Change of Control Payment").
The Change of Control Offer shall be made in compliance
with all applicable laws, including without limitation, Regulation 14E of the
Exchange Act and the rules thereunder and all other applicable Federal and state
securities laws. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.14, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.14 by virtue
thereof.
Within 30 days following any Change of Control, the
Company shall commence the Change of Control Offer by mailing to the Trustee and
each Holder a notice, which shall govern the terms of the Change of Control
Offer, and shall state that:
(i) the Change of Control Offer is being made pursuant
to this Section 4.14 and that all Notes tendered will be accepted
for payment,
(ii) the purchase price and the purchase date, which
shall be a Business Day no earlier than 30 days nor later than 60
days from the date such notice is mailed (the "Change of Control
Payment Date"),
(iii) that any Note not tendered for payment pursuant to
the Change of Control Offer shall continue to accrue interest,
40
42
(iv) that, unless the Company defaults in the payment of
the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue
interest on the Change of Control Payment Date,
(v) that any Holder electing to have Notes purchased
pursuant to a Change of Control Offer shall be required to surrender
such Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes completed, to the Paying Agent
at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control
Payment Date,
(vi) that any Holder shall be entitled to withdraw such
election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes
such Holder delivered for purchase, and a statement that such Holder
is withdrawing his election to have such Notes purchased,
(vii) that a Holder whose Notes are being purchased only
in part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or an integral
multiple thereof,
(viii) the instructions that Holders must follow in
order to tender their Notes, and
(ix) the circumstances and relevant facts regarding such
Change of Control.
On the Change of Control Payment Date, the Company
shall, to the extent lawful, (i) accept for payment the Notes
or portions thereof tendered pursuant to the Change of Control Offer, (ii)
deposit with the Paying Agent an amount equal to the Change of Control Payment
in respect of all Notes or portions thereof so tendered and not withdrawn, and
(iii) deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officers' Certificate stating that the Notes or portions
thereof tendered to the Company are accepted for payment. The
41
43
Paying Agent shall promptly mail to each Holder of Notes so accepted payment in
an amount equal to the purchase price for such Notes, and the Trustee shall
authenticate and mail to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any, provided, that each such
new Note will be in principal amount of $1,000 or an integral multiple thereof.
The Company shall make a public announcement of the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date. For the purposes of this Section 4.14, the
Trustee shall act as the Paying Agent.
Section 4.15. Maintenance of Properties
The Company shall, and shall cause each of its
Subsidiaries to, maintain their properties and assets in normal working order
and condition as on the date of this Indenture (reasonable wear and tear
excepted) and make all necessary repairs, renewals, replacements, additions,
betterments and improvements thereto, as shall be reasonably necessary for the
proper conduct of the business of the Company and its Subsidiaries taken as a
whole; provided, that nothing herein shall prevent the Company or any of its
Subsidiaries from discontinuing any maintenance of any such properties if such
discontinuance is desirable in the conduct of the business of the Company and
its Subsidiaries taken as a whole.
Section 4.16. Maintenance of Insurance
The Company shall, and shall cause each of its
Subsidiaries to, maintain liability, casualty and other insurance (including
self-insurance consistent with prior practice) with responsible insurance
companies in such amounts and against such risks as is in accordance with
customary industry practice in the general areas in which the Company and its
Subsidiaries operate.
Section 4.17. Restrictions on Sale and Issuance of Subsidiary Stock
The Company shall not sell, and shall not permit any of
its Restricted Subsidiaries to issue or sell, any shares of Capital Stock of any
Restricted Subsidiary (other than directors' qualifying shares) to any Person
other than the Company or a Wholly Owned Subsidiary; provided, that the Company
and its Restricted Subsidiaries may sell all of the Capital Stock of a
Restricted Subsidiary owned by
42
44
the Company and its Restricted Subsidiaries if the Net Proceeds from such Asset
Sale are used in accordance with the provisions of Section 4.10 of this
Indenture.
Section 4.18. Line of Business
The Company shall not, and shall not permit any
Restricted Subsidiary to, engage in any business other than (a) the business
conducted or proposed to be conducted by the Company and the Restricted
Subsidiaries on the Closing Date and (b) any business that in the reasonable,
good faith judgment of the Board of Directors of the Company is ancillary,
complementary, supplementary, or related to, or an extension of, any business
described in clause (a) above.
ARTICLE 5
SUCCESSORS
Section 5.1. When the Company May Merge, etc.
The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets (determined on a consolidated basis for the Company and its
Restricted Subsidiaries) in one or more related transactions to, any other
Person unless:
(i) the Company is the surviving Person or
the Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, assignment,
transfer, lease, conveyance or other disposition has been made is a
corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia,
(ii) the Person formed by or surviving any
such consolidation or merger (if other than the Company) or the
Person to which such sale, assignment, transfer, lease, conveyance
or other disposition has been made assumes all the Obligations of
the Company, pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee, under the Notes and this
Indenture,
43
45
(iii) immediately after such transaction, no
Default or Event of Default exists, and
(iv) the Company, or any Person formed by or
surviving any such consolidation or merger, or to which such sale,
assignment, transfer, lease, conveyance or other disposition has
been made, (A) has a Consolidated Net Worth (immediately after the
transaction but prior to any purchase accounting adjustments
resulting from the transaction) equal to or greater than the
Consolidated Net Worth of the Company immediately preceding the
transaction and (B) shall be permitted, at the time of such
transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable
four-quarter period, to incur at least $1.00 of additional
Indebtedness pursuant to Section 4.9(a) of the Senior Notes
Indenture.
The Company shall deliver to the Trustee prior to the
consummation of any proposed transaction an Officers' Certificate to the
foregoing effect, an Opinion of Counsel, stating all conditions precedent to the
proposed transaction provided for in this Indenture have been complied with and
a written statement from a firm of independent public accountants of established
national reputation reasonably satisfactory to the Trustee stating that the
proposed transaction complies with clause (iv).
For purposes of this Section 5.1, the sale, lease,
conveyance, assignment, transfer or other disposition of all or substantially
all of the properties and assets of one or more Subsidiaries of the Company,
which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.
Section 5.2. Successor Substituted
In the event of any transaction (other than a lease)
contemplated by Section 5.1 hereof in which the Company is not the surviving
Person, the successor formed by such consolidation or into or with which the
Company is merged or to which such sale, lease, conveyance, assignment, transfer
or other disposition is made, or formed by such reorganization, as the case may
be, shall succeed to, and be substituted for, and may exercise every right and
power of, the Company, and
44
46
the Company shall be discharged from its Obligations under this Indenture, the
Notes and the Registration Rights Agreement with the same effect as if such
successor Person had been named as the Company herein or therein.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1. Events of Default
An "Event of Default" occurs if:
(1) the Company defaults in the payment of
interest on any Note when the same becomes due and payable and the
Default continues for a period of 30 days;
(2) the Company defaults in the payment of
the principal (or premium, if any) on any Note when the same becomes
due and payable at maturity, upon redemption, by acceleration, in
connection with an Excess Proceeds Offer, a Change of Control Offer
or otherwise;
(3) the Company defaults in the performance
of or breaches the provisions of Article V hereof;
(4) the Company fails to comply with any of
its other agreements or covenants in, or provisions of, the Notes or
this Indenture and the Default continues for 60 days after written
notice thereof has been given to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes, such
notice to state that it is a "Notice of Default;"
(5) a default occurs under (after giving
effect to any applicable grace periods or any extension of any
maturity date) any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any Restricted
Subsidiary (or the payment of which is guaranteed by the Company or
any Restricted Subsidiary), whether such Indebtedness or guarantee
now exists or is created after the date of this Indenture, if (a)
either (i) such default results from the failure to pay princi-
45
47
pal on such Indebtedness or (ii) as a result of such default the
maturity of such Indebtedness has been accelerated, and (b) the
principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness with respect to which such a
payment default (after the expiration of any applicable grace period
or any extension of the maturity date) has occurred, or the maturity
of which has been so accelerated, exceeds $5.0 million in the
aggregate;
(6) a final non-appealable judgment or
judgments for the payment of money (other than judgments as to which
a reputable insurance company has accepted full liability) is or are
entered by a court or courts of competent jurisdiction against the
Company or any Restricted Subsidiary and such judgment or judgments
remain undischarged, unbonded or unstayed for a period of 60 days
after entry, provided that the aggregate of all such judgments
exceeds $2.5 million;
(7) written assertion by the Company, of the
unenforceability of their obligations under the Indenture or the
Notes;
(8) the Company or any of its Restricted
Subsidiaries pursuant to or within the meaning of any Bankruptcy
Law:
(a) commences a voluntary case,
(b) consents to the entry of an order
for relief against it in an
involuntary case,
(c) consents to the appointment of a
Custodian of it or for all or
substantially all of its property,
(d) makes a general assignment for the
benefit of its creditors,
(e) admits in writing its inability to
pay debts as the same become due; or
(9) a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that:
46
48
(a) is for relief against the Company or
any of its Restricted Subsidiaries
in an involuntary case,
(b) appoints a Custodian of the Company
or any of its Restricted
Subsidiaries or for all or
substantially all of their property,
(c) orders the liquidation of the
Company, or any of its Restricted
Subsidiaries, and the order or
decree remains unstayed and in
effect for 60 days.
The Company shall, upon becoming aware that a Default or
Event of Default has occurred, deliver to the Trustee a
statement specifying such Default or Event of Default and what action the
Company is taking or proposes to take with respect thereto.
Section 6.2. Acceleration
If an Event of Default (other than an Event of Default
specified in clauses (8) and (9) of Section 6.1) occurs and is continuing, the
Trustee by written notice to the Company, or the Holders of at least 25% in
principal amount of the then outstanding Notes by written notice to the Company
and the Trustee, may declare the unpaid principal of and any accrued interest on
all the Notes to be due and payable. Upon such declaration the principal and
interest shall be due and payable immediately. If an Event of Default specified
in clause (8) or (9) of Section 6.1 with respect to the Company occurs, such an
amount shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. At any time
after a declaration of acceleration, but before a judgment or decree for payment
of the money due has been obtained by the Trustee, the Holders of a majority in
principal amount of the Notes outstanding, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if (a)
the Company has paid or deposited with the Trustee a sum sufficient to pay (i)
all sums paid or advanced by the Trustee and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
(ii) all overdue interest (including any interest accrued subsequent to an Event
of Default specified in clauses (8) and (9) of Section 6.1) on all Notes, (iii)
the principal of and premium, if any, on any Notes that have become due
otherwise than by such declaration or occurrence of
47
49
acceleration and interest thereon at the rate borne by the Notes, and (iv) to
the extent that payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Notes; (b) all Events of Default, other than
the non-payment of principal of and interest on the Notes that have become due
solely by such declaration or occurrence of acceleration, have been cured or
waived; and (c) the rescission would not conflict with any judgment, order or
decree of any court of competent jurisdiction.
Section 6.3. Other Remedies
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy (under this Indenture or otherwise) to
collect the payment of principal or interest on the Notes to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.4. Waiver of Past Defaults
Holders of a majority of the aggregate principal amount
of the then outstanding Notes by written notice to the Company and the Trustee
may on behalf of the Holders of all of the Notes (a) waive any existing Default
or Event of Default and its consequences under this Indenture except a
continuing Default or Event of Default in the payment of the principal of, or
interest on, any Note or a Default or an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Note affected, and/or (b) rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or
decree if all existing Events of Default (except nonpayment of principal or
interest that has become due solely because of the acceleration) have been cured
or waived. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
48
50
Section 6.5. Control by Majority
The Holders of a majority in principal amount of the
then outstanding Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of other Holders, or
that may involve the Trustee in personal liability.
Section 6.6. Limitation on Suits
A Holder may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of
the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(c) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within
60 days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a majority
in principal amount of the then outstanding Notes do not give the
Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
Section 6.7. Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Note to receive payment of principal and interest
on the Note, on
49
51
or after the respective due dates expressed in the Note, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of the Holder.
Section 6.8. Collection Suit by Trustee
If an Event of Default specified in Section 6.1(1) or
(2) occurs and is continuing, the Trustee is authorized to recover judgment in
its own name and as trustee of an express trust against the Company for the
whole amount of principal and interest remaining unpaid on the Notes and
interest on overdue principal (and premium, if any) and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.9. Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company (or any
other obligor under the Notes), their creditors or their property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.7 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders of the Notes
may be entitled to receive in such proceeding whether in liquidation or under
any plan of reorganization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization,
50
52
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.
Section 6.10. Priorities
If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.7, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders for amounts due and unpaid on the
Notes for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal and
interest, respectively;
Third: without duplication, to Holders for any other
Obligations owing to the Holders under the Notes or this Indenture; and
Fourth: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for
any payment to Holders.
Section 6.11. Undertaking for Costs
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.6, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
51
53
ARTICLE 7
TRUSTEE
Section 7.1. Duties of Trustee
(1) If an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise
or use under the circumstances in the conduct of his or her own
affairs.
(2) Except during the continuance of an
Event of Default:
(a) The duties of the Trustee shall be
determined solely by the express provisions of this Indenture, and
the Trustee need perform only those duties that are specifically set
forth in this Indenture, and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(b) In the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(a) This paragraph does not limit the effect
of paragraph (2) of this Section.
(b) The Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in ascertaining
the pertinent facts.
52
54
(c) The Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.5.
(4) Whether or not therein expressly so
provided, every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (1), (2) and (3) of this Section.
(5) No provision of this Indenture shall
require the Trustee to expend or risk its own funds or incur any liability. The
Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
Section 7.2. Rights of Trustee
(1) The Trustee may conclusively rely upon
any document believed by it to be genuine and to have been signed or presented
by the proper Person. The Trustee need not investigate any fact or matter stated
in the document.
(2) Before the Trustee acts or refrains from
acting, it may require an Officers' Certificate or an Opinion of Counsel or
both. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers' Certificate or Opinion of Counsel.
The Trustee may consult with counsel and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(3) The Trustee may act through agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(4) The Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers conferred upon it by this Indenture.
53
55
(5) Unless otherwise specifically provided
in this Indenture, any demand, request, direction or notice from the Company
shall be sufficient if signed by an Officer of the Company, on behalf of the
Company.
(6) Except with respect to Section 4.1, the
Trustee shall have no duty to inquire as to the performance of the Company's
covenants in Article 4 hereof. In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Sections 6.1(1), 6.1(2) and 4.1, or (ii) any
Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
Section 7.3. Individual Rights of Trustee
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Company or
an Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11.
Section 7.4. Trustee's Disclaimer
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision hereof, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.5. Notice of Defaults
If a Default or Event of Default occurs and is
continuing and if the Trustee has knowledge thereof (within the meaning of
Section 7.2(b)), the Trustee shall mail to the Holders a notice of the Default
or Event of Default within 30 days after it occurs.
Section 7.6. Reports by Trustee to Holders
54
56
Within 60 days after each May 15 beginning with the May
15 following the date of this Indenture, the Trustee shall mail to the Holders a
brief report dated as of such reporting date that complies with TIA Section
313(a) (but if no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA Section 313(b). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under
the TIA, a copy of each report at the time of its mailing to the Holders shall
be filed with the Commission and each stock exchange on which the Notes are
listed. The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange.
Section 7.7. Compensation and Indemnity
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel, except such disbursements,
advances and expenses as may be attributable to its negligence or bad faith.
The Company shall indemnify the Trustee against any and
all losses, liabilities or expenses incurred by it without negligence or bad
faith on its part arising out of or in connection with the acceptance or
administration of its duties under this Indenture, except as set forth below.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense. In the event that a conflict of interest
or conflicting defenses would arise in connection with the representation of the
Company and the Trustee by the same counsel, the Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
55
57
The obligations of the Company under this Section 7.7
shall survive the satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through its own negligence
or bad faith.
To secure the Company's payment obligations in this
Section, the Trustee shall have a Lien prior to the Notes on
all money or property held or collected by the Trustee, except that held in
trust to pay principal of (and premium, if any) and interest on particular
Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.1(8) or (9) occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
Section 7.8. Replacement of Trustee
A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
56
58
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly
appoint a successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee after written request by any Holder who
has been a Holder for at least six months fails to comply with Section 7.10,
such Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to the Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided that all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.7. Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 hereof shall continue
for the benefit of the retiring Trustee, and the Company shall pay to any such
replaced or removed Trustee all amounts owed under Section 7.7 upon such
replacement or removal.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification
There shall at all times be a Trustee hereunder that
shall (a) be a corporation organized and doing business under the laws of the
United States of
57
59
America or of any state thereof or of the District of Columbia authorized under
such laws to exercise corporate trustee power, (b) be subject to supervision or
examination by Federal or state or the District of Columbia authority, and (c)
have a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies
the requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The
Trustee is subject to TIA Section 310(b); provided, however, that there shall be
excluded from the operations of TIA Section 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 7.11. Preferential Collection of Claims Against Company
The Trustee is subject to TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein. The provisions of TIA Section 311 shall apply to the Company,
as obligor on the Notes.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.1. Termination of Company's Obligations.
This Indenture shall cease to be of further effect
(except that Section 7.7, 8.3 and 8.4 shall survive) when all outstanding Notes
theretofore authenticated and issued have been delivered (other than (i)
destroyed, lost or stolen Notes that have been replaced or paid and (ii) Notes
for whose payment money has theretofore been deposited in trust and thereafter
repaid to the Company pursuant to Section 8.3(b) hereof) to the Trustee for
cancellation and all sums payable by the Company hereunder have been paid. In
addition, the Company may (A) if applicable, be discharged from any and all
Obligations in respect of the Notes, other than the obligation to duly and
punctually pay the principal of, and premium, if any, and interest on the Notes,
in accordance herewith, or (B) if applicable, omit to comply with restrictive
covenants, and such omission will not be deemed to be an Event of Default if:
58
60
(1) with respect to clauses (A) and (B), the Company
irrevocably deposits in trust with the Trustee or at the option of
the Trustee, with a trustee reasonably satisfactory to the Trustee
and the Company under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, money or U.S.
Government Obligations sufficient (as certified by a nationally
recognized accounting firm designated by the Company) to pay
principal and interest and premium, if any, on the Notes to maturity
or redemption and each installment of interest, if any, on the due
dates thereof on the Notes, as the case may be, and to pay all other
sums payable by it hereunder, and with respect to clause (B) the
Obligations under this Indenture other than with respect to such
covenants and Events of Default which will remain in full force and
effect, provided that (i) the trustee of the irrevocable trust shall
have been irrevocably instructed to pay such money or the proceeds
of such U.S. Government Obligations to the Trustee and (ii) the
Trustee shall have been irrevocably instructed to apply such money
or the proceeds of such U.S. Government Obligations to the payment
of said principal, premium, if any, and interest with respect to the
Notes;
(2) with respect to clause (A), the Company has received
from, or there has been published by, the U.S. Internal Revenue
Service a ruling or there has been a change in laws which in the
opinion of independent counsel, which the Company shall deliver to
the Trustee, provides that holders of the Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to
Federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit, defeasance
and discharge had not occurred and the Notes were otherwise paid or
redeemed in accordance with the provisions of this Indenture;
(3) with respect to clause (B), the Company has
delivered to the Trustee an opinion of independent counsel to the
effect that the holders of the Notes will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit
and defeasance and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred and the
Notes were redeemed pursuant to Article 3 hereof without exercising
the option of the Company pursuant to this Section 8.1; and
59
61
(4) the Company delivers to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction
and discharge of this Indenture have been complied with, and an
Opinion of Counsel to the same effect.
Then, this Indenture shall cease to be of further effect (except as provided in
this paragraph), and the Trustee, on demand of the Company, shall execute proper
instruments acknowledging confirmation of and discharge under this Indenture.
However, the Company's Obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7, 4.1,
4.6, 7.7, 7.8, 8.3 and 8.4, and the Trustee's and Paying Agent's obligations in
Section 8.3 shall survive until the Notes are no longer outstanding. Thereafter,
only the Company's obligations in Section 7.7 and 8.4 and the Company's,
Trustee's and Paying Agent's obligations in Section 8.3 shall survive.
After such irrevocable deposit has been made pursuant to
this Section 8.1 and satisfaction of the other conditions set forth herein, the
Trustee upon request shall acknowledge in writing the discharge of the Company's
obligations under this Indenture except for those surviving obligations
specified above.
In order to have money available on a payment date to
pay principal, premium, if any, or interest on the Notes, the U.S. Government
Obligations shall be payable as to principal, premium, if any, or interest at
least one Business Day before such payment date in such amounts as shall provide
the necessary money. U.S. Government Obligations shall not be callable at the
issuer's option.
Section 8.2. Application of Trust Money.
The Trustee, or a trustee satisfactory to the Trustee
and the Company, shall hold in trust, money or U.S. Government Obligations
deposited with it pursuant to Section 8.1. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal, premium, if any, and
interest on the Notes.
Section 8.3. Repayment to the Company.
(a) The Trustee and the Paying Agent shall promptly pay
to the Company upon written request any excess money or securities (as certified
by an independent public accountant reasonably acceptable to the Trustee) held
by them at any time.
60
62
(b) The Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them for the payment of
principal, premium, if any, or interest that remains unclaimed for two years
after the date upon which such payment shall have become due; provided that the
Company shall have either caused notice of such payment to be mailed to each
Holder entitled thereto no less than 30 days prior to such repayment or within
such period shall have published such notice in a financial newspaper of
widespread circulation published in the City of New York, including, without
limitation, The Wall Street Journal. After payment to the Company, Holders
entitled to the money must look to the Company for payment as general creditor
unless an applicable abandoned property law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
Section 8.4. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with Section 8.2 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Obligations of the Company under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.1 until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with Section 8.2;
provided that if the Company has made any payment of interest on or principal of
any Notes because of the reinstatement of its Obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
ARTICLE 9
AMENDMENTS
Section 9.1. Without Consent of Holders
The Company and the Trustee may amend this Indenture and
the Notes without the consent of any Holder:
(1) to cure any ambiguity, defect or
inconsistency;
61
63
(2) to provide for uncertificated Notes in
addition to or in place of certificated Notes;
(3) to comply with Article 5 and Section
10.1 hereof;
(4) to make any change that would provide
any additional rights or benefits to the Holders of the Notes or
that does not adversely affect the legal rights hereunder or
thereunder of any Holder;
(5) to comply with requirements of the
Commission in order to effect or maintain the qualification of this
Indenture under the TIA; or
(6) prior to the original issuance of Notes
in exchange for Senior Preferred Stock, to amend the provisions of
Article 4 hereof in accordance with paragraph (f)(ii)(C) of the
Certificate of Designation.
Upon the request of the Company, accompanied by a
resolution of the Board of Directors of the Company authorizing the execution of
any such supplemental indenture or amendment, and upon receipt by the Trustee of
the documents described in Section 9.6 hereof required or requested by the
Trustee, the Trustee shall join with the Company in the execution of any
supplemental indenture or amendment authorized or permitted by the terms of this
Indenture and shall make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to enter
into such supplemental indenture or amendment that affects its own rights,
duties or immunities under this Indenture or otherwise.
Section 9.2. With Consent of Holders
Subject to Sections 6.4 and 6.7 hereof, the Company and
the Trustee, as applicable, may amend, or waive any provision of, this Indenture
or the Notes with the written consent of the Holders of at least a majority of
the principal amount of the then outstanding Notes.
Upon the request of the Company, accompanied by a
resolution of the Board of Directors of the Company authorizing the execution of
any such supplemental indenture or amendment, and upon filing with the Trustee
of evidence satisfactory to the Trustee of the consent of the Holders as
aforesaid, and upon
62
64
receipt by the Trustee of the documents described in Section 9.6 hereof, the
Trustee shall join with the Company in the execution of such supplemental
indenture or amendment unless such supplemental indenture or amendment affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed supplemental
indenture or amendment, but it shall be sufficient if such consent approves the
substance thereof.
After a supplemental indenture or amendment under this
Section becomes effective, the Company shall mail to the Holders of each Note
affected thereby a notice briefly describing the amendment or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture, amendment or waiver.
Notwithstanding any other provision hereof, without the
consent of each Holder affected, an amendment or waiver under this Section may
not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes
whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time
for payment of interest, including default interest, on any Note;
(3) reduce the principal of, or the premium
on, or change the fixed maturity of any Note or alter Article III
hereof or numbered paragraphs 5 or 6 of Exhibit A to this Indenture
or the price at which the Company shall offer to purchase such Notes
pursuant to Sections 4.10 or 4.14 hereof;
(4) waive a Default or Event of Default in
the payment of principal of or premium, if any, or interest on, or
redemption payment with respect to, any Note (other than a Default
in the payment of an amount due as a result of an acceleration if
the Holder rescinds such acceleration pursuant to Section 6.2);
63
65
(5) make any Note payable in money other
than that stated in the Notes;
(6) make any change in Section 6.4 or 6.7
hereof or in this Section 9.2; or
(7) make any change adversely affecting the
contractual ranking of the Obligations.
Section 9.3. Compliance with Trust Indenture Act
If, at the time of an amendment to this Indenture or the
Notes, this Indenture shall be qualified under the TIA, every amendment to this
Indenture or the Notes shall be set forth in a supplemental indenture that
complies with the TIA as then in effect.
Section 9.4. Revocation and Effect of Consents
Until a supplemental indenture, an amendment or waiver
becomes effective, a consent to it by a Holder of a Note is a continuing consent
by the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note, even if notation of the
consent is not made on any Note. A supplemental indenture, amendment or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
The Company may fix a record date for determining which
Holders must consent to such supplemental indenture, amendment or waiver. If the
Company fixes a record date, the record date shall be fixed at (i) the later of
30 days prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished to the Trustee prior to such solicitation
pursuant to Section 2.5, or (ii) such other date as the Company shall designate.
Section 9.5. Notation on or Exchange of Notes
The Trustee may place an appropriate notation about a
supplemental indenture, amendment or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue and the Trustee
shall authenticate new Notes that reflect the amendment or waiver.
64
66
Failure to make the appropriate notation or issue a new
Note shall not affect the validity and effect of such amendment or waiver.
Section 9.6. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplemental
indenture authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment or supplemental indenture, the Trustee shall be entitled to
receive, if requested, an indemnity reasonably satisfactory to it and to receive
and, subject to Section 7.1, shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that such
amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it shall be valid and
binding upon the Company in accordance with its terms. The Company may not sign
an amendment or supplemental indenture until the Board of Directors of the
Company approves it.
Section 9.7. Amendments and Supplements Requiring Consent Of Holders
Of Senior Indebtedness
No amendment or modification to Article 10, this Section
9.7 or Section 11.6 may be made to this Indenture without the consent of holders
of at least a majority of the outstanding principal amount of each class of
Designated Senior Indebtedness that would be adversely affected by such
amendment or modification; provided, however, that if some but not all classes
of Designated Senior Indebtedness consent to any such amendment or modification,
such amendment or modification shall be effective with respect to each
consenting class.
ARTICLE 10
SUBORDINATION
SECTION 10.1. Notes Subordinated to Senior
Indebtedness.
Anything herein to the contrary notwithstanding, the
Company, for itself and its successors, and each Holder, by such Holder's
acceptance of Notes, agrees, that the payment of the principal of and interest
on the Notes is subordinated,
65
67
to the extent and in the manner provided in this Article 10, to the prior
payment in full of all Senior Indebtedness.
This Article 10 shall constitute a continuing offer to
all persons who, in reliance upon such provisions, become holders of, or
continue to hold, Senior Indebtedness, and such provisions are made for the
benefit of the holders of Senior Indebtedness, and such holders are made
obligees hereunder and any one or more of them may enforce such provisions.
SECTION 10.2. No Payment on Notes in Certain Circumstances.
(a) No payment shall be made by the Company on account
of principal of or interest on the Notes (other than (x) interest payable in
additional Notes, as provided in the Notes, and (y) interest or principal paid
with Capital Stock of the Company or any debt security of the Company containing
subordination and default provisions no less favorable to the holders of Senior
Indebtedness than the provisions hereof) or to acquire or repurchase any of the
Notes or on account of the redemption provisions of the Notes (i) upon the
maturity of any Senior Indebtedness by lapse of time, acceleration or otherwise,
unless and until all principal thereof and interest thereon shall first be paid
in full in cash or Cash Equivalents, or such payment duly provided for or (ii)
upon the happening of any default in payment of any principal of or interest on
any Senior Indebtedness when the same becomes due and payable (a "Payment
Default"), unless and until such default shall have been cured or waived or
shall have ceased to exist.
(b) Without limiting the effect of Section 10.2(a)
hereof, upon the happening of a default or event of default (other than a
Payment Default) (including any event which, with the giving of notice or lapse
of time, or both, would become an event of default and including any default or
event of default that would result upon any payment with respect to the Notes)
with respect to any Senior Indebtedness, as such default or event of default is
defined therein or in the instrument or agreement under which it is outstanding,
and upon written notice thereof given to the Company and the Trustee by any
holders of such Senior Indebtedness or their representative ("Payment Notice"),
then, unless and until such default or event of default shall have been cured or
waived or shall have ceased to exist, no payment shall be made by the Company on
account of principal of or interest on the Notes (other than (x) interest
payable in additional Notes, as provided in the Notes, and (y) interest or
principal paid with Capital Stock of the Company or-any debt security of the
Company containing subordination and default provisions no less favorable to the
holders of Senior Indebtedness than the provisions hereof) or to acquire or
repurchase any of the Notes
66
68
or on account of the redemption provisions of the Notes; provided, however, that
this paragraph (b) shall not prevent the making of any payment for more than 89
days after the Payment Notice shall have been given. Notwithstanding the
foregoing, (i) not more than one Payment Notice shall be given within a period
of 185 consecutive days, (ii) no event of default that existed or was continuing
on the date of any Payment Notice (whether or not such event of default is on
the same issue of Senior Indebtedness) shall be made the basis for the giving of
a subsequent Payment Notice, (iii) if the Company or the Trustee receives any
Payment Notice, a similar notice relating to or arising out of the same default
or facts giving rise to such default (whether or not such default is on the same
issue of Senior Indebtedness) shall not be effective for purposes of this
Section 10.2, and (iv) a Payment Notice may only be given by a holder or holders
(or the representative of holders) of Designated Senior Indebtedness.
(c) In furtherance of the provisions of Section 10.1,
if, notwithstanding the foregoing provisions of this Section 10.2, any payment
on account of principal of or interest on the Notes (other than (x) interest
payable in additional Notes, as provided in the Notes, and (y) interest or
principal paid with Capital Stock of the Company or any debt security of the
Company containing subordination and default provisions no less favorable to the
holders of Senior Indebtedness than the provisions hereof) or to acquire or
repurchase any of the Notes or on account of the redemption provisions of the
Notes shall be made by or on behalf of the Company and received by the Trustee,
by any Holder or by any Paying Agent (or, if the Company is acting as its own
Paying Agent, money for any such payment shall be segregated and held in trust),
at a time when such payment was prohibited by the provisions of this Section
10.2, then, unless and until such payment is no longer prohibited by this
Section 10.2, such payment (subject to the provisions of Sections 10.6 and 10.7)
shall be received and held in trust by the Trustee or such Holder or Paying
Agent, as the case may be, for the benefit of, and shall be immediately paid
over to, the holders of Senior Indebtedness or their representative, ratably
according to the respective amounts of Senior Indebtedness held or represented
by each, to the extent necessary to make payment in full in cash or Cash
Equivalents (except as such payment otherwise shall have been provided for), of
all Senior Indebtedness remaining unpaid, after giving effect to all concurrent
payments and distributions and all provisions therefor to or for the holders of
Senior Indebtedness. The Company shall give prompt notice to the Trustee of any
default or event of default or any acceleration under any Senior Indebtedness or
under any agreement pursuant to which Senior Indebtedness may have been issued.
Failure to give such notice shall not affect the subordination of the Notes to
Senior Indebtedness provided in this Article 10.
67
69
SECTION 10.3. Notes Subordinated to Prior Payment
of All Senior Indebtedness on Dissolution,
Liquidation or Reorganization of Company.
Upon any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company
(including, without limitation, in bankruptcy, insolvency or. receivership
proceedings or upon any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company):
(a) the holders of all Senior Indebtedness shall first
be entitled to receive payments in full in cash or Cash Equivalents (or to have
such payment duly provided for) of the principal and interest due thereon before
the Holders are entitled to receive any payment on account of the principal of
or interest (other than (x) interest payable in additional Notes, as provided in
the Notes and (y) interest or principal paid with Capital Stock of the Company
or any debt security of the Company containing subordination and default
provisions no less favorable to the holders of Senior Indebtedness than the
provisions hereof) on the Notes;
(b) any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to which the
Holders or the Trustee on behalf of the Holders would be entitled except for the
provisions of this Article 10, including any such payment or distribution that
is payable or deliverable by reason of the payment of any other Indebtedness of
the Company being subordinated to the payment of the Notes, shall be paid by the
liquidating trustee or agent or other person making such a payment or
distribution, directly to the holders of Senior Indebtedness or their
representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, until all Senior Indebtedness
remaining unpaid shall have been paid in full in cash or Cash Equivalents
(except as such payment otherwise shall have been provided for), after giving
effect to all concurrent payments and distributions and all provisions therefor
to or for the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by the Trustee or the
Holders or any Paying Agent (or, if the Company is acting as its own Paying
Agent, money for any such payment or distribution shall be segregated or held in
trust) on account of principal of or interest on the Notes (other than (x)
interest payable in additional Notes, as provided in the Notes and (y) interest
or principal paid with Capital Stock of the
68
70
Company or any debt security of the Company containing subordination provisions
no less favorable to the holders of Senior Indebtedness than the provisions
hereof) before all Senior Indebtedness is paid in full in cash or Cash
Equivalents, or provision made for such payment, such payment or distribution
(subject to the provisions of Sections 10.6 and 10.7) shall be received and held
in trust by the Trustee or such Holder or Paying Agent for the benefit of, and
shall immediately be paid over to, the holders of Senior Indebtedness or their
representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, until all Senior Indebtedness
remaining unpaid shall have been paid in full in cash or Cash Equivalents
(except as such payment otherwise shall have been provided for), after giving
effect to all concurrent payments and distributions and all provisions therefor
to or for the holders of Senior Indebtedness.
The Company shall give prompt notice to the Trustee
prior to any dissolution, winding up, liquidation or reorganization of the
Company or assignment for the benefit of creditors by the Company.
SECTION 10.4. Holders to Be Subrogated to Rights
of Holders of Senior Indebtedness.
Subject to the payment in full in cash or Cash
Equivalents of all Senior Indebtedness, the Holders shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Notes shall be paid in full in cash or Cash
Equivalents, and for the purpose of such subrogation no such payments or
distributions to the holders of Senior Indebtedness by or on behalf of the
Company, or by or on behalf of the Holders by virtue of this Article 10, which
otherwise would have been made to the Holders, shall, as between the Company and
the Holders, be deemed to be payment by the Company to or on account of the
Senior Indebtedness, it being understood that the provisions of this Article 10
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.
If any payment or distribution to which the Holders
would otherwise have been entitled but for the provisions of this Article 10
shall have been applied, pursuant to the provisions of this Article 10, to the
payment of all amounts payable under the Senior Indebtedness, then the Holders
shall be entitled to receive from the holders of such Senior Indebtedness any
payments or distributions received by such holders of Senior Indebtedness in
excess of the amount sufficient to pay all amounts
69
71
payable under or in respect of the Senior Indebtedness in full in cash or Cash
Equivalents.
SECTION 10.5. Obligations of the Company Unconditional.
Nothing contained in this Article 10 or elsewhere in
this Indenture or in the Notes is intended to or shall impair, as between the
Company and the Holders, the Obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the Notes
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the Holders and
creditors of the Company other than the holders of the Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon Default under
this Indenture, subject to the rights, if any, under this Article 10, of the
holders of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Upon any distribution of
assets of the Company referred to in this Article 10, the Trustee, subject to
the provisions of Sections 7.1 and 7.2, and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceedings
are pending, or a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders for the purpose
of ascertaining the persons entitled to participate in such 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 10.
SECTION 10.6. Trustee Entitled to Assume Payments Not Prohibited
in Absence of Notice.
The Trustee shall not at any time be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment to or by the Trustee unless and until the Trustee or any Paying Agent
shall have received notice thereof from the Company or from one or more holders
of Senior Indebtedness or from any representative therefor and, prior to the
receipt of any such notice, the Trustee, subject to the provisions of Sections
7.1 and 7.2, shall be entitled in all respects conclusively to assume that no
such fact exists.
SECTION 10.7. Application by Trustee of Assets Deposited with It.
70
72
U.S. Government Obligations deposited in trust with the
Trustee pursuant to and in accordance with Section 8.1 (including, without
limitation, clause (4) thereof) shall be for the sole benefit of Holders and, to
the extent allocated for the payment of Notes, shall not be subject to the
subordination provisions of this Article 10. Otherwise, any deposit of assets by
the Company with the Trustee or any Paying Agent (whether or not in trust) for
the payment of principal of or interest on any Notes shall be subject to the
provisions of Sections 10.1, 10.2, 10.3 and 10.4; provided, that, if prior to
the second Business Day preceding the date on which by the terms of this
Indenture any such assets may become distributable for any purpose (including,
without limitation, the payment of either principal of or interest on any Note)
the Trustee or such Paying Agent shall not have received with respect to such
assets the notice provided for in Section 10.6, then the Trustee or such Paying
Agent shall have full power and authority to receive such assets and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary received by it on or after such date.
SECTION 10.8. Subordination Rights Not Impaired by Acts or
Omissions of Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior
Indebtedness to enforce the subordination provisions contained in this Article
10 shall at any time in any way be prejudiced or impaired by any act or failure
to act on the part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company with the terms
of this Indenture, regardless of any knowledge thereof that any such holder may
have or be otherwise charged with. The holders of Senior Indebtedness may
extend, renew, restate, supplement, modify or amend the terms of the Senior
Indebtedness or any security therefor and release, sell or exchange such
security and otherwise deal freely with the Company and its Subsidiaries all
without affecting the liabilities and obligations of the parties to the
Indenture or the Holders.
SECTION 10.9. Holders Authorize Trustee to Effectuate
Subordination of Notes.
Each Holder of the Notes by his acceptance thereof
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effect the subordination provisions
contained in this Article 10, and appoints the Trustee his attorney-in-fact for
such purpose, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the
71
73
benefit of creditors or any other marshalling of assets and liabilities of the
Company) tending towards liquidation of the business and assets of the Company,
the immediate filing of a claim for the unpaid balance of its or his Notes in
the form required in said proceedings and cause said claim to be approved. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceeding prior to 30 days before the expiration of the time to file
such claim or claims, then the holders of the Senior Indebtedness or their
representative is hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Notes. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee or the holders of Senior Indebtedness or their representative to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 10.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set
forth in this Article 10 in respect of any Senior Indebtedness at any time held
by it to the same extent as any other holder of Senior Indebtedness, and nothing
in this Indenture shall be construed to deprive the Trustee of any of its rights
as such holder.
SECTION 10.11. Article 10 Not to Prevent Events of Default.
The failure to make a payment on account of principal of
or interest on the Notes by reason of any provision of this Article 10 shall not
be construed as preventing the occurrence of a Default or an Event of Default
under Section 6.1.
SECTION 10.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness, and shall not be liable to any such
holders (other than for its wilful misconduct or gross negligence) if it shall
in good faith mistakenly pay over or deliver to the Holders of Notes or the
Company or any other person, money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article 10 or otherwise.
Nothing in this Section 10.12 shall affect the obligation of any other such
person to hold such payment for the benefit of, and to pay such payment over to,
the holders of Senior Indebtedness or their representative.
72
74
ARTICLE 11
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c),
the imposed duties shall control.
Section 11.2. Notices
Any notice or communication by the Company or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first-class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' addresses:
If to the Company:
XXXXX Material Handling Company
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopier No.: (000) 000-0000
If to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division
Telecopier No.: (000) 000-0000
The Company or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; upon receipt, if deposited in the mail, postage
prepaid; when answered back, if telexed; when receipt acknowledged, if
telecopied; and the next
73
75
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery. All notices and communications to the
Trustee shall be deemed to have been duly given only if actually received by the
Trustee.
Any notice or communication to a Holder shall be mailed
by first-class mail, certified or registered, return receipt requested, to his
address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If a notice communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at the same time.
Section 11.3. Communication by Holders with Other Holders
Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and any other person shall have
the protection of TIA Section 312(c).
Section 11.4. Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall furnish to
the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 11.5) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have
been complied with; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 11.5) stating that, in the opinion
of such counsel, all such conditions precedent and covenants have
been complied with.
74
76
Section 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall include:
(a) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with,
provided that with respect to matters of fact, an Opinion of Counsel may rely
upon an Officers' Certificate or a certificate of a public official.
Section 11.6. Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or
at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 11.7. Legal Holidays
If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 11.8. No Recourse Against Others
No director, officer, employee, incorporator,
stockholder or controlling person of the Company, as such, shall have any
liability for any obligations of
75
77
the Company under the Notes, this Indenture or the Registration Rights Agreement
or for any claim based on, in respect of, or by reason of such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release shall be part of the consideration for the
issuance of the Notes. Notwithstanding the foregoing, nothing in this provision
shall be construed as a waiver or release of any claims under the Federal
securities laws.
Section 11.9. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND THE
RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. THE COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE COMPANY AT ITS ADDRESS SET FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PURCHASER
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
76
78
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
Section 11.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its Subsidiaries. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 11.11. Successors
All agreements of the Company in this Indenture and the
Notes shall bind their respective successors. All agreements of the Trustee in
this Indenture shall bind its successor.
Section 11.12. Severability
In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 11.13. Counterpart Originals
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 11.14. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and
Headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms or provisions hereof.
77
79
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Indenture as of the date first written
above.
XXXXX MATERIAL HANDLING
COMPANY
Attest: By: /s/ Xxxxxx X. Xxxxx
_________________________
Name: Xxxxxx X. Xxxxx
Title: President and CEO
___________________________
Name:
Title:
U.S. TRUST COMPANY OF
TEXAS, N.A.,
as Trustee
Attest:
By: /s/ Xxxx Xxxxxxxx
________________________
Name: Xxxx Xxxxxxxx
Title: Vice President
/s/ Xxxxx X. Xxxxx
___________________________
Name: Xxxxx X. Xxxxx
Title: Vice President
S-1
80
EXHIBIT A
XXXXX MATERIAL HANDLING COMPANY
13% SUBORDINATED NOTE
DUE 2007
NO. $___________
CUSIP NO.
XXXXX Material Handling Company, a Delaware corporation
(the "Company"), as obligor, for value received promises to pay to
______________ or registered assigns, the principal sum of [ ] Dollars on July
15, 2007. Interest Payment Dates: January 15 and July 15 and on the maturity
date. Record Dates: January 1 and July 1 (whether or not a Business Day).
Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to
be signed manually or by facsimile by its duly authorized officers.
Dated:
XXXXX Material Handling Company
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
Trustee's Certificate of Authentication:
This is one of the Notes referred to
in the within-mentioned Indenture:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By:______________________________
Authorized Signature
A-1
81
(Back of Security)
13% SUBORDINATED NOTE
DUE JULY 15, 2007
1. Interest. XXXXX Material Handling Company, a Delaware
corporation (the "Company"), as obligor, promises to pay interest on the
principal amount of this Note at the rate and in the manner specified below.
The Company shall pay, in cash, interest on the
principal amount of this Note, at the rate of 13% per annum. The Company shall
pay interest semi-annually on January 15 and July 15 of each year, and on the
maturity date, commencing on [____________] or if any such day is not a Business
Day, on the next succeeding Business Day (each an "Interest Payment Date"). On
or before July 15, 2003, the Company may, at its option, pay interest in cash or
in additional Notes having an aggregate principal amount equal to the amount of
such interest. After July 15, 2003, interest may be paid in cash only.
Interest shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. Interest shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from [_______________]. To the extent lawful, the Company shall pay interest on
overdue principal at the rate of 1% per annum in excess of the then applicable
interest rate on the Notes; the Company shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) at the
same rate to the extent lawful.
2. Method of Payment. The Company shall pay interest on
the Notes (except defaulted interest) to the Persons who are registered Holders
of Notes at the close of business on the record date next preceding the Interest
Payment Date, even if such Notes are cancelled after such record date and on or
before such Interest Payment Date. The Holder must surrender this Note to a
Paying Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
principal and interest by check to a Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee
shall act as Paying Agent and Registrar. The Company may change any Paying
Agent, Registrar or co-registrar without notice to any Holder. Subject to
certain exceptions, the Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture. The Company issued the Notes under an
Indenture dated as of July 17, 1998 (the "Indenture") between the Company and
the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(the "TIA") (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date
of the Indenture until such time as the Indenture is qualified under the TIA and
thereafter as in effect on the date the Indenture is so qualified. The Notes are
subject to all such terms, and Holders are referred to the Indenture and such
act for a statement of such terms. The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Notes. Terms not otherwise defined
herein shall have the meanings assigned in the Indenture. The Notes are limited
to $40,000,000 in aggregate principal amount.
5. Optional Redemption. The Notes are not redeemable at
the Company's option prior to July 15, 2003. Thereafter, the Notes will be
subject to redemption at the option of the Company, in whole or in part, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest thereon, if any, to the applicable redemption
date, if redeemed during the 12-month period beginning on July 15 of the years
indicated below:
A-2
82
Year Percentage
---- ----------
2003................................ 106.500%
2004................................ 104.333
2005................................ 102.167
2006 and thereafter................. 100.000
Notwithstanding the foregoing, at any time or from time
to time prior to July 15, 2003, the Company may, at its option, redeem the Notes
in whole, but not in part, at a redemption price of 115% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the applicable redemption
date, with the net cash proceeds of one or more Public Equity Offerings;
provided that such redemption shall occur within 60 days of the date of closing
of such Public Equity Offering.
6. Mandatory Redemption. There shall be no mandatory
redemption of the Notes.
7. Denominations, Transfer, Exchange. The Notes, other
than Notes issued as payment pursuant to Section 1, are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar and the Company need not exchange or
register the transfer (i) of any Note or portion of a Note selected for
redemption or (ii) of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
8. Persons Deemed Owners. The registered Holder of a
Note may be treated as its owner for all purposes, subject to the provisions of
the Indenture with respect to the record dates for the payment of interest.
9. Amendments and Waivers. Subject to certain
exceptions, the Indenture or the Notes may be amended with the written consent
of the Holders of at least a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for Notes), and any existing Default or Event of Default
(except a payment default) may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for Notes). Without
the consent of any Holders, the Indenture and the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
assumption of the Company's obligations to the Holders in the case of a merger
or consolidation, to provide for uncertificated Notes in addition to or in place
of certificated Notes, to make any change that would provide any additional
rights or benefits to the Holders of the Notes, or that does not adversely
affect the legal rights of any Holder, or to comply with requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the TIA.
10. Defaults and Remedies. If an Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately, except that in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes become due and
payable immediately without further action or notice. Holders may not enforce
the Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in principal amount
of the then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Company must furnish an annual compliance certificate to the
Trustee.
X-0
00
00. Ranking. Payment of principal and interest on the
Notes by the Company is subordinated, in the manner and to the extent set forth
in the Indenture, to the prior payment of all Senior Indebtedness.
12. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not Trustee.
13. No Recourse Against Others. No director, officer,
employee, incorporator, stockholder or controlling person of the Company, as
such, shall have any liability for any obligations of the Company under the
Notes, the Indenture or the Registration Rights Agreement or for any claim based
on, in respect of, or by reason of such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the Notes.
Notwithstanding the foregoing, nothing in this provision shall be construed as a
waiver or release of any claims under the Federal securities laws.
14. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
15. Abbreviations. Customary abbreviations may be used
in the name of a Holder or an assignee, such as: TEN COM (= tenants in common),
TENENT (= 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).
16. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes and have directed
the Trustee to use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
The Company shall furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to:
XXXXX Material Handling Company, 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: Chief Executive Officer.
A-4
84
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint______________________________ agent to transfer this
Note on the books of the Company. The agent may substitute another to act for
him.
Date:____________________
Your Signature:____________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*
________________
* NOTICE: The signature must be guaranteed by an institution which
is a member of one of the following recognized signature
guarantee programs:
(1) The Securities Transfer Agent Medallian
Program (STAMP);
(2) The New York Stock Exchange Medallian
Program (MSP);
(3) The Stock Exchange Medallian Program
(SEMP).
A-5
85
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased
by the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, as the
case may be, state the amount you elect to have purchased (if all, write "ALL"):
$______________
Date:__________________________
Your Signature:_________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*
______________
* NOTICE: The signature must be guaranteed by an institution which
is a member of one of the following recognized signature
guarantee programs:
(1) The Securities Transfer Agent Medallian
Program (STAMP);
(2) The New York Stock Exchange Medallian
Program (MSP);
(3) The Stock Exchange Medallian Program
(SEMP).
A-6
86
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
----------- -----------------
310(a)(1)................................................................................................................7.10
(a)(2)................................................................................................................7.10
(a)(3).................................................................................................................N.A.
(a)(4).................................................................................................................N.A.
(a)(5)................................................................................................................7.10
(b)...................................................................................................................7.8; 7.10
(c)...................................................................................................................N.A.
311(a)...................................................................................................................7.11
(b)...................................................................................................................7.11
(c)....................................................................................................................N.A.
312(a)....................................................................................................................2.5
(b)...................................................................................................................11.3
(c)...................................................................................................................11.3
313(a)...................................................................................................................7.6
(b)(1)................................................................................................................7.6
(b)(2)................................................................................................................7.6
(c)...................................................................................................................7.6
(d)...................................................................................................................7.6
314(a)....................................................................................................................4.3; 4.4
(b)....................................................................................................................N.A
(c)(1)................................................................................................................11.4
(c)(2)................................................................................................................11.4
(c)(3).................................................................................................................N.A.
(d)....................................................................................................................N.A.
(e)...................................................................................................................11.5
(f)....................................................................................................................N.A.
315(a)...................................................................................................................7.1(2)
(b)...................................................................................................................7.5
(c)...................................................................................................................7.1(1)
(d)...................................................................................................................7.1(3)
(e)...................................................................................................................6.11
316(a)(last sentence)....................................................................................................2.9
(a)(1)(A).............................................................................................................6.5
(a)(1)(B).............................................................................................................6.4
(a)(2).................................................................................................................N.A.
(b)...................................................................................................................9.2
(c)...................................................................................................................9.4
317(a)(1)................................................................................................................6.8
(a)(2)................................................................................................................6.9
(b)...................................................................................................................2.4
318(a)...................................................................................................................11.1
(b)...................................................................................................................N.A.
(c)...................................................................................................................11.1
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
87
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.1. Definitions 1
Section 1.2. Other Definitions 16
Section 1.3. Incorporation by Reference of Trust Indenture Act 16
Section 1.4. Rules of Construction. 17
ARTICLE 2 THE NOTES 17
Section 2.1. Form and Dating 17
Section 2.2. Execution and Authentication 18
Depository 18
Section 2.4. Paying Agent to Hold Money in Trust 19
Section 2.5. Holder Lists 19
Section 2.6. Transfer and Exchange 20
Section 2.7. Replacement Notes 20
Section 2.8. Outstanding Notes 21
Section 2.9. Treasury Notes 21
Section 2.10. Temporary Notes. 21
Section 2.11. Cancellation 22
Section 2.12. Defaulted Interest 23
ARTICLE 3 REDEMPTION 23
Section 3.1. Notices to Trustee 23
Section 3.2. Selection of Notes to Be Redeemed. 23
Section 3.3. Notice of Redemption 24
Section 3.4. Effect of Notice of Redemption 25
Section 3.5. Deposit of Redemption Price 25
Section 3.6. Notes Redeemed in Part 25
Section 3.7. Optional Redemption 26
COVENANTS 26
Section 4.1. Payment of Notes 26
Section 4.2. Maintenance of Office or Agency 27
Section 4.3. Reports 28
Section 4.4. Compliance Certificate 29
Section 4.5. Taxes 30
Section 4.6. Stay, Extension and Usury Laws 30
Section 4.7. Limitation on Restricted Payments 30
Section 4.8. Limitation on Restrictions on Subsidiary Dividends 34
Section 4.9. [Intentionally Left Blank] 35
Section 4.10. Limitation on Asset Sales 35
Section 4.11. Limitation on Transactions With Affiliates 38
Section 4.12. [Intentionally Left Blank] 39
Section 4.13. Corporate Existence 39
i
88
Section 4.14. Repurchase Upon a Change of Control 40
Section 4.15. Maintenance of Properties 42
Section 4.16. Maintenance of Insurance 42
Section 4.17. Restrictions on Sale and
Issuance of Subsidiary Stock 42
Section 4.18. Line of Business 43
ARTICLE 5 SUCCESSORS 43
Section 5.1. When the Company May Merge, etc. 43
Section 5.2. Successor Substituted 44
ARTICLE 6 DEFAULTS AND REMEDIES 45
Section 6.1. Events of Default 45
Section 6.2. Acceleration 47
Section 6.3. Other Remedies 48
Section 6.4. Waiver of Past Defaults 48
Section 6.5. Control by Majority 49
Section 6.6. Limitation on Suits 49
Section 6.7. Rights of Holders to Receive Payment 49
Section 6.8. Collection Suit by Trustee 50
Section 6.9. Trustee May File Proofs of Claim 50
Section 6.10. Priorities 51
Section 6.11. Undertaking for Costs 51
ARTICLE 7 TRUSTEE 52
Section 7.1. Duties of Trustee 52
Section 7.2. Rights of Trustee 53
Section 7.3. Individual Rights of Trustee 54
Section 7.4. Trustee's Disclaimer 54
Section 7.5. Notice of Defaults 54
Section 7.6. Reports by Trustee to Holders 54
Section 7.7. Compensation and Indemnity 55
Section 7.8. Replacement of Trustee 56
Section 7.9. Successor Trustee by Merger, etc. 57
Section 7.10. Eligibility; Disqualification 57
Section 7.11. Preferential Collection of Claims Against Company 58
ARTICLE 8 DISCHARGE OF INDENTURE 58
Section 8.2. Application of Trust Money. 60
ARTICLE 9 AMENDMENTS 61
Section 9.1. Without Consent of Holders 61
Section 9.2. With Consent of Holders 62
Section 9.3. Compliance with Trust Indenture Act 64
Section 9.4. Revocation and Effect of Consents 64
Section 9.5. Notation on or Exchange of Notes 64
Section 9.6. Trustee to Sign Amendments, etc. 65
Section 9.7. Amendments and Supplements Requiring Consent Of
Holders Of Senior Indebtedness 65
ii
89
ARTICLE 10 SUBORDINATION 65
ARTICLE 11 MISCELLANEOUS 73
Section 11.1. Trust Indenture Act Controls 73
Section 11.2. Notices 73
Section 11.3. Communication by Holders with Other Holders 74
Section 11.4. Certificate and Opinion as to Conditions Precedent 74
Section 11.6. Rules by Trustee and Agents 75
Section 11.7. Legal Holidays 75
Section 11.8. No Recourse Against Others 75
Section 11.9. Governing Law 76
Section 11.11. Successors 77
Section 11.12. Severability 77
Section 11.13. Counterpart Originals 77
Section 11.14. Table of Contents, Headings, etc. 77
iii
90
Page
iv
91
Page
v
92
Page
vi
93
Page
SIGNATURES
EXHIBIT A - FORM OF NOTE....................................... A-1
EXHIBIT B - CERTIFICATE OF TRANSFEROR.......................... B-1
vii
