Exhibit 4.1
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NAVISTAR FINANCIAL CORPORATION,
as Issuer
and
THE FUJI BANK AND TRUST COMPANY,
as Trustee
____________________
INDENTURE
Dated as of May 30, 1997
____________________
$100,000,000
9% Senior Subordinated Notes due 2002
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CROSS-REFERENCE TABLE
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TIA Indenture
Section Section
------- ---------
(S)310(a)(1)............................................. 7.10
(a)(2)............................................. 7.10
(a)(3)............................................. N.A.
(a)(4)............................................. N.A.
(a)(5)............................................. 7.10
(b)................................................ 7.8; 7.10; 10.2
(c)................................................ N.A.
(S)311(a)................................................ 7.11
(b)................................................ 7.11
(c)................................................ N.A.
(S)312(a)................................................ 2.5
(b)................................................ 10.3
(c)................................................ 10.3
(S)313(a)................................................ 7.6
(b)(1)............................................. 7.6
(b)(2)............................................. 7.6
(c)................................................ 7.6; 10.2
(d)................................................ 7.6
(S)314(a)................................................ 4.6; 4.7; 10.2
(b)................................................ N.A.
(c)(1)............................................. 10.4
(c)(2)............................................. 10.4
(c)(3)............................................. 10.4
(d)................................................ N.A.
(e)................................................ 10.5
(f)................................................ N.A.
(S)315(a)................................................ 7.1(b)
(b)................................................ 7.5; 10.2
(c)................................................ 7.1(a)
(d)................................................ 7.1(c)
(e)................................................ 6.11
(S)316(a) (last sentence)................................ 2.9
(a)(1)(A).......................................... 6.5
(a)(1)(B).......................................... 6.4
(a)(2)............................................. N.A.
(b)................................................ 6.6, 6.7
(c)................................................ 9.4
(S)317(a)(1)............................................. 6.8
(a)(2)............................................. 6.9
(b)................................................ 2.4
(S)318(a)................................................ 10.1
(c).......................... 10.1
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions...................................................1
SECTION 1.2 Incorporation by Reference of Trust Indenture Act............28
SECTION 1.3 Rules of Construction........................................29
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating..............................................30
SECTION 2.2 Execution and Authentication.................................32
SECTION 2.3 Registrar and Paying Agent...................................33
SECTION 2.4 Paying Agent To Hold Money in Trust..........................34
SECTION 2.5 Securityholder Lists.........................................34
SECTION 2.6 Transfer and Exchange........................................34
SECTION 2.7 Replacement Securities.......................................47
SECTION 2.8 Temporary Securities.........................................48
SECTION 2.9 Cancellation.................................................49
SECTION 2.10 Defaulted Interest...........................................49
SECTION 2.11 CUSIP or CINS Number.........................................51
SECTION 2.12 Payments of Interest.........................................51
ARTICLE III
[RESERVED]
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities........................................52
SECTION 4.2 Maintenance of Office or Agency..............................53
SECTION 4.3 Corporate Existence..........................................53
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SECTION 4.4 Payment of Taxes and Other Claims........................... 54
SECTION 4.5 Maintenance of Properties;
Insurance; Books and Records;
Compliance with Law...................................... 54
SECTION 4.6 Compliance Certificates..................................... 55
SECTION 4.7 Reports..................................................... 57
SECTION 4.8 Maintenance of Consolidated Fixed
Charge Coverage Ratio.................................... 58
SECTION 4.9 Limitation on Indebtedness.................................. 58
SECTION 4.10 Waiver of Stay, Extension or Usury
Laws..................................................... 59
SECTION 4.11 Change of Control........................................... 60
SECTION 4.12 Limitation on Transactions with
Affiliates............................................... 62
SECTION 4.13 Limitation on Liens......................................... 63
SECTION 4.14 Limitation on Payment Restrictions
Affecting Subsidiaries................................... 65
SECTION 4.15 Limitation on Guarantees by
Subsidiaries............................................. 65
SECTION 4.16 Limitation on Senior Subordinated
Indebtedness............................................. 67
SECTION 4.17 Limitation on Termination of Master
Intercompany Agreement................................... 68
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 Merger, Consolidation, Etc.................................. 68
SECTION 5.2 Successor Entity Substituted................................ 71
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default........................................... 72
SECTION 6.2 Acceleration................................................ 75
SECTION 6.3 Other Remedies.............................................. 76
SECTION 6.4 Waiver of Past Default...................................... 76
SECTION 6.5 Control by Majority......................................... 77
SECTION 6.6 Limitation on Suits......................................... 77
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SECTION 6.7 Rights of Holders To Receive
Payment.................................................. 78
SECTION 6.8 Collection Suit by Trustee.................................. 78
SECTION 6.9 Trustee May File Proofs of Claim............................ 78
SECTION 6.10 Priorities.................................................. 79
SECTION 6.11 Undertaking for Costs....................................... 80
SECTION 6.12 Rights and Remedies Cumulative.............................. 80
SECTION 6.13 Delay or Omission Not Waiver................................ 80
SECTION 6.14 Restoration of Rights and Remedies.......................... 81
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee........................................... 81
SECTION 7.2 Rights of Trustee........................................... 83
SECTION 7.3 Individual Rights of Trustee................................ 84
SECTION 7.4 Trustee's Disclaimer........................................ 84
SECTION 7.5 Notice of Defaults.......................................... 84
SECTION 7.6 Reports by Trustee to Holders............................... 85
SECTION 7.7 Compensation and Indemnity.................................. 85
SECTION 7.8 Replacement of Trustee...................................... 86
SECTION 7.9 Successor Trustee by Merger, Etc............................ 88
SECTION 7.10 Eligibility; Disqualification............................... 88
SECTION 7.11 Preferential Collection of Claims
Against Company.......................................... 88
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.1 Termination of the Company's
Obligations.............................................. 89
SECTION 8.2 Legal Defeasance and Covenant
Defeasance............................................... 91
SECTION 8.3 Application of Trust Money.................................. 97
SECTION 8.4 Repayment to Company or Subsidiary
Guarantors............................................... 97
SECTION 8.5 Reinstatement............................................... 98
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders................................. 98
SECTION 9.2 With Consent of Holders.................................... 99
SECTION 9.3 Compliance with Trust Indenture
Act..................................................... 101
SECTION 9.4 Revocation and Effect of Consents.......................... 101
SECTION 9.5 Notation on or Exchange of
Securities.............................................. 102
SECTION 9.6 Trustee to Sign Amendments, Etc............................ 103
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act Controls............................... 103
SECTION 10.2 Notices.................................................... 103
SECTION 10.3 Communications by Holders with
Other Holders........................................... 105
SECTION 10.4 Certificate and Opinion of Counsel
as to Conditions Precedent.............................. 105
SECTION 10.5 Statements Required in Certificate
and Opinion of Counsel.................................. 106
SECTION 10.6 Rules by Trustee, Paying Agent,
Registrar............................................... 106
SECTION 10.7 Legal Holidays............................................. 106
SECTION 10.8 Governing Law.............................................. 107
SECTION 10.9 No Recourse Against Others................................. 107
SECTION 10.10 Successors................................................. 107
SECTION 10.11 Counterparts............................................... 107
SECTION 10.12 Severability............................................... 107
SECTION 10.13 Table of Contents, Headings, Etc........................... 108
SECTION 10.14 No Adverse Interpretation of Other
Agreements.............................................. 108
SECTION 10.15 Benefits of Indenture...................................... 108
SECTION 10.16 Independence of Covenants.................................. 108
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ARTICLE XI
SUBORDINATION OF SECURITIES
SECTION 11.1 Agreement to Subordinate.................................... 109
SECTION 11.2 Subrogation................................................. 112
SECTION 11.3 Relative Rights............................................. 113
SECTION 11.4 Trustee To Effectuate
Subordination............................................ 114
SECTION 11.5 Trustee Not Fiduciary for Holders
of Senior Indebtedness of the
Company.................................................. 114
SECTION 11.6 Notice by Company........................................... 114
SECTION 11.7 Rights of Trustee........................................... 115
SECTION 11.8 Company May Not Impair
Subordination............................................ 115
SECTION 11.9 Rights of Paying Agent...................................... 115
SIGNATURES ................................................................ S-1
EXHIBIT A - Form of Security
EXHIBIT B - Terms of Subsidiary Guarantee
EXHIBIT C - Form of Subsidiary Guarantee
EXHIBIT D Form of Certificate of Transfer
EXHIBIT E Form of Certificate of Exchange
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INDENTURE dated as of May 30, 1997, between NAVISTAR FINANCIAL
CORPORATION, a Delaware corporation, as Issuer (the "Company"), and THE FUJI
BANK AND TRUST COMPANY, as Trustee (the "Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the 9% Senior Subordinated Notes due
June 1, 2002 of the Company (the "Securities") to be issued as provided for in
this Indenture. All things necessary to make the Securities, when duly issued
and executed by the Company and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid, binding
agreement of the Company, in accordance with their respective terms, have been
done.
The parties hereto agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
------------------------------------------
SECTION 1.1 Definitions.
"Acquired Indebtedness" of any specified Person means Indebtedness of
any other Person and its Subsidiaries existing at the time such other Person
merged with or into or became a Subsidiary of such specified Person or assumed
by the specified Person in connection with the acquisition of assets from such
other Person including, without limitation, Indebtedness of such other Person
and its Subsidiaries incurred by the specified Person in connection with or in
anticipation of (a) such other Person and its Subsidiaries being merged with or
into or becoming a Subsidiary of such specified Person or (b) such acquisition
by the specified Person.
"Additional Interest" shall have the meaning set forth in the
Registration Rights Agreement.
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"Affiliate" means, when used with reference to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, the referent Person, as the case may be. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct or cause the direction of management or
policies of the referent Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative of the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar. See
Section 2.3.
"Applicable Procedures" means with respect to any transfer or exchange
of interests in a Global Security, the rules and procedures of DTC, Euroclear or
Cedel that apply to such transfer or exchange.
An "Associate" of, or a Person "associated" with, any Person means (i)
any trust or other estate in which such Person has a substantial beneficial
interest or as to which such Person serves as trustee or in a similar fiduciary
capacity and (ii) any relative or spouse of such Person, or any relative of such
spouse, who has the same home as such Person.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar
Federal or state law for the relief, reorganization, adjustment or recomposition
of debtors.
"Board of Directors" means with respect to any Person, the Board of
Directors of such Person or any committee of such Board of Directors authorized
to act for it hereunder.
"Business Day" means any day except a Saturday, a Sunday or any day on
which banking institutions in either New York City, New York or Chicago,
Illinois are required or authorized by law or other governmental action to be
closed.
"Capitalized Lease Obligation" means obligations under a lease that
are required to be classified and accounted
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for as capital lease obligations under GAAP and, for purposes of this Indenture,
the amount of such obligations at any date shall be the capitalized amount of
such obligations at such date, determined in accordance with GAAP. The Stated
Maturity of such obligation shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without penalty.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however designated
and whether voting or non-voting) of, such Person's capital stock, including
each class of Common or Preferred Stock of such Person, whether outstanding on
the Issue Date or issued after the Issue Date, and any and all rights, warrants
or options exchangeable for or convertible into such capital stock.
"Change of Control" means the occurrence of one or more of the
following events: (i) any "person" or "group" (as such terms are used in
Section 13(d) and 14(d) of the Exchange Act), other than employee or retiree
benefit plans or trusts sponsored or established by the Company or
Transportation, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of (A) securities of Navistar
representing 25% or more of the combined voting power of Navistar's then
outstanding Voting Stock, (B) securities of the Company representing 49% or more
of the combined voting power of the Company's then outstanding Voting Stock or
(C) securities of Transportation representing 50% or more of the combined voting
power of Transportation's then outstanding Voting Stock; (ii) the following
individuals cease for any reason to constitute more than three-fourths of the
number of directors then serving on the Board of Directors of Navistar:
individuals who, on the date hereof, constitute the Board of Directors and any
new director (other than a director whose initial assumption of the office is in
connection with an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of directors of
Navistar) whose appointment or election by the Board of
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Directors or nomination for election by the Company's stockholders was approved
by the vote of at least two-thirds (2/3) of the directors then still in office
or whose appointment, election or nomination was previously so approved or
recommended; (iii) the shareholders of Navistar, of Transportation or of the
Company shall approve any Plan of Liquidation (whether or not otherwise in
compliance with the provisions of this Indenture); or (iv) the Company
consolidates with or merges with or into another Person, or the Company or any
Subsidiary of the Company, directly or indirectly, sells, assigns, conveys,
transfers, leases or otherwise disposes of, in one transaction or a series of
related transactions, all or substantially all of the property or assets of the
Company and the Subsidiaries of the Company (determined on a consolidated basis)
to any Person, or any Person consolidates with, or merges with or into, the
Company, in any such event pursuant to a transaction in which the outstanding
Voting Stock of the Company is converted into or exchanged for cash, securities
or other property, and, as a result of which, neither Navistar nor
Transportation has "beneficial ownership" (as set forth above), directly or
indirectly, of at least 50% (fifty percent) of the combined voting power of the
then outstanding Voting Stock of the surviving or transferee corporation,
provided that neither (x) the merger of a Subsidiary of the Company into the
Company or into any Wholly Owned Subsidiary of the Company nor (y) a series of
transactions involving the sale of Receivables or interests therein in the
ordinary course of business by the Company or a Securitization Subsidiary in
connection with a Qualified Securitization Transaction, shall be deemed to be a
Change of Control.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Subsidiaries of the
Company, the Capital Stock of which constitutes all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
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"Cedel" means Cedel Bank, societe anonyme.
"Change of Control Date" has the meaning provided in Section 4.11.
"Change of Control Offer" has the meaning provided in Section 4.11.
"Change of Control Payment Date" has the meaning provided in Section
4.11.
"Change of Control Triggering Event" means the occurrence of both (a)
a Change of Control and (b) a Ratings Event.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and,
thereafter, means the successor.
"Consolidated EBITDA" for any Person means, for any period for which
it is to be determined, the sum of, without duplication, the amounts for such
period, taken as a single accounting period, of (i) Consolidated Net Income of
such Person and its Consolidated Subsidiaries for such period; (ii) cash
payments made to the Company during such period or within 30 days after such
period by Navistar or Transportation pursuant to the Amended and Restated
Parents' Side Agreement, as amended
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and restated as of November 4, 1994, among the Company, Navistar and
Transportation or any other similar agreement; and (iii) only to the extent
Consolidated Net Income has been reduced thereby, (A) Consolidated Tax Expense
of such Person and its Consolidated Subsidiaries for such period; (B)
Consolidated Interest Expense of such Person for such period; and (C) all
depreciation and amortization expense (including, without limitation,
amortization of capitalized debt issuance costs) and other non-cash expenses
(other than any non-cash item which requires the accrual of or a reserve for
cash charges for any future period and other than any non-cash charge
constituting an extraordinary item of loss) of such Person and its Consolidated
Subsidiaries for such period, less the amount of consolidated non-cash items
increasing Consolidated Net Income for such period, all as determined on a
consolidated basis in conformity with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
Person, the ratio of (a) the aggregate amount of Consolidated EBITDA of such
Person for the four full Fiscal Quarters ending on or immediately prior to the
date of measurement (such four full fiscal quarter period being referred to
herein as the "Four Quarter Period") to (b) the aggregate Consolidated Fixed
Charges of such Person for such Four Quarter Period.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum of, without duplication, the amounts for such period, taken as a
single accounting period, of (i) Consolidated Interest Expense; and (ii) the
product of (x) the amount of all dividend requirements (whether or not declared)
on Preferred Stock of such Person, whether in cash or otherwise (except
dividends payable in shares of Common Stock) paid, accrued or scheduled to be
paid or accrued during such period times (y) a fraction, the numerator of which
is one and the denominator of which is one minus the then current effective
consolidated Federal, state, local and foreign tax rate (expressed as a decimal
number between 1 and 0) of such Person (as reflected in the audited consolidated
financial statements of such Person for the most recently completed fiscal
year).
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"Consolidated Interest Expense" means, with respect to any Person for
any period, the aggregate of the interest expense (without deduction of interest
income) of such Person for such period, on a consolidated basis, as determined
in accordance with GAAP, including (a) all amortization of original issue
discount; (b) the interest component of Capitalized Lease Obligations paid,
accrued and/or scheduled to be paid or accrued by such Person during such
period; (c) net cash costs under all Interest Rate Protection Agreements
(including amortization of fees); (d) all capitalized interest; (e) the interest
portion of any deferred payment obligations for such period; and (f) 25%
(twenty-five percent) of the amount of all lease payments (other than
Capitalized Lease Obligations) paid, accrued and/or scheduled to be paid or
accrued by such Person during such period, provided that all amortization of
debt issuance costs shall be excluded in calculating Consolidated Interest
Expense.
"Consolidated Net Income" means, with respect to any Person for any
period, the consolidated net income (or deficit) of such Person and its
Consolidated Subsidiaries for such period, on a consolidated basis, as
determined in accordance with GAAP, provided that the net income of any other
Person in which the referent Person or any Subsidiary of the referent Person has
a joint interest with a third party (which interest does not cause the net
income of such other Person to be consolidated into the net income of the
referent Person in accordance with GAAP) shall be included only to the extent of
the amount that has been actually received by the referent Person or a
Subsidiary of the referent Person in the form of cash dividends or similar cash
distributions, and provided, further, that there shall be excluded (i) the net
income of any Person acquired in a "pooling of interests" transaction accrued
prior to the date it became a Subsidiary of the referent Person or is merged
into or consolidated with the referent Person or any Subsidiary of the referent
Person; (ii) any restoration to income of any contingency reserve, except to the
extent that provision for such reserve was made out of Consolidated Net Income
accrued at any time following the Issue Date; (iii) any gain or loss, together
with any related provisions for taxes, realized
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upon the sale or other disposition (including, without limitation, dispositions
pursuant to sale-leaseback transactions) of any property or assets which are not
sold or otherwise disposed of in the ordinary course of business (provided that
sales of Receivables or interests therein pursuant to Qualified Securitization
Transactions shall be deemed to be in the ordinary course of business) and upon
the sale or other disposition of any Capital Stock of any Subsidiary of the
referent Person; (iv) any extraordinary gain or extraordinary loss together with
any related provision for taxes and any one time gains or losses (including,
without limitation, those related to the adoption of new accounting standards)
realized by the referent Person or any of its Subsidiaries during the period for
which such determination is made; (v) income or loss attributable to
discontinued operations (including, without limitation, operations disposed of
during such period whether or not such operations were classified as
discontinued); and (vi) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's assets, any
earnings of the successor corporation prior to such consolidation, merger or
transfer of assets.
"Consolidated Stockholders' Equity" as of any date means with respect
to any Person the amount, determined in accordance with GAAP, by which the
assets of such Person and of its Wholly Owned Subsidiaries on a consolidated
basis exceed (a) the total liabilities of such Person and of its Wholly Owned
Subsidiaries on a consolidated basis, plus (b) any redeemable Preferred Stock of
such Person.
"Consolidated Subsidiary" of any Person means a Subsidiary which for
financial reporting purposes is or, in accordance with GAAP, should be,
accounted for by such Person as a consolidated Subsidiary.
"Consolidated Tangible Net Worth" of a Person at any date means the
sum of (1) Consolidated Stockholders' Equity of such Person plus (2) such
Person's interest (proportionate to its equity interest) in the net worth of any
Person other than a Wholly Owned Subsidiary of the referent Person as of the
date in question, less (a) any revaluation or other write-ups subse-
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quent to the Issue Date in the book value of any asset owned by such Person or
any Subsidiary of such Person; (b) any amounts attributable to the cost of
treasury stock and the principal amount of any promissory notes receivable from
the sale of Capital Stock of such Person or of any of its Subsidiaries; and (c)
all unamortized debt discount and expense, unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade names, copyrights, and other
intangible assets of such Person and its Subsidiaries.
"Consolidated Tax Expense" means, with respect to any Person for any
period, the aggregate of the U.S. Federal, state and local tax expense
attributable to taxes based on income and foreign income tax expenses of such
Person and its Consolidated Subsidiaries for such period (net of any income tax
benefit) payable with respect to such period pursuant to the Tax Allocation
Agreement or, if the Tax Allocation Agreement is no longer in effect or does not
apply to any such tax, determined in accordance with GAAP other than taxes
(either positive or negative) attributable to extraordinary or unusual gains or
losses or taxes attributable to sales or dispositions of assets.
"Credit Agreement" means the Amended and Restated Credit Agreement
dated as of November 4, 1994 among the Company, the banks referred to therein
and Bank of America Illinois (formerly known as Continental Bank, N.A.), Bank of
Nova Scotia, The Chase Manhattan Bank (formerly known as Chemical Bank), Xxxxxx
Guaranty Trust Company of New York and NationsBank, N.A., as co-arrangers, and
any refinancing, extension, renewal, modification, restatement or replacement
thereof (in whole or in part, and without limitation as to terms, conditions,
covenants and other provisions), as the same may be amended, supplemented or
otherwise modified from time to time.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any of its Subsidiaries against fluctuations in currency values to or
under which the Company or any of its Subsidiaries is a party or a
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beneficiary on the date of this Indenture or becomes a party or a beneficiary
thereafter.
"Custodian" has the meaning provided in Section 6.1(b).
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.10.
"Disqualified Capital Stock" means any Capital Stock that, other than
solely at the option of the issuer thereof, by its terms (or by the terms of any
security into which it is convertible or exchangeable) is, or upon the happening
of an event or the passage of time would be, required to be redeemed or
repurchased, in whole or in part, prior to the first anniversary of the Maturity
Date or has, or upon the happening of an event or the passage of time would
have, a redemption or similar payment due on or prior to the first anniversary
of the Maturity Date, or is convertible into or exchangeable for debt securities
at the option of the holder thereof at any time prior to the first anniversary
of the Maturity Date.
"DTC" means The Depository Trust Company or its successors.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York (Brussels
Office) as operator of the Euroclear system.
"Event of Default" has the meaning provided in Section 6.1(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Registration Statement" shall have the meaning set forth in
the Registration Rights Agreement.
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"Fiscal Quarter" means any quarter in any Fiscal Year, the duration of
such quarter being defined in accordance with GAAP.
"Fiscal Year" means a fiscal year of the Company and its Subsidiaries.
On the date of this Indenture the fiscal year of the Company and its
Subsidiaries ends October 31 of each year.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Issue Date.
"Global Security" means the global security, without coupons,
representing all or a portion of the Securities deposited with DTC substantially
in the form of Exhibit A attached hereto.
"guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term "guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "guarantee" used as a verb has a corresponding meaning.
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"Guarantor Senior Indebtedness" means any guarantee incurred by a
Subsidiary Guarantor in accordance with this Indenture of Senior Indebtedness of
the Company incurred in accordance with this Indenture, whether such
Indebtedness is outstanding on the Issue Date or thereafter, provided that
Guarantor Senior Indebtedness expressly shall not include: (i) any Indebtedness
of such Subsidiary Guarantor whether outstanding on the Issue Date or thereafter
incurred that is, pursuant to its terms or the terms of any agreement relating
thereto, subordinated or junior to any other Indebtedness of such Subsidiary
Guarantor; (ii) any Indebtedness of such Subsidiary Guarantor whether
outstanding on the Issue Date or thereafter incurred that is, by its terms or
the terms of any agreement relating thereto, pari passu with or subordinated or
junior to such Subsidiary Guarantor's Subsidiary Guarantee; (iii) the Subsidiary
Guarantee of such Subsidiary Guarantor; (iv) any Indebtedness or any other
obligation of such Subsidiary Guarantor to any of such Subsidiary Guarantor's
Subsidiaries or to any of such Subsidiary Guarantor's Affiliates, or to any
joint venture in which such Subsidiary Guarantor has an interest; (v) to the
extent such may be deemed Indebtedness of such Subsidiary Guarantor, any
liability for Federal, state, local, foreign or other taxes owed or owing by
such Subsidiary Guarantor or by any of its Subsidiaries (including pursuant to
the Tax Allocation Agreement); (vi) to the extent such may be deemed
Indebtedness of such Subsidiary Guarantor, obligations of such Subsidiary
Guarantor incurred in connection with the purchase of goods, assets, materials
or services in the ordinary course of business or representing amounts recorded
as accounts payable, trade payables or other current liabilities of such
Subsidiary Guarantor on the books of such Subsidiary Guarantor (other than the
current portion of any long-term Indebtedness of such Subsidiary Guarantor that
but for this clause (vi) would constitute Guarantor Senior Indebtedness of such
Subsidiary Guarantor); (vii) to the extent such may be deemed Indebtedness of
such Subsidiary Guarantor, any amount owed by such Subsidiary Guarantor to
employees for services rendered to such Subsidiary Guarantor or to any of its
Subsidiaries; and (viii) that portion of any Indebtedness which at the time of
incurrence was incurred in violation of this Indenture.
-13-
"Guarantor Senior Representative" means the trustee, agent or
representative of holders of a class of Guarantor Senior Indebtedness who has
been identified in writing to the Trustee and the Subsidiary Guarantor.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise, of
any such Indebtedness or other obligation on the balance sheet of such Person
(and "incurrence," "incurred," "incurrable" and "incurring" shall have meanings
correlative to the foregoing), provided that the accrual of interest (whether
such interest is payable in cash or in kind) and the accretion of original issue
discount shall not be deemed an incurrence of Indebtedness, provided, further,
that (A) any Indebtedness or Capital Stock of a Person existing at the time such
Person becomes (after the Issue Date) a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) of the Company shall be deemed to be
incurred or issued, as the case may be, by such Subsidiary at the time it
becomes a Subsidiary of the Company and (B) any amendment, modification or
waiver of any document pursuant to which Indebtedness was previously incurred
shall not be deemed to be an incurrence of Indebtedness unless and then only to
the extent such amendment, modification or waiver increases the principal or
premium thereof or interest rate thereon (including by way of original issue
discount).
"Indebtedness" means, with respect to any Person, at any date, any of
the following, without duplication, (i) any liability, contingent or otherwise,
of such Person (A) for borrowed money (whether or not the recourse of the lender
is to the whole of the assets of such Person or only to a portion thereof), (B)
evidenced by a note, bond, debenture or similar instrument or letters of credit
(including a purchase money obligation) or (C) for the payment of money relating
to a Capitalized Lease Obligation or other obligation (whether issued or
-14-
assumed) relating to the deferred purchase price of property, but excluding
trade accounts payable of such Person arising in the ordinary course of
business; (ii) all conditional sale obligations and all obligations under any
title retention agreement (even if the rights and remedies of the seller under
such agreement in the event of default are limited to repossession or sale of
such property), but excluding trade accounts payable of such Person arising in
the ordinary course of business; (iii) all obligations for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar credit
transaction entered into in the ordinary course of business; (iv) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien
(other than in connection with property subject to a Qualified Securitization
Transaction) on any asset or property (including, without limitation, leasehold
interests and any other tangible or intangible property) of such Person, whether
or not such Indebtedness is assumed by such Person or is not otherwise such
Person's legal liability, provided that if the obligations so secured have not
been assumed by such Person or are otherwise not such Person's legal liability,
the amount of such Indebtedness for the purposes of this definition shall be
limited to the lesser of the amount of such Indebtedness secured by such Lien or
the fair market value of the assets or property securing such Lien; (v) all
Indebtedness of others (including all dividends of other Persons the payment of
which is) guaranteed, directly or indirectly, by such Person or that is
otherwise its legal liability or which such Person has agreed to purchase or
repurchase or in respect of which such Person has agreed contingently to supply
or advance funds; (vi) all Disqualified Capital Stock issued by such Person with
the amount of Indebtedness represented by such Disqualified Capital Stock being
equal to the greater of its voluntary or involuntary liquidation preference and
its maximum fixed repurchase price, but excluding accrued dividends if any; and
(vii) all obligations under Currency Agreements and Interest Rate Protection
Agreements. For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital
-15-
Stock as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock. The amount of Indebtedness of any Person at any date
shall be the outstanding balance without duplication at such date of all
unconditional obligations as described above and the maximum liability, upon the
occurrence of the contingency giving rise to the obligation, of any contingent
obligations at such date, provided that the amount outstanding at any time of
any Indebtedness issued with original issue discount is the full amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in accordance with
GAAP.
"Indenture" means this Indenture as amended or supplemented from time
to time pursuant to the terms hereof.
"Initial Global Securities" means the Regulation S Global Security and
the 144A Global Security, each of which contains a Securities Act Legend.
"Initial Securities" means the Securities containing a Securities Act
Legend.
"Institutional Accredited Investors" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D promulgated under the Securities Act.
"interest," when used with respect to any Security, means the amount
of all interest accruing on such Security, including all interest accruing
subsequent to the occurrence of any events specified in Sections 6.1(a)(viii)
and (ix) or which would have accrued but for any such event.
-16-
"Interest Payment Date," when used with respect to any Security, means
the stated maturity of an installment of interest specified in such Security.
"Interest Rate," when used with respect to any Security, means the
rate per annum specified in such Security as the rate of interest accruing on
the principal amount of such Security.
"Interest Rate Protection Agreement" means any interest rate
protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate hedge agreement or other similar agreement
or arrangement designed to protect a Person or any Subsidiary against
fluctuations in interest rates to or under which such Person or any Subsidiary
of such Person is a party or a beneficiary on the Issue Date or becomes a party
or a beneficiary thereafter.
"Investment" by any Person means any direct or indirect (i) loan,
advance or other extension of credit or capital contribution (by means of
transfers of cash or other property (valued at the fair market value thereof as
of the date of transfer) to others or payments for property or services for the
account or use of others, or otherwise other than in the ordinary course of
business); (ii) purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by any other
Person (whether by merger, consolidation, amalgamation or otherwise and whether
or not purchased directly from the issuer of such securities or evidences of
Indebtedness); (iii) guarantee or assumption of the Indebtedness of any other
Person; and (iv) all other items that would be classified as investments
(including, without limitation, purchases of assets outside the ordinary course
of business) on a balance sheet of such Person prepared in accordance with GAAP.
Investments shall exclude (a) transactions between the Company and
Transportation pursuant to the Master Intercompany Agreement and (b) extensions
of loans, trade credit and advances to customers and suppliers to the extent
made in the ordinary course of business.
-17-
"Investment Grade" means (i) with respect to S&P any of the rating
categories from and including AAA to and including BBB-and (ii) with respect to
Moody's any of the rating categories from and including Aaa to and including
Baa3.
"Issue Date" means the date on which the Securities are originally
issued under this Indenture.
"Legal Holiday" means any day other than a Business Day.
"Lien" means, with respect to any Person, any mortgage, pledge, lien,
encumbrance, easement, restriction, covenant, right-of-way, charge or adverse
claim affecting title or resulting in an encumbrance against real or personal
property of such Person, or a security interest of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option, right of first refusal or other similar agreement to sell,
in each case securing obligations of such Person and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statute or statutes) of any jurisdiction but excluding any such filing or
agreement which reflects ownership by a third party of (i) property leased to
the referent Person or any of its Subsidiaries under a lease that is not in the
nature of a conditional sale or title retention agreement or (ii) accounts,
general intangibles or chattel paper sold to the referent Person).
"Master Intercompany Agreement" means the Master Intercompany
Agreement dated as of April 26, 1993 and as amended on September 30, 1996,
between the Company and Transportation as it may be amended, modified,
supplemented or restated from time to time in accordance with the terms of this
Indenture.
"Material Subsidiary" means, at any date of determination, any
Subsidiary of the Company that, together with its Subsidiaries, (i) for the most
recent Fiscal Year of the Company accounted for more than 5% of the consolidated
revenues of the Company or (ii) as of the end of such Fiscal Year, was the owner
of more than 5% of the consolidated assets of the Com-
-18-
pany, all as set forth on the most recently available consolidated financial
statements of the Company and its Consolidated Subsidiaries for such Fiscal Year
prepared in conformity with GAAP.
"Maturity Date," when used with respect to any Security, means the
date specified in such Security as the fixed date on which the final installment
of principal of such Security is due and payable (in the absence of any
acceleration thereof pursuant to Section 6.2 or any Change of Control Offer).
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Navistar" means Navistar International Corporation, a Delaware
corporation and the parent of Transportation.
"1998 Notes" means the 8 7/8% Senior Subordinated Notes due 1998 of
the Company issued under an indenture dated as of November 15, 1993 between the
Company and First Trust, N.A. (as successor to Continental Bank, N. A.).
"Offering Memorandum" means the offering memorandum dated May 22, 1997
relating to the Securities.
"Officer" means the Chairman, the President, any Vice President, the
Chief Financial Officer, the Treasurer, the Secretary or the Controller of the
Company.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or Assistant Secretary of the Company
and otherwise complying with the requirements of Section 10.4 and Section 10.5
as they relate to the making of an Officers' Certificate.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee, which may include counsel to the Company
complying with the requirements of Section 10.4 and Section 10.5 as they relate
to the giving of an Opinion of Counsel.
-19-
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Liens" means (a) Liens for taxes, assessments and
governmental charges (other than any Lien imposed by the Employee Retirement
Income Security Act of 1974, as amended) that are not yet delinquent or are
being contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and for which adequate reserves have been established or
other provisions have been made in accordance with generally accepted accounting
principles; (b) statutory mechanics', workmen's, materialmen's, operators' or
similar Liens imposed by law and arising in the ordinary course of business for
sums which are not yet due or are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and for which adequate
reserves have been established or other provisions have been made in accordance
with generally accepted accounting principles; (c) minor imperfections of, or
encumbrances on, title that do not impair the value of property for its intended
use; (d) Liens (other than any Lien under the Employee Retirement Income
Security Act of 1974, as amended) incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (e) Liens incurred or deposits
made to secure the performance of tenders, bids, leases, statutory or regulatory
obligations, bankers' acceptances, surety and appeal bonds, government
contracts, performance and return of money bonds and other obligations of a
similar nature incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (f) easements, rights-of-way,
municipal and zoning ordinances and similar charges, encumbrances, title defects
or other irregularities that do not materially interfere with the ordinary
course of business of the Company or of any of its Subsidiaries; (g) Liens
(including extensions and renewals thereof) upon real or tangible personal
property acquired after the Issue Date, provided that (I) such Lien is created
solely for the purpose of securing Indebtedness that is incurred in accordance
with this Indenture to finance the cost (including
-20-
the cost of improvement or construction) of the item of property or assets
subject thereto and such Lien is created prior to, at the time of or within 90
days after the later of the acquisition, the completion of construction or the
commencement of full operation of such property, (II) the principal amount of
the Indebtedness secured by such Lien does not exceed 100% of such cost and
(III) any such Lien shall not extend to or cover any property or assets of the
Company or of any Subsidiary of the Company other than such item of property or
assets and any improvements on such item; (h) leases or subleases granted to
others that do not materially interfere with the ordinary course of business of
the Company or of any Subsidiary of the Company; (i) any interest or title of a
lessor in the property subject to any Capitalized Lease Obligation, provided
that any transaction related thereto otherwise complies with this Indenture; (j)
Liens arising from filing Uniform Commercial Code financing statements regarding
leases; (k) Liens arising from the rendering of a final judgment or order
against the Company or any Subsidiary of the Company that does not give rise to
an Event of Default; (l) Liens securing reimbursement obligations with respect
to letters of credit incurred in accordance with this Indenture that encumber
documents and other property relating to such letters of credit and the products
and proceeds thereof; (m) Liens in favor of the Trustee arising under this
Indenture; (n) any Lien existing on property, shares of stock or Indebtedness of
a Person at the time such Person becomes a Subsidiary of the Company or is
merged with or consolidated into the Company or a Subsidiary of the Company or
at the time of sale, lease or other disposition of the properties of any Person
as an entirety or substantially as an entirety to the Company or any Subsidiary
of the Company; (o) Liens on property of any Subsidiary of the Company to secure
Indebtedness for borrowed money owed to the Company or to another Subsidiary of
the Company; and (p) Liens in favor of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, estate, unincorporated organization or government or any agency
or political subdivision thereof.
-21-
"Plan of Liquidation" means, with respect to any Person, a plan
(including by operation of law) that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously) (i) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the referent Person and
(ii) the distribution of all or substantially all of the proceeds of such sale,
lease, conveyance or other disposition and all or substantially all of the
remaining assets of the referent Person to holders of Capital Stock of the
referent Person.
"principal" of a debt security means the principal amount of the
security plus, when appropriate, the premium, if any, on the security.
"Preferred Stock" means, as applied to the Capital Stock of any
Person, the Capital Stock of such Person (other than the Common Stock of such
Person) of any class or classes (however designated) that ranks prior, as to the
payment of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding-up of such Person, to shares of
Capital Stock of any other class of such Person.
"Private Exchange Securities" shall have the meaning set forth in the
Registration Rights Agreement.
"Qualified Capital Stock" means, with respect to any Person, any
Capital Stock of such Person that is not Disqualified Capital Stock or
convertible into or exchangeable or exercisable for Disqualified Capital Stock.
"Qualified Securitization Transaction" means any transaction or series
of transactions that have been or may be entered into by the Company or any of
its Subsidiaries in connection with or reasonably related to a transaction or
series of transactions in which the Company or any of its Subsidiaries may sell,
convey or otherwise transfer to (i) a Securitization Subsidiary or (ii) any
other Person, or may grant a security interest in, any Receivables or interests
therein secured by the merchandise or services financed thereby (whether such
Re-
-22-
ceivables are then existing or arising in the future) of the Company or any of
its Subsidiaries, and any assets related thereto including, without limitation,
all security interests in merchandise or services financed thereby, the proceeds
of such Receivables, and other assets which are customarily sold or in respect
of which security interests are customarily granted in connection with
securitization transactions involving such assets.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Rating Agency" means each of (i) S&P and (ii) Moody's.
"Ratings Event" means the occurrence, as of any date, within the 90
day period (the "Initial Period") commencing on the date of public notice (the
"Public Notice") of the occurrence of a Change of Control (which period shall be
extended for a period not to exceed 90 days beyond the Initial Period if within
the Initial Period the rating of the Securities is under publicly announced
consideration of (x) a possible downgrade or (y) a possible upgrade by (i) both
Rating Agencies or (ii) either Rating Agency in the event that one of the Rating
Agencies has rated the Securities Investment Grade within the Initial Period
(such Initial Period as so extended being referred to as the "Evaluation
Period")) of any of the following events:
(1) In the event that the Securities are rated Investment Grade by
both Rating Agencies immediately prior to the Public Notice, the failure of the
Securities to be rated Investment Grade by either or both of the Rating
Agencies; or
(2) In the event that the Securities are rated Investment Grade by
one of the Rating Agencies immediately prior to the Public Notice, the earlier
to occur of (A) the Securities failing to be rated Investment Grade by such
Rating Agency or (B) the lapse of the Evaluation Period and the failure of the
Securities to be rated Investment Grade by the other Rating Agency; or
-23-
(3) In the event that the Securities are not rated Investment Grade
by both of the Rating Agencies immediately prior to the Public Notice, the lapse
of the Evaluation Period and the failure of either or both of the Rating
Agencies to rate the Securities Investment Grade.
"Receivables" means any right of payment from or on behalf of any
obligor, whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by the Company or any
Subsidiary of the Company of merchandise or services, and monies due thereunder,
security or ownership interests in the merchandise and services financed
thereby, records related thereto, and the right to payment of any interest or
finance charges and other obligations with respect thereto, proceeds from claims
on insurance policies related thereto, any other proceeds related thereto, and
any other related rights.
"Registrar" has the meaning provided in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof among the Company, the X.X. Xxxxxx Securities
Inc., Chase Securities Inc. and NationsBanc Capital Markets Inc.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the May 15 or November 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S promulgated under the Securities Act
(including any successor registration thereto) as it may be amended from time to
time.
"Restricted Physical Security" means a Physical Security containing a
Securities Act Legend.
"Rule 144" shall have the meaning set forth in the Registration Rights
Agreement.
-24-
"Rule 144A" shall have the meaning set forth in the Registration
Rights Agreement.
"SEC" means the Securities and Exchange Commission.
"Secured Obligations" means all Secured Obligations as defined in the
Security, Pledge and Trust Agreement between the Company and Bankers Trust
Company, as Trustee, dated as of April 26, 1993 (as it may be amended, the
"Security Agreement").
"Securities" means the 9% Senior Subordinated Notes due 2002 issued,
authenticated and delivered under this Indenture, as amended or supplemented
from time to time pursuant to the terms of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Subsidiary" means a Wholly Owned Subsidiary of the
Company which engages in no activities other than those reasonably related to or
in connection with the entering into of securitization transactions and which is
designated by the Board of Directors of the Company (as provided below) as a
Securitization Subsidiary (a) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which (i) is guaranteed by the Company
or any other Subsidiary of the Company, (ii) is recourse to or obligates the
Company or any other Subsidiary of the Company in any way other than pursuant to
representations, warranties and covenants (including those related to servicing)
entered into in the ordinary course of business in connection with a Qualified
Securitization Transaction or (iii) subjects any property or asset of the
Company or any other Subsidiary of the Company, directly or indirectly,
contingently or otherwise, to any Lien or to the satisfaction thereof, other
than pursuant to representations, warranties and covenants (including those
related to servicing) entered into in the ordinary course of business in
connection with a Qualified Securitization Transaction, (b) with which neither
the Company nor any other Subsidiary of the Company (i) provides any credit
support or (ii) has any contract, agree-
-25-
ment, arrangement or understanding other than on terms that are fair and
reasonable and that are no less favorable to the Company or such Subsidiary than
could be obtained from an unrelated Person (other than, in the case of
subclauses (i) and (ii) of this clause (b), representations, warranties and
covenants (including those relating to servicing) entered into in the ordinary
course of business in connection with a Qualified Securitization Transaction and
intercompany notes relating to the sale of Receivables to such Securitization
Subsidiary) and (c) with which neither the Company nor any Subsidiary of the
Company has any obligation to maintain or preserve such Subsidiary's financial
condition or to cause such Subsidiary to achieve certain levels of operating
results. Any such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolutions of the Board of Directors of the Company giving effect to such
designation.
"Senior Indebtedness of the Company" means (a) Indebtedness of the
Company under the Credit Agreement, and, as long as the Security Agreement is in
effect, without duplication, all Secured Obligations, and (b) any other
Indebtedness incurred by the Company in accordance with this Indenture, whether
such Indebtedness is outstanding on the Issue Date or thereafter, provided that
Senior Indebtedness of the Company expressly shall not include: (i) any
Indebtedness of the Company or any Secured Obligation (whether outstanding on
the Issue Date or thereafter incurred) that is, pursuant to its terms or the
terms of any agreement relating thereto, subordinated or junior to any other
Indebtedness of the Company, (ii) any Indebtedness of the Company or any Secured
Obligation (whether outstanding on the Issue Date or thereafter incurred) that
is, by its terms or the terms of any agreement relating thereto, pari passu with
or subordinated or junior to the Securities, (iii) the Securities, (iv) any
Indebtedness or any other obligation of the Company to any of the Company's
Subsidiaries or to any of the Company's Affiliates, or to any joint venture in
which the Company has an interest, (v) to the extent such may be deemed
Indebtedness of the Company, any liability for Federal, state, local, foreign or
other taxes owed or owing by the
-26-
Company or by any of its Subsidiaries (including pursuant to the Tax Allocation
Agreement), (vi) to the extent such may be deemed Indebtedness of the Company,
obligations of the Company incurred in connection with the purchase of goods,
assets, materials or services in the ordinary course of business or representing
amounts recorded as accounts payable, trade payables or other current
liabilities of the Company on the books of the Company (other than the current
portion of any long-term Indebtedness of the Company that but for this clause
(vi) would constitute Senior Indebtedness of the Company), (vii) to the extent
such may be deemed Indebtedness of the Company, any amount owed by the Company
to employees for services rendered to the Company or to any of its Subsidiaries,
and (viii) that portion of any Indebtedness which at the time of incurrence was
incurred in violation of this Indenture.
"Senior Representative" means the trustee, agent or representative of
holders of a class of Senior Indebtedness of the Company who has been identified
in writing to the Trustee and the Company.
"Shelf Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 2.10.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors.
"Stated Maturity" means, with respect to any security or Indebtedness
of a Person, the date specified therein as the fixed date on which any principal
of such security or Indebtedness is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase thereof at the option of the holder thereof).
"Subordinated Indebtedness" means the Securities, the 1998 Notes and
any other Indebtedness incurred, assumed or otherwise created by the Company
pursuant to an instrument or in-
-27-
struments providing expressly that such Indebtedness (i) is subordinate in right
of payment to the Securities or any other Indebtedness of the Company or (ii)
ranks pari passu with the Securities.
A "Subsidiary" of any Person means (a) a corporation a majority of
whose Voting Stock is at the time, directly or indirectly, owned by such Person,
by one or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person or (b) any other Person (other than a trust formed
in connection with a Qualified Securitization Transaction) in which such Person,
a Subsidiary of such Person or such Person and one or more Subsidiaries of such
Person, directly or indirectly, at the date of determination thereof, have at
least a majority ownership interest.
"Subsidiary Guarantee" means each Subsidiary Guarantee of the
Securities issued pursuant to Section 4.15.
"Subsidiary Guarantor" means each Subsidiary of the Company that
becomes a guarantor of the Securities pursuant to Section 4.15.
"Tax Allocation Agreement" means the Tax Allocation Agreement among
Navistar and its subsidiaries, effective as of October 1, 1981, as it has been
and may be amended and/or supplemented from time to time.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
(S)(S)77aaa-77bbbb) as in effect on the date of this Indenture.
"Transportation" means Navistar International Transportation Corp., a
Delaware corporation and the parent of the Company.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
-28-
"Trust Officer" means an officer or administrator of the Trustee
assigned to the Corporate Trust Administration Department or similar department
performing corporate trust work, or any successor to such department or, in the
case of a successor trustee, an officer assigned to the department, division or
group performing the corporate trust work of such successor.
"Unrestricted Global Securities" means one or more Global Securities
that do not and are not required to bear the Securities Act Legend.
"Unrestricted Physical Securities" means one or more Physical
Securities that do not and are not required to bear the Securities Act Legend.
"Unrestricted Securities" means the Securities that do not and are not
required to bear the Securities Act Legend.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors or other governing body of such Person.
"Wholly Owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person all of the outstanding shares of Capital Stock (other
than directors' qualifying shares, if applicable) of which are owned directly by
such Person or another Wholly Owned Subsidiary of such Person.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision shall be deemed incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
(a) "Commission" means the SEC;
(b) "indenture securities" means the Securities;
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(c) "indenture security holder" means a Securityholder;
(d) "indenture to be qualified" means this Indenture;
(e) "indenture trustee" or "institutional trustee" means the Trustee;
and
(f) "obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by the Securities
Act or the Exchange Act and not otherwise defined herein have the meanings so
assigned to them therein.
SECTION 1.3 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) words in the singular include the plural, and words in the plural
include the singular;
(d) provisions apply to successive events and transactions;
(e) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other Subdivision; and
(f) unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with generally accepted accounting
principles as in effect from time to time, applied on a
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basis consistent with the most recent audited consolidated financial
statements of the Company.
ARTICLE II
THE SECURITIES
--------------
SECTION 2.1 Form and Dating.
(a) Global Securities. Securities offered and sold to QIBs in
reliance on Rule 144A shall be issued initially substantially in the form of
Exhibit A hereto in the name of Cede & Co. as nominee of DTC, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. Any such
Security shall be referred to herein as the "144A Global Security." Securities
offered and sold in reliance on Regulation S shall be issued initially
substantially in the form of Exhibit A hereto in the name of Cede & Co. as
nominee of DTC, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. Any such Security shall be referred to herein as the
"Regulation S Global Security." Unrestricted Global Securities shall be issued
initially in accordance with Sections 2.6(b)(iv), 2.6(c)(ii) and 2.6(e) in the
name of Cede & Co. as nominee of DTC, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of each of the Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee as hereinafter
provided.
Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Securities from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions and transfers of interests
therein in accordance with the terms of this Indenture. Any change in the
aggregate principal amount of a Global Security to reflect the amount of any
in-
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crease or decrease in the principal amount of outstanding Securities represented
thereby shall be made by the Trustee in accordance with reasonable instructions
given by the Holder thereof as required by Section 2.6 hereof and shall be
conclusively reflected on the books and records of the Trustee.
Upon the issuance of the Global Security to DTC, DTC shall credit, on
its internal book-entry registration and transfer system, its Participant's
accounts with the respective interests owned by such Participants. Interests in
the Global Securities shall be limited to Participants, including Euroclear and
Cedel, and indirect Participants.
The Participants shall not have any rights either under this
Indenture or under any Global Security with respect to such Global Security held
on their behalf by DTC, and DTC may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Security for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest and Additional
Interest, if any, on the Global Securities and for all other purposes.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by DTC or impair,
as between DTC and its Participants, the operation of customary practices of DTC
governing the exercise of the rights of an owner of a beneficial interest in any
Global Security.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel, as in effect from
time to time, shall be applicable to interests in the Regulation S Global
Security that are held by the Participants through Euroclear or Cedel.
(b) Physical Securities. Securities offered and sold to
Institutional Accredited Investors who are not also QIBs shall be issued
initially substantially in the form of Ex-
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hibit A hereto, in certificated form and issued in the names of the purchasers
thereof (or their nominees), duly executed by the Company and authenticated by
the Trustee as hereinafter provided. Such Securities, together with any
Securities subsequently issued, whether pursuant to the terms of Section 2.6
hereof or otherwise, that are not Global Securities, shall be referred to herein
as the "Physical Securities."
(c) Securities. The provisions of the form of Securities contained
in Exhibit A hereto are incorporated herein by reference. The Securities and
the Trustee's Certificates of Authentication shall be substantially in the form
of Exhibit A hereto. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage and provided to the Trustee in
writing by the Company. The Company shall approve the form of the Securities
and any notation, legend or endorsement on them. If required, the Securities
may bear the appropriate legend regarding original issue discount for federal
income tax purposes. Each Security shall be dated the date of its
authentication. The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture.
SECTION 2.2 Execution and Authentication.
Two Officers of the Company shall sign the Securities for the Company
by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Securities for issue on the
Issue Date in the aggregate principal amount of $100,000,000, (ii) Private
Exchange Securities from time to
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time only in exchange for a like principal amount of Initial Securities and
(iii) Unrestricted Securities from time to time only in exchange for a like
principal amount of Initial Securities, in each case upon a written order signed
by an Officer of the Company. The order shall be based upon a Board Resolution
of the Company and shall specify the amount of Securities to be authenticated
and the date on which the original issue of Securities is to be authenticated.
The order shall also provide instructions concerning registration, legends, if
any, pursuant to Section 2.6(f), amounts for each Holder and delivery. The
aggregate principal amount of Securities outstanding at any time may not exceed
$100,000,000 except as provided in Section 2.7. The Securities shall be issued
only in registered form, without coupons and only in denominations of $1,000 and
any integral multiple thereof.
SECTION 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying Agent").
The Company may have one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent and shall, if required,
incorporate the provisions of the TIA. The Company shall notify the Trustee of
the name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation in accordance with the provisions of Section 7.7.
The Company initially appoints the Trustee as Registrar and Paying
Agent. The Company shall give written notice to the Trustee in the event that
the Company decides to act as Registrar.
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SECTION 2.4 Paying Agent To Hold Money in Trust.
The Company shall require each Paying Agent to agree in writing to
hold in trust for the benefit of Securityholders or the Trustee all money held
by the Paying Agent for the payment of principal of or interest on the
Securities (whether such money has been paid to it by the Company or any other
obligor on the Securities), and the Company and the Paying Agent shall each
notify the Trustee of any default by the Company (or any other obligor on the
Securities) in making any such payment. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed and the Trustee may at any time during the continuance of any
payment default, upon written request to a Paying Agent, require such Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed. Upon making such payment the Paying Agent shall have no further
liability for the money delivered to the Trustee.
SECTION 2.5 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least five Business Days before each Interest Payment Date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
SECTION 2.6 Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. Transfer of the
Global Securities shall be by delivery. Global Securities may not be
transferred as or exchanged for Physical Securities except (i) if DTC notifies
the Company that it is unwilling or unable to continue to act as depositary with
respect to the Global Securities or ceases to be a clearing agency registered
under the Exchange Act and, in either case, a successor depositary registered as
a clearing agency under the Exchange Act is not appointed by the Company within
120 days,
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(ii) at any time if the Company in its sole discretion determines that the
Global Securities (in whole but not in part) should be exchanged for Physical
Securities or (iii) if the owner of an interest in the Global Securities
requests such Physical Securities, following an Event of Default under this
Indenture, in a writing delivered through DTC to the Trustee.
Upon the occurrence of any of the events specified in the previous
paragraph, Physical Securities shall be issued in such names as DTC shall
instruct the Trustee and the Trustee shall cause the aggregate principal amount
of the applicable Global Security to be reduced accordingly and direct DTC to
make a corresponding reduction in its book-entry system. The Company shall
execute and the Trustee shall authenticate and deliver to the Person designated
in such instructions a Physical Security in the appropriate principal amount.
The Trustee shall deliver such Physical Securities to the Persons in whose names
such Securities are so registered. Physical Securities issued in exchange for
an Initial Global Security pursuant to this Section 2.6 (a) shall bear the
Securities Act Legend and shall be subject to all restrictions on transfer
contained therein. Global Securities may also be exchanged or replaced, in
whole or in part, as provided in Sections 2.7 and 2.8. Every Security
authenticated and delivered in exchange for, or in lieu of, a Global Security or
any portion thereof, pursuant to Section 2.7 or 2.8, shall be authenticated and
delivered in the form of, and shall be, a Global Security. A Global Security
may not be exchanged for another Security other than as provided in this Section
2.6(a).
(b) Transfer and Exchange of Interests in Global Securities. The
transfer and exchange of interests in Global Securities shall be effected
through DTC, in accordance with this Indenture and the procedures of DTC
therefor. Interests in Initial Global Securities shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. The Trustee shall have no obligation to
ascertain DTC's compliance with any such restrictions on transfer. Transfers of
interests in Global Securities shall also require compliance with subparagraph
(i) below, as
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well as one or more of the other following subparagraphs as applicable:
(i) All Transfers and Exchanges of Interests in Global Securities.
In connection with all transfers and exchanges of interests in Global
Securities (other than transfers of interests in a Global Security to
Persons who take delivery thereof in the form of an interest in the same
Global Security), the transferor of such interest must deliver to the
Registrar (1) instructions given in accordance with the Applicable
Procedures from a Participant or an indirect Participant directing DTC to
credit or cause to be credited an interest in the specified Global Security
in an amount equal to the interest to be transferred or exchanged, (2) a
written order given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such
increase and (3) instructions given by the Holder of the Global Security to
effect the transfer referred to in (1) and (2) above.
(ii) Transfer of Interests in the Same Initial Global Security.
Interests in any Initial Global Security may be transferred to Persons who
take delivery thereof in the form of an interest in the same Initial Global
Security in accordance with the transfer restrictions set forth in Section
2.6(f) hereof. It shall be the sole responsibility of the selling
beneficial owner to deliver these transfer documents, if any are required,
to the Company and the Trustee shall have no responsibility or duty to
collect the transfer documentation set forth in Section 2.6(f).
(iii) Transfer of Interests to Another Initial Global Security.
Interests in any Initial Global Security may be transferred to Persons who
take delivery thereof in the form of an interest in another Initial Global
Security if the Registrar receives the following:
(A) if the transferee will take delivery in the form of an
interest in the 144A Global Security, then the transferor must deliver
a certificate in the form of Exhibit D hereto, including the
certifications in item 1 thereof; or
(B) if the transferee will take delivery in the form of an
interest in the Regulation S Global Security, then
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the transferor must deliver a certificate in the form of Exhibit D
hereto, including the certifications in item 2 thereof.
(iv) Transfer and Exchange of Interests in Initial Global Security
for Interests in an Unrestricted Global Security. Interests in any Initial
Global Security may be exchanged by the holder thereof for an interest in
the Unrestricted Global Security or transferred to a Person who takes
delivery thereof in the form of an interest in the Unrestricted Global
Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement and the Company delivers an Officers' Certificate to
the Trustee stating that such Exchange Registration Statement has
become effective and directing the Trustee to effect the exchange or
transfer on the terms set forth therein;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement and the Company delivers an Officers' Certificate to the
Trustee stating that such Shelf Registration Statement has become
effective and directing the Trustee to effect the exchange or transfer
on the terms set forth therein; or
(C) the Registrar receives the following:
(1) if the holder of such an interest in an Initial Global
Security proposes to exchange it for an interest in the
Unrestricted Global Security, a certificate from such Holder in
the
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form of Exhibit E hereto, including the certifications in item
1(a) thereof;
(2) if the holder of such an interest in an Initial Global
Security proposes to transfer it to a Person who shall take
delivery thereof in the form of an interest in an Unrestricted
Global Security, a certificate in the form of Exhibit D hereto,
including the certification in item 4 thereof; and
(3) in each such case set forth in this paragraph (C), an
Opinion of Counsel in form reasonably acceptable to the Company
and the Trustee, to the effect that such exchange or transfer is
in compliance with the Securities Act and, that the restrictions
on transfer contained herein and in Section 2.6(f) hereof are not
required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a time
when an Unrestricted Global Security has not yet been issued, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.2, the Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the principal amount
of interests in the Initial Global Security transferred pursuant to
paragraph (B) above, provided the Company has made appropriate arrangements
with DTC prior to delivery of such an authentication order to the Trustee.
(v) Notation by the Trustee of Transfer of Interests Among Global
Securities. Upon satisfaction of the requirements for transfer of
interests in Global Securities pursuant to clauses (iii) or (iv) above, the
Trustee shall reduce or cause to be reduced the aggregate principal amount
of the relevant Global Security from which the interests are being
transferred, and increase or cause to be increased the aggregate principal
amount of the Global Se-
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curity to which the interests are being transferred, in each case, by the
principal amount so transferred and shall direct DTC to make corresponding
adjustments in its book-entry system. No transfer of interests of a Global
Security shall be effected until, and any transferee pursuant thereto shall
succeed to the rights of a holder of such interests only when, the
Registrar has made appropriate adjustments to the applicable Global
Security in accordance with this paragraph.
(c) Transfer or Exchange of Physical Securities for Interests in a
Global Security.
(i) If any Holder of Physical Securities required to contain the
Securities Act Legend proposes to exchange such Securities for an interest
in a Global Security or to transfer such Physical Securities to a Person
who takes delivery thereof in the form of an interest in a Global Security,
then, upon receipt by the Registrar of the following documentation (all of
which may initially be submitted by facsimile, provided arrangements
satisfactory to the Trustee are made for delivery of the originals):
(A) if the Holder of such Physical Registered Securities proposes
to exchange such Securities for an interest in an Initial Global
Security, a certificate from such Holder in the form of Exhibit E
hereto, including the certifications in item 2 thereof;
(B) if such Physical Securities are being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit D hereto, including the certifications
in item 1 thereof; or
(C) if such Physical Securities are being transferred to a Non-
U.S. Person (as defined in Regulation S) in an offshore transaction in
accordance with Rule 904 under the Securities Act, a certificate
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to the effect set forth in Exhibit D hereto, including the
certifications in item 2 thereof;
the Trustee shall cancel the Physical Securities, increase or cause to be
increased the aggregate principal amount of, in the case of clause (B)
above, the 144A Global Security, in the case of clause (C) above, the
Regulation S Global Security, and direct DTC to make a corresponding
increase in its book-entry system.
(ii) A Holder of Physical Securities required to contain the
Securities Act Legend may exchange such Securities for an interest in the
Unrestricted Global Security or transfer such Restricted Physical
Securities to a Person who takes delivery thereof in the form of an
interest in the Unrestricted Global Security only:
(A) if such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement and the Company delivers an Officers' Certificate to
the Trustee stating that such Exchange Registration Statement has
become effective and directing the Trustee to effect the exchange or
transfer on the terms set forth therein;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement and the Company delivers an Officers' Certificate to the
Trustee stating that such Shelf Registration Statement has become
effective and directing the Trustee to effect the exchange or transfer
on the terms set forth therein;
(C) upon receipt by the Registrar of the following documentation
(all of which may be submitted by facsimile):
(1) if the Holder of such Physical Securities proposes to
exchange such Securities for an interest in the Unrestricted
Global Security, a
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certificate from such Holder in the form of Exhibit E hereto,
including the certifications in item 1(b) thereof;
(2) the Holder of such Registered Securities proposes to
transfer such Securities to a Person who shall take delivery
thereof in the form of an interest in the Unrestricted Global
Security, a certificate in the form of Exhibit D hereto,
including the certifications in item 4 thereof; and
(3) in each such case set forth in this paragraph (C), an
Opinion of Counsel in form reasonably acceptable to the Company,
to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer
contained herein and in Section 2.6(f) hereof are not required in
order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a time
when an Unrestricted Global Security has not yet been issued, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.2, the Trustee shall authenticate (i) one or more Unrestricted
Global Securities in an aggregate principal amount equal to the principal
amount of Physical Securities transferred pursuant to paragraph (B) above.
(d) Transfer and Exchange of Physical Securities.
(i) Transfer of a Physical Security to Another Physical Security.
Following the occurrence of one or more of the events specified in Section
2.6(a), a Physical Security may be transferred to Persons who take delivery
thereof in the form of another Physical Security if the Registrar receives
the following:
(A) if the transfer is being effected pursuant to and in
accordance with Rule 144A, then the trans-
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feror must deliver a certificate in the form of Exhibit D hereto,
including the certifications in item 3(a) thereof; or
(B) if the transfer is being effected pursuant to and in
accordance with Regulation S, then the transferor must deliver a
certificate in the form of Exhibit D hereto, including the
certifications in item 3(b) thereof.
(ii) Transfer and Exchange of Restricted Physical Security for
Physical Security Which Does Not Bear the Securities Act Legend. Following
the occurrence of one or more of the events specified in Section 2.6(a) and
the receipt by the Trustee of an Officers' Certificate stating that such
events have occurred, a Restricted Physical Security may be exchanged by
the Holder thereof for a Physical Security or transferred to a Person who
takes delivery thereof in the form of a Physical Security which does not
bear the Securities Act Legend if:
(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement and the receipt by the Trustee of an Officers'
Certificate stating that such events have occurred;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement and the receipt by the Trustee of an Officers' Certificate
stating that such events have occurred; or
(C) the Registrar receives a certificate from such Holder in the
form of Exhibit E hereto, including the certifications in item 1(c)
thereof and an Opinion of Counsel in form reasonably acceptable to the
Company, to the effect that such exchange or transfer is in compliance
with the Securities Act and, that the restrictions on transfer
contained herein and in Section 2.6(f) hereof are not required
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in order to maintain compliance with the Securities Act.
(iii) Exchange of Physical Securities. When Physical Securities
are presented by a Holder to the Registrar with a request to register the
exchange of such Physical Securities for an equal principal amount of
Physical Securities of other authorized denominations, the Registrar shall
make the exchange as requested only if the Physical Securities are endorsed
or accompanied by a written instrument of transfer in form satisfactory to
the Registrar duly executed by such Holder or by his attorney duly
authorized in writing and shall be issued only in the name of such Holder
or its nominee and the transfer documentation required in Section
2.6(d)(ii). The Physical Securities issued in exchange for Physical
Securities shall bear the Securities Act Legend and shall be subject to all
restrictions on transfer contained herein in each case to the same extent
as the Physical Securities so exchanged.
(iv) Return of Physical Securities. In the event of a transfer
pursuant to clauses (i) or (ii) above and the Holder thereof as delivered
certificates representing an aggregate principal amount of Securities in
excess of that to be transferred, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security without
service charge, a new Physical Security or Securities of any authorized
denomination requested by the Holder, in an aggregate principal amount
equal to the portion of the Security not so transferred.
(e) Exchange Offer. Upon the occurrence of the Exchange Offer (as
defined in the Registration Rights Agreement) in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
Officers' Certificate stating that the Exchange Registration Statement has
become effective and that the Exchange Offer has occurred and an authentication
order in accordance with Section 2.2, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of the interests in the Initial Global Securities and
Re-
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stricted Physical Securities tendered for acceptance by persons participating
therein. Concurrently with the issuance of such Securities, the Trustee shall
cause the aggregate principal amount of the applicable Initial Global Securities
to be reduced accordingly and direct DTC to make a corresponding reduction in
its book-entry system. The Trustee shall cancel any Restricted Physical
Certificates in accordance with Section 2.9 hereof.
In the case that one or more of the events specified in Section 2.6(a)
have occurred, upon the occurrence of such Exchange Offer, the Company shall
issue and, upon receipt of an authentication order in accordance with Section
2.2, the Trustee shall authenticate Unrestricted Physical Securities in an
aggregate principal amount equal to the principal amount of the Restricted
Physical Securities tendered for acceptance by persons participating therein.
(f) Legends.
Each Initial Global Security and each Restricted Physical Security
shall bear the legend (the "Securities Act Legend") in substantially the
following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE
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144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT OR (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES
ACT, (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
(g) Global Security Legend. Each Global Security shall bear a legend
in substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")
TO A NOMINEE OF DTC, OR BY ANY SUCH NOMINEE OF DTC, OR BY DTC TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC). ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH
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SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.6 OF THE INDENTURE."
(h) Cancellation and/or Adjustment of Global Securities. At such
time as all interests in the Global Securities have been exchanged for Physical
Securities, all Global Securities shall be returned to or retained and canceled
by the Trustee in accordance with Section 2.9 hereof. At any time prior to such
cancellation, if any interest in a Global Security is exchanged for an interest
in another Global Security or for Physical Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
all such changes to such Global Security shall be reflected on the books and
records of the Trustee, by the Trustee to reflect such reduction.
(i) General Provisions Relating to All Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Securities
and Physical Securities upon a written order signed by an Officer of the
Company or at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any stamp or transfer tax or similar
governmental charge payable in connection therewith (other than any such
stamp or transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.8 and 4.11 hereof).
(iii) All Global Securities and Physical Securities issued upon
any registration of transfer or exchange of Global Securities or Physical
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Inden-
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ture, as the Global Securities or Physical Securities surrendered upon such
registration of transfer or exchange.
(iv) The Company shall not be required (A) to issue, to register
the transfer of or to exchange Securities during a period beginning at the
opening of business 15 days before the day of any selection of Securities
for redemption and ending at the close of business on the day of selection,
(B) to register the transfer of or to exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part or (C) to register the transfer of or to
exchange a Security between a record date and the next succeeding Interest
Payment Date.
(v) Prior to due presentment for the registration of a transfer of
any Security, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal of and
interest on such Securities and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the
contrary.
SECTION 2.7 Replacement Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Secu-
-48-
rity, a new Security of like tenor and principal amount, having endorsed thereon
and bearing a number not contemporaneously outstanding.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.8 Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and, upon Company Order, the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
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or agency of the Company designated pursuant to Section 10.2, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations and like tenor. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 2.9 Cancellation.
All Securities surrendered for payment, redemption or registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be destroyed by the Trustee and upon the Company's written
request, the Trustee shall deliver a certificate of destruction to the Company.
SECTION 2.10 Defaulted Interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date
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for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Company shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
prior to the date of the proposed payment. The Company shall promptly
notify the Trustee of such Special Record Date and, in the name and at the
expense of the Company, the Trustee shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder at his address as it
appears in the Security Register, not less than five Business Days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid not later than the fifteenth day after
such Special Record Date to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payments shall be deemed practicable by the Trustee.
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SECTION 2.11 CUSIP or CINS Number.
The Company in issuing the Securities may use a "CUSIP" or "CINS"
number, and if so, such CUSIP or CINS number shall be included in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP or CINS number printed in the notice or on the Securities,
and that reliance may be placed only on the other identification numbers printed
on the Securities. The Company will promptly notify the Trustee of any change
in the CUSIP or CINS number.
SECTION 2.12 Payments of Interest.
(a) The Holder of a Physical Security at the close of business on the
Regular Record Date with respect to any Interest Payment Date shall be entitled
to receive the interest and Additional Interest, if any, payable on such
Interest Payment Date notwithstanding any transfer or exchange of such Physical
Security subsequent to the regular record date and prior to such Interest
Payment Date, except if and to the extent the Company shall default in the
payment of the interest or Additional Interest due on such Interest Payment
Date, in which case such Defaulted Interest and Additional Interest, if any,
shall be paid in accordance with Section 2.10; provided that, in the event of an
exchange of a Physical Security for a beneficial interest in any Global Security
subsequent to a regular record date or any special record date and prior to or
on the related Interest Payment Date or other payment date under Section 2.10,
any payment of the interest and Additional Interest payable on such payment date
with respect to any such Physical Security shall be made to the Person in whose
name such Physical Security was registered on such record date. Payments of
interest on the Global Securities will be made to the Holder of the Global
Security on each Interest Payment Date; provided that, in the event of an
exchange of all or a portion of a Global Security for Physical Security
subsequent to the regular record date or any special record date and prior to or
on the related Interest Payment Date or other payment date under Section 2.10
any payment of interest or Additional
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Interest payable on such Interest Payment Date or other payment date with
respect to the Physical Security shall be made to the Holder of the Global
Security.
(b) The Trustee shall pay interest and Additional Interest, if any,
to DTC, with respect to any Global Security held by DTC, on the applicable
Interest Payment Date in accordance with instructions received from the Company
at least five Business Days before the applicable Interest Payment Date. The
Company shall deliver such instructions in the form of an Officers' Certificate
setting forth Additional Interest in the aggregate and per $1,000 principal
amount of Securities to be paid on such Interest Payment Date.
ARTICLE III
[RESERVED]
ARTICLE IV
COVENANTS
---------
SECTION 4.1 Payment of Securities.
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities and this Indenture.
An installment of principal or interest shall be considered paid on
the date due if the Trustee or Paying Agent (other than the Company or any
Subsidiary of the Company or any Affiliate of any thereof) holds on such date by
12:00 noon, New York City time, immediately available funds designated for and
sufficient to pay such installment.
The Company shall pay interest on overdue principal and on overdue
installments of interest, in each case at the
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rate per annum specified in the Securities, to the extent lawful.
SECTION 4.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency, where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.2.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations,
provided that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
The Company hereby initially designates the offices of the Trustee as
set forth in Section 10.2 as an agency of the Company in accordance with Section
2.3.
SECTION 4.3 Corporate Existence.
Subject to Article V hereof, the Company shall do or cause to be done,
at its own cost and expense, all things necessary to and will cause each of its
Subsidiaries to, preserve and keep in full force and effect the corporate
existence and rights (charter and statutory), licenses and/or franchises of
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the Company and each of its Subsidiaries, provided that the Company shall not be
required to preserve any such right, license or franchise, or the corporate
existence of any of its Subsidiaries, if in the reasonable and good faith
judgment of the Board of Directors of the Company (i) such preservation or
existence is not desirable in the conduct of business of the Company or such
Subsidiary and (ii) the loss of such right, license or franchise or the
dissolution of such Subsidiary is not adverse in any material respect to the
Holders or to the Company or the ability of the Company to satisfy its
obligations hereunder.
SECTION 4.4 Payment of Taxes and Other Claims.
The Company shall and shall cause each of its Subsidiaries to pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all material taxes, assessments and governmental charges levied
or imposed upon its or its Subsidiaries' income, profits or property and (b) all
material lawful claims for labor, materials and supplies which, if unpaid, might
by law become a Lien upon its property or the property of any of its
Subsidiaries, provided that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate negotiations or proceedings promptly instituted and diligently
conducted and for which disputed amounts adequate reserves (in the reasonable
and good faith judgment of the Board of Directors of the Company) have been
made.
SECTION 4.5 Maintenance of Properties; Insurance; Books and Records;
Compliance with Law.
(a) The Company shall, and shall cause each of its Subsidiaries to,
at all times cause all properties used or useful in the conduct of its business
to be maintained and kept in good condition, repair and working order
(reasonable wear and tear excepted) and supplied with all necessary equipment,
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereto, provided that
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nothing in this Section 4.5 shall prevent the Company or any Subsidiary from
discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is (i) in the
ordinary course of business, (ii) in the reasonable and good faith judgment of
the Board of Directors of the Company or the Subsidiary concerned, as the case
may be, desirable in the conduct of the business of the Company or such
Subsidiary, as the case may be, or (iii) otherwise permitted by this Indenture.
(b) The Company shall, and shall cause each of its Subsidiaries to
maintain with financially sound and reputable insurers such insurance (including
appropriate self insurance) as may be required by law and such other insurance,
to such extent and against such hazards and liabilities consistent with practice
on the Issue Date, as the Company in its reasonable and good faith judgment
determines is required, taking into account its business and financial
condition.
(c) The Company shall, and shall cause each of its Subsidiaries to,
keep proper books of record and account, in which full and correct entries shall
be made of all business and financial transactions of the Company and each
Subsidiary of the Company and reflect on its financial statements adequate
accruals and appropriations to reserves, all in accordance with generally
accepted accounting principles consistently applied to the Company and its
Subsidiaries taken as a whole.
(d) The Company shall and shall cause each of its Subsidiaries to
comply with all statutes, laws, ordinances, or government rules and regulations
to which it is subject, non-compliance with which would materially adversely
affect the business, earnings, properties, assets or financial condition of the
Company and its Subsidiaries taken as a whole.
SECTION 4.6 Compliance Certificates.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of its Fiscal Year, Officers' Certificates of the Company signed by the
Officers specified under TIA (S)314(a)(4) stating (i) that a review of the
activities of the
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Company during the preceding Fiscal Year has been made under the supervision of
the signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture and the
Securities, and (ii) that, to the knowledge of such Officer, no Default or Event
of Default has occurred (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which such
Officer may have knowledge, their status and what action the Company is taking
or proposes to take with respect thereto). The first certificate to be delivered
pursuant to this Section 4.6(a) shall be for the first Fiscal Year of the
Company ending after the Issue Date.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the Company shall cause
its independent public accountants to deliver to the Trustee within 120 days
after the end of each Fiscal Year a written statement by such accountants
stating (A) that their audit examination has included a review of the relevant
provisions of this Indenture and the Securities as they relate to accounting
matters, and (B) whether, in connection with their audit examination, any
Default or Event of Default has come to their attention and if such a Default or
Event of Default has come to their attention, specifying the nature and period
of existence thereof, provided that, without any restriction as to the scope of
the audit examination, such independent certified public accountants shall not
be liable by reason of any failure to obtain knowledge of any such Default or
Event of Default that would not be disclosed in the course of an audit
examination conducted in accordance with generally accepted auditing standards.
(c) The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly after any Officer becoming aware
of (i) any Default, Event of Default or default in the performance of any
covenant, agreement or condition contained in the Securities or this Indenture
or (ii) any event of default under any other Indebtedness referred to in Section
6.1(a)(iv) or (v), an Officers' Certificate specify-
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ing such Default, Event of Default, default or event of default and what action
the Company is taking or proposes to take with respect thereto.
SECTION 4.7 Reports.
So long as any Security is outstanding, the Company shall file with
the SEC the annual reports, quarterly reports and the information, documents and
other reports required to be filed by the Company with the SEC pursuant to
Sections 13 and 15(d) of the Exchange Act, whether or not the Company has or is
required to have a class of securities registered under the Exchange Act, at the
time it is or would be required to file the same with the SEC and within 15 days
after it is or would be required to file such reports, information or documents
with the SEC shall mail such reports, information and documents to the Holders
at their addresses set forth in the Register of Securities maintained by the
Registrar and the Trustee. In accordance with the provisions of TIA (S)314(a),
at any time that the Company has (whether or not required by the Exchange Act) a
class of securities registered under the Exchange Act, and at any time that the
Company is required to file such reports, information and documents pursuant to
the first sentence of this Section 4.7, the Company (at its own expense) shall
file with the Trustee, within 15 days after it is or would be required to file
them with the SEC, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15 of the Exchange Act or
pursuant to the first sentence of this Section 4.7. The Company also shall
comply with the other provisions of TIA (S)314(a).
If the Company is required to furnish annual or quarterly reports to
its stockholder pursuant to the Exchange Act, the Company shall cause any annual
report furnished to its stockholder generally and any quarterly or other
financial reports furnished by it to its stockholder generally to be filed with
the Trustee and mailed, no later than the date such materials are mailed or made
available to the Company's stock-
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holder, to the Holders at their addresses appearing in the register of
Securities maintained by the Registrar and the Trustee. If the Company is not
required to furnish annual or quarterly reports to its stockholder pursuant to
the Exchange Act, the Company shall cause its financial statements, including
any notes thereto (and with respect to annual reports, an auditors' report by a
firm of established national reputation reasonably satisfactory to the Trustee),
and a "Management's Discussion and Analysis of Financial Condition and Results
of Operations," to be so mailed to the Holders within 120 days after the end of
each of its Fiscal Years and within 60 days after the end of each of its first
three fiscal quarters.
SECTION 4.8 Maintenance of Consolidated Fixed Charge Coverage Ratio.
The Company will not permit its Consolidated Fixed Charge Coverage
Ratio as of the end of any of its fiscal quarters to be less than 1.25 to 1.0,
provided that such ratio shall be 1.10 to 1.0 for any fiscal quarter in which
the Securities are rated Investment Grade by both Rating Agencies on the last
day of such fiscal quarter.
The Company shall furnish to the Trustee an Officers' Certificate
within 45 days after the end of each Fiscal Quarter of the Company (105 days
after the end of its Fiscal Year) setting forth the calculation of this ratio
and stating whether or not the Company is in compliance with this Section 4.8
SECTION 4.9 Limitation on Indebtedness.
(a) The Company will not, and the Company will not cause or permit
any of its Subsidiaries to, incur or otherwise become or be liable in respect of
any Indebtedness (including, without limitation, Acquired Indebtedness) other
than:
(1) Senior Indebtedness of the Company and Indebtedness of
Subsidiaries of the Company, provided that the aggregate outstanding
principal amount of the sum of Senior Indebtedness of the Company plus
Indebtedness of the Subsidiaries of the Company shall not at any time
exceed 500%
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of the sum of the aggregate outstanding principal amount of Subordinated
Indebtedness plus Consolidated Tangible Net Worth, except that such 500%
shall be increased to 525% of such sum during any part or all of any three
consecutive calendar months immediately succeeding six consecutive calendar
months during which such aggregate outstanding principal amount has not
exceeded 500% of such sum;
(2) Subordinated Indebtedness of the Company, provided that the
aggregate outstanding principal amount thereof shall not at the time of
incurrence exceed 100% of Consolidated Tangible Net Worth; and
(3) Indebtedness between the Company and any of its Subsidiaries
and Indebtedness between Subsidiaries of the Company so long as held by the
Company or any Subsidiary of the Company.
(b) Notwithstanding anything in this Indenture to the contrary, the
consummation of any Qualified Securitization Transaction shall not be deemed to
be the incurrence or maintenance of Indebtedness by the Company or any
Subsidiary of the Company.
SECTION 4.10 Waiver of Stay, Extension or Usury Laws.
The Company and each Subsidiary Guarantor covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive the
Company or such Subsidiary Guarantor from paying all or any portion of the
principal of or interest on the Securities as contemplated herein or in the
Securities, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company and each Subsidiary Guarantor hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or
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impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.11 Change of Control.
Upon the occurrence of a Change of Control Triggering Event (the date
of each such occurrence being the "Change of Control Date"), the Company shall
notify the Holders in writing of such occurrence and shall make an offer to
purchase (the "Change of Control Offer"), on a Business Day (the "Change of
Control Payment Date") not earlier than 30 nor later than 60 days following the
date notification of the Change of Control Triggering Event is first given, all
Securities then outstanding at a purchase price equal to 101% of the principal
amount thereof, plus accrued and unpaid interest, if any, to such Change of
Control Payment Date.
Notice of a Change of Control Triggering Event shall be mailed by the
Company to the Holders not more than 30 days after any Change of Control Date at
their last registered addresses with a copy to the Trustee and the Paying Agent.
The Change of Control Offer shall remain open from the time of mailing for at
least 20 Business Days and until 4:00 p.m., New York City time, on the Change of
Control Payment Date. The notice, which shall govern the terms of the Change of
Control Offer, shall include such disclosures as are required by law and shall
state:
(a) that the Change of Control Offer is being made pursuant to this
Section 4.11 and that all Securities will be accepted for payment;
(b) the purchase price (including the amount of accrued interest, if
any) for each Security and the Change of Control Payment Date;
(c) that any Security not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
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(d) that any Security accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Payment Date unless the Company shall default in the payment thereof;
(e) that Holders electing to have Securities purchased pursuant to a
Change of Control Offer will be required to surrender their Securities to
the Paying Agent at the address specified in the notice prior to 4:00 p.m.,
New York City time, on the Change of Control Payment Date and must complete
any form letter of transmittal proposed by the Company and acceptable to
the Trustee and the Paying Agent;
(f) that Holders of Securities will be entitled to withdraw their
election if the Paying Agent receives, not later than 4:00 p.m., New York
City time, on the Change of Control Payment Date, a facsimile transmission
(confirmed by overnight delivery of the original thereof) or letter setting
forth the name of the Holder, the principal amount of Securities the Holder
delivered for purchase, the Security certificate number (if any) and a
statement that such Holder is withdrawing his election to have such
Securities purchased;
(g) that Holders whose Securities are purchased only in part will be
issued Securities equal in principal amount to the unpurchased portion of
the Securities surrendered;
(h) the instructions that Holders must follow in order to tender
their Securities; and
(i) the circumstances and relevant facts known to the Company
regarding such Change of Control.
On the Change of Control Payment Date, the Company shall (i) accept
for payment Securities or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Securities or portions thereof so tendered and ac-
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cepted and (iii) deliver to the Trustee the Securities so accepted together with
an Officers' Certificate setting forth the Securities or portions thereof
tendered to and accepted for payment by the Company. The Paying Agent shall
promptly mail or deliver to the Holders of Securities so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and mail or deliver to such Holders a new Security equal in principal amount to
any unpurchased portion of the Security surrendered. Any Securities not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company will publicly announce the results of the Change of Control
Offer not later than the third Business Day following the Change of Control
Payment Date.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) under the Exchange Act, and any other securities
laws or regulations in connection with the purchase of Securities pursuant to a
Change of Control Offer. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section 4.11, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.11 by virtue
thereof.
SECTION 4.12 Limitation on Transactions with Affiliates.
The Company will not, nor will the Company cause or permit any of its
Subsidiaries to (a) sell, lease, transfer or otherwise dispose of any of its
property or assets to, (b) purchase any property or assets from, (c) make any
Investment in, or (d) enter into or amend or extend any contract, agreement or
understanding with or for the benefit of, any Affiliate of the Company or of any
Subsidiary (an "Affiliate Transaction"), other than Affiliate Transactions that
are on terms that are fair and reasonable to the Company or such Subsidiary of
the Company and that are no less favorable to the Company or such Subsidiary of
the Company than those that could be obtained in a comparable arm's length
transaction by the Company or such Subsidiary of the Company from an
unaffiliated party, provided that if the Company or any Subsidiary of the
Company enters
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into an Affiliate Transaction or series of Affiliate Transactions involving or
having an aggregate value of more than $10,000,000, a majority of the Board of
Directors of the Company shall, prior to the consummation of such Affiliate
Transaction, have determined in the reasonable good faith judgment of such
directors that such Affiliate Transaction meets the foregoing standard. The
foregoing restrictions shall not apply to (a) any transaction between Wholly
Owned Subsidiaries of the Company, or between the Company and any Wholly Owned
Subsidiary of the Company if such transaction is not otherwise prohibited by the
terms of this Indenture, (b) transactions entered into pursuant to the terms of
the Master Intercompany Agreement and the Tax Allocation Agreement, (c)
transactions entered into in the ordinary course of business and (d) Qualified
Securitization Transactions.
SECTION 4.13 Limitation on Liens.
The Company will not, and will not cause or permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Liens upon any of
their respective properties or assets (including, without limitation, any asset
in the form of the right to receive payments, fees or other consideration or
benefits) whether owned on the Issue Date or acquired after the Issue Date,
other than (i) Liens granted by the Company on property or assets of the Company
securing Senior Indebtedness of the Company that is permitted by this Indenture,
provided that the Securities are secured equally and ratably with such Senior
Indebtedness subject to the provisions set forth in Article XI hereof; (ii)
Liens granted by the Company on property or assets of the Company securing
Indebtedness of the Company that is permitted by this Indenture and that is pari
passu with the Securities, provided that the Securities are secured on an equal
and ratable basis with such Liens; (iii) Liens granted by the Company on
property or assets of the Company securing Indebtedness of the Company that is
permitted by this Indenture and that is subordinated to the Securities, provided
that the Securities are secured by Liens ranking prior to such Liens; (iv) Liens
existing on the Issue Date immediately after giving effect to the consummation
of the offering of the Securities
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and the application of the net proceeds therefrom as set forth under "Use of
Proceeds" in the Offering Memorandum to the extent and in the manner such Liens
are in effect on the Issue Date, provided that the Securities are secured
equally and ratably with the Indebtedness of the Company outstanding under the
Credit Agreement subject to the provisions set forth in Article XI hereof; (v)
Permitted Liens; (vi) Liens in respect of Acquired Indebtedness permitted by
this Indenture, provided that the Liens in respect of such Acquired Indebtedness
secured such Acquired Indebtedness at the time of the incurrence of such
Acquired Indebtedness by the Company and such Liens and the Acquired
Indebtedness were not incurred by the Company or by the Person being acquired or
from whom the assets were acquired in connection with, or in anticipation of,
the incurrence of such Acquired Indebtedness by the Company, and, provided,
further that such Liens in respect of such Acquired Indebtedness do not extend
to or cover any property or assets of the Company or of any Subsidiary of the
Company other than the property or assets that secured the Acquired Indebtedness
prior to the time such Indebtedness became Acquired Indebtedness of the Company;
(vii) Liens granted by the Company or by any Subsidiary of the Company on
property or assets of the Company or such Subsidiary securing other Indebtedness
permitted by this Indenture not to exceed $2,000,000 in the aggregate; (viii)
Liens granted in connection with any Qualified Securitization Transaction; (ix)
Liens arising from claims of holders of Indebtedness against funds held in a
defeasance trust for the benefit of such holders; and (x) Liens granted by any
Subsidiary of the Company on property or assets of such Subsidiary securing
Indebtedness of such Subsidiary that is permitted by this Indenture, provided
that the Company shall cause any Subsidiary Guarantor that incurs such secured
Indebtedness to secure equally and ratably and on a parity with the Indebtedness
of such Subsidiary that is so secured such Subsidiary Guarantor's Subsidiary
Guarantee.
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SECTION 4.14 Limitation on Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not cause or permit any of its
Subsidiaries to, directly or indirectly, create or suffer to exist or allow to
become effective any consensual encumbrance or restriction of any kind on the
ability of any such Subsidiary to (i) pay dividends, in cash or otherwise, or
make other payments or distributions on its Capital Stock or any other equity
interest or participation in, or measured by, its profits, owned by the Company
or by any Subsidiary of the Company, or make payments on any Indebtedness owed
to the Company or to any Subsidiary of the Company; (ii) make loans or advances
to the Company or to any Subsidiary of the Company; or (iii) transfer any of
their respective property or assets to the Company or to any Subsidiary of the
Company, except for such encumbrances or restrictions existing under or by
reason of (A) applicable law or regulations; (B) customary provisions
restricting subletting or assignment of any lease governing a leasehold interest
of any Subsidiary of the Company; or (C) Indebtedness or any other contractual
requirements (including pursuant to any corporate governance documents in the
nature of a charter or by-laws) of a Securitization Subsidiary arising in
connection with a Qualified Securitization Transaction, provided that any such
encumbrances and restrictions apply only to such Securitization Subsidiary.
SECTION 4.15 Limitation on Guarantees by Subsidiaries.
The Company shall not cause or permit any of its Subsidiaries,
directly or indirectly, to guarantee the payment of any Indebtedness of the
Company or of any Subsidiary of the Company unless such Subsidiary of the
Company simultaneously executes and delivers a supplemental indenture (the
substantive provisions of which are in Exhibit B hereto) to this Indenture
providing for the guarantee of payment of the Securities by such Subsidiary of
the Company and if any such guarantee is given to any holders of Senior
Indebtedness of the Company, such Subsidiary Guarantor's Subsidiary Guarantee
will be subordinated to Guarantor Senior Indebtedness as set forth in Ex-
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hibit B hereto, provided that no such guarantee of such other Indebtedness shall
be permitted by this Section 4.15 unless (A) such guarantee of such other
Indebtedness (1) is unsecured, unless the Subsidiary Guarantee of such
Subsidiary Guarantor is (I) with respect to such Subsidiary Guarantor's
guarantee of Senior Indebtedness of the Company, secured equally and ratably
with any Liens securing such Subsidiary Guarantor's guarantee of such Senior
Indebtedness, subject to the provisions set forth in Article XI hereof, (II)
with respect to such Subsidiary Guarantor's guarantee of Indebtedness of the
Company ranking pari passu with the Securities, secured equally and ratably with
the Liens securing such Subsidiary Guarantor's guarantee of such pari passu
Indebtedness and (III) with respect to such Subsidiary Guarantor's guarantee of
Indebtedness of the Company that is subordinated to the Securities, secured on a
basis ranking prior to the Liens securing such Subsidiary Guarantor's guarantee
of such subordinated Indebtedness, (2) other than any guarantee by such
Subsidiary Guarantor of Senior Indebtedness of the Company incurred in
accordance with this Indenture, is not and does not purport to be senior or
superior in right of payment or otherwise to the Subsidiary Guarantee of such
Subsidiary Guarantor and (3) if such guarantee of such other Indebtedness is of
Indebtedness of the Company that is subordinated or junior to the Securities
(whether pursuant to its terms or by operation of law), is subordinated,
pursuant to a written agreement, to the Subsidiary Guarantee of such Subsidiary
Guarantor at least to the same extent and in the same manner as the Subsidiary
Guarantee of such Subsidiary Guarantor is (or would be if no Guarantor Senior
Indebtedness is then outstanding) subordinated to Guarantor Senior Indebtedness,
(B) the Subsidiary Guarantee of such Subsidiary Guarantor is not subordinated or
junior to any Indebtedness of such Subsidiary Guarantor other than Guarantor
Senior Indebtedness of such Subsidiary Guarantor and (C) such Subsidiary of the
Company waives, pursuant to Section 12.5 of Exhibit B and agrees that it will
not in any manner whatsoever claim or take the benefit or advantage of, any
rights of reimbursement, indemnity or subrogation or any other rights against
the Company or any other Subsidiary of the Company as a result of any payment by
such Subsidiary Guarantor under its Subsidiary Guarantee. The sup-
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plemental indenture shall supplement this Indenture by, among other things,
creating an additional Article XII applicable to such Subsidiary Guarantor and
any other Subsidiary Guarantors in the form set forth in Exhibit B hereto and,
in connection with the execution and delivery of the supplemental indenture,
such Subsidiary Guarantor shall execute and deliver a Guarantee substantially in
the form of Exhibit C hereto. Such Article XII shall not become effective until
the provisions of Section 12.2 have been complied with.
Notwithstanding the foregoing, any Subsidiary Guarantee will be
subject to release under the conditions described in Section 12.4 of Exhibit B
hereto.
SECTION 4.16 Limitation on Senior Subordinated Indebtedness.
The Company will not, and the Company will not cause or permit any
Subsidiary Guarantor to, directly or indirectly, in any event incur any (a)
Indebtedness that purports to be by its terms (or by the terms of any agreement
governing such Indebtedness) both subordinate to any other Indebtedness of the
Company or of such Subsidiary Guarantor, as the case may be, and senior or
superior in any right of payment or interest to the Securities or the Subsidiary
Guarantees, as the case may be, or (b) Indebtedness which by its terms (or by
the terms of any agreement governing such Indebtedness) is subordinated to any
other Indebtedness of the Company or of such Subsidiary Guarantor, as the case
may be (other than Indebtedness of the Company or of such Subsidiary Guarantor,
as the case may be (including the Securities or the Subsidiary Guarantees, as
the case may be), that is subordinated solely to Senior Indebtedness of the
Company or Guarantor Senior Indebtedness of such Subsidiary Guarantor), unless
such Indebtedness is also by its terms (or by the terms of any agreement
governing such Indebtedness) made expressly subordinate to the Securities or the
Subsidiary Guarantees, as the case may be, to the same extent and in the same
manner as such Indebtedness is subordinated pursuant to subordination provisions
that are most favorable to the holders of any other Indebtedness of the Company
or of such Subsidiary Guarantor, as the case may be.
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SECTION 4.17 Limitation on Termination of Master Intercompany
Agreement.
The Company shall not amend, modify, rescind, terminate or waive any
of the provisions of Article II.A.1 of the Master Intercompany Agreement (except
to remove obsolete references therein the removal of which will not be adverse
to the Company) or effect any other amendment of the Master Intercompany
Agreement which would materially and adversely affect the Company.
ARTICLE V
SUCCESSOR CORPORATION
---------------------
SECTION 5.1 Merger, Consolidation, Etc.
(a) The Company will not, in a single transaction or series of
related transactions, consolidate or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of (and the Company will not cause
or permit any of its Subsidiaries to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's and its
Subsidiaries' assets (determined on a consolidated basis for the Company and its
Subsidiaries) to, any Person or adopt a Plan of Liquidation unless: (i) either
(1) the Company shall be the surviving or continuing corporation or (2) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance, transfer or
lease the properties and assets of the Company and its Subsidiaries
substantially as an entirety or in the case of a Plan of Liquidation, or Person
to which assets of the Company and its Subsidiaries have been transferred (x)
shall be a corporation organized and validly existing under the laws of the
United States or any State thereof or the District of Columbia and (y) shall
expressly assume, by supplemental indenture (in form and substance satisfactory
to the Trustee), executed and delivered to the Trustee, the due and punctual
payment of the principal of, and premium, if any, and interest
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on all of the Securities and the performance of every covenant of the Securities
and this Indenture on the part of the Company to be performed or observed; (ii)
immediately after giving effect to such transaction and the assumption
contemplated by clause(i)(2)(y) above (including giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction), the Company (in the case of
clause (1) of the foregoing clause (i)) or such Person (in the case of clause
(2) thereof) shall have a Consolidated Tangible Net Worth (immediately after the
transaction but prior to any purchase accounting adjustments relating to such
transaction) equal to or greater than the Consolidated Tangible Net Worth of the
Company immediately prior to such transaction; (iii) immediately before and
after giving effect to such transaction and the assumption contemplated by
clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of the transaction) no Default and no Event of Default shall have
occurred or be continuing; (iv) the Company or such Person shall have delivered
to the Trustee (A) an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease or Plan
of Liquidation and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture, comply with this provision of
this Indenture and that all conditions precedent in this Indenture relating to
such transaction have been satisfied and (B) a certificate from the Company's
independent certified public accountants stating that the Company has made the
calculations required by clause (ii) above in accordance with the terms of this
Indenture; and (v) each Subsidiary Guarantor, unless it is the other party to
the transaction, shall have by supplemental indenture confirmed that its
Subsidiary Guarantee shall apply, without alteration or amendment and in every
identical respect as its Subsidiary Guarantee applies on the date it was granted
under this Indenture to the obligations of the Company under this Indenture and
the Securities, to the obligations of the Company or such Person, as the case
may be, under this Indenture and the Securities after the consummation of such
transaction of the Company. Notwithstanding the forego-
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ing, (x) a Wholly Owned Subsidiary of the Company may consolidate with, or merge
with or into, or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its assets to, the Company or another Wholly Owned
Subsidiary of the Company without complying with clause (ii) of the above and
(y) a series of transactions involving the sale of Receivables or interests
therein by the Company or a Securitization Subsidiary in connection with a
Qualified Securitization Transaction shall not be deemed to be the sale of all
or substantially all of the Company's assets to the extent such transactions are
consummated in the ordinary course of business.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Subsidiaries of the
Company, the Capital Stock of which constitutes all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
(b) A Subsidiary Guarantor shall not, and the Company shall not cause
or permit a Subsidiary Guarantor to, consolidate with or merge with or into any
Person unless:
(i) except in the circumstances where the Subsidiary Guarantee of
the Subsidiary Guarantor is to be released in accordance with Section 12.4,
such Subsidiary Guarantor or, if the merger or consolidation involves the
Company, the Company shall be the continuing person, or the resulting or
surviving person (the "surviving entity") shall be a corporation organized
and existing under the laws of the United States or any State thereof or
the District of Columbia;
(ii) except in the circumstances where the Subsidiary Guarantee of
the Subsidiary Guarantor is to be released in accordance with Section 12.4
or where the Company is the surviving entity, the surviving entity shall
expressly assume, by a supplemental indenture executed and delivered
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to the Trustee, in form and substance reasonably satisfactory to the
Trustee, all of the obligations of such Subsidiary Guarantor under the
Securities and this Indenture, as modified by such supplemental indenture,
and its Subsidiary Guarantee;
(iii) immediately before and immediately after giving effect to
such transaction and all other transactions occurring as a result of or in
connection therewith (including, without limitation the incurrence of any
Indebtedness or Acquired Indebtedness or the granting of any Lien) no
Default or Event of Default shall have occurred and be continuing; and
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation
or merger, and if a supplemental indenture is required in connection with
such transaction or series of transactions, such supplemental indenture,
complies with this Section 5.1(b) and that all conditions precedent
provided for in this Indenture relating to the transaction or series of
transactions have been satisfied and that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company
enforceable in accordance with its terms subject to the customary
exceptions.
The foregoing provisions of this Section 5.1(b) shall not be deemed to be a
qualification or limitation of any of the provisions of Section 5.1(a).
SECTION 5.2 Successor Entity Substituted.
Upon any consolidation or merger, or any conveyance, lease or transfer
of all or substantially all of the assets of the Company in accordance with
Section 5.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, lease or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as
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the Company herein; and thereafter (except in the case of a sale, assignment,
transfer, conveyance, lease or other disposition) the Company shall be
discharged from all obligations and covenants under this Indenture and the
Securities.
ARTICLE VI
DEFAULT AND REMEDIES
--------------------
SECTION 6.1 Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) the Company defaults in the payment of principal of, or
premium, if any, on the Securities when due at maturity, upon repurchase,
upon acceleration or otherwise, including, without limitation, failure of
the Company to repurchase the Securities on the date required following a
Change of Control Triggering Event, whether or not any such payment is
prohibited by the provisions of Article XI; or
(ii) the Company defaults in the payment of any installment of
interest on the Securities when due and continuance of such Default for 30
days or more, whether or not such payment is prohibited by the provisions
of Article XI; or
(iii) the Company or any Subsidiary Guarantor defaults in the
performance of or breaches any covenant, warranty or agreement in, or
provision of, the Securities, any Subsidiary Guarantee or this Indenture
(other than defaults specified in clause (i) or (ii) above or clause (v)
below), and such Default or breach continues for a period of
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30 days or more after written notice 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 Securities; or
(iv) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any Subsidiary of the
Company (or the payment of which is guaranteed by the Company or any
Subsidiary of the Company), which default results in the acceleration of
such Indebtedness prior to its express maturity and the principal amount of
any such Indebtedness, together with the principal amount of any other such
Indebtedness the maturity of which has been so accelerated, aggregates
$25,000,000 or more and such acceleration has not been rescinded or
annulled or such Indebtedness discharged in full within 30 days; or
(v) any Subsidiary Guarantee ceases to be in full force and effect
(other than in accordance with the terms of such Subsidiary Guarantee and
this Indenture and other than at such time as and so long as such
Subsidiary's guarantee of all other Indebtedness of the Company and of the
Company's Subsidiaries is no longer in full force and effect (unless
arising from the payment by such Subsidiary Guarantor under its guarantee
of such Indebtedness)) or is declared null and void or unenforceable or
found to be invalid (other than at any such time as and so long as such
Subsidiary Guarantor's guarantee of all other Indebtedness of the Company
and of the Company's Subsidiaries is declared null and void or
unenforceable or invalid (unless arising from payment by such Subsidiary
Guarantor under its guarantee of such Indebtedness)) or any Subsidiary
Guarantor denies its liability under its Subsidiary Guarantee (other than
by release of a Subsidiary Guarantor from its Subsidiary Guarantee in
accordance with the terms of this Indenture and the Subsidiary Guarantee
and other than at any such time as and so long as such Subsidiary Guarantor
denies liability under its guarantee of all
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other Indebtedness of the Company and of the Company's Subsidiaries (unless
arising from payment by such Subsidiary Guarantor under its guarantee of
such Indebtedness)); or
(vi) the Company fails to comply with Section 4.8 hereof for 30
days or more, or the Company fails to observe, perform or comply with any
of the terms or provisions of Article V of this Indenture; or
(vii) the entry by a court of competent jurisdiction of one or
more judgments, orders or decrees against the Company or any Subsidiary of
the Company or any of their respective property or assets in an aggregate
amount in excess of $25,000,000, which judgments, orders or decrees have
not been vacated, discharged, satisfied or stayed pending appeal within 30
days from the entry thereof and with respect to which legal enforcement
proceedings have been commenced; or
(viii) the Company or any Material Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding, or
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding, or
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors,
or
(E) files an answer or consent seeking reorganization or relief,
or
(F) shall admit in writing its inability to pay its debts
generally; or
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(ix) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any of its Material
Subsidiaries in an involuntary case or proceeding, or
(B) appoints a Custodian of the Company or any of its Material
Subsidiaries for all or substantially all of its properties, or
(C) orders the liquidation of the Company or any of its Material
Subsidiaries, and in each case the order or decree remains unstayed
and in effect for 60 days.
(b) For purposes of this Section 6.1, the term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official
charged with maintaining possession or control over property for one or more
creditors.
SECTION 6.2 Acceleration.
If an Event of Default (other than an Event of Default relating to the
Company and specified in Section 6.1(a)(viii) or (ix) above) occurs and is
continuing, the Trustee or Holders of at least 25% in aggregate principal amount
of the then outstanding Securities may, by written notice to the Company (and to
the Trustee, if given by the Holders), and the Trustee shall upon the request of
Holders of not less than 25% in aggregate principal amount of the outstanding
Securities, by written notice to the Company, declare the unpaid principal of,
premium, if any, and accrued and unpaid interest on all the Securities then
outstanding to be due and payable immediately, and the same shall become
immediately due and payable. If an Event of Default relating to the Company and
specified in Section 6.1(a)(viii) or (ix) occurs and is continuing, the unpaid
principal of, premium and accrued and unpaid interest on all the Securities
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of, in the aggregate,
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at least a majority in principal amount of the then outstanding Securities by
notice to the Trustee may rescind an acceleration and its consequences if all
existing Events of Default (except the nonpayment of principal and interest on
the Securities that has become due solely as a result of the acceleration of the
Securities) have been cured or waived and if the rescission would not conflict
with any judgment or decree. No such rescission shall affect any subsequent
default or impair any right consequent thereto.
SECTION 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 6.4 Waiver of Past Default.
Subject to Sections 6.7 and 9.2, the Holders of, in the aggregate, at
least a majority in principal amount of the then outstanding Securities by
notice to the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default or Event of Default specified in Section
6.1(a)(i) or (ii) or a Default or Event of Default in respect of any provision
hereof which cannot be modified or amended without the consent of the Holder so
affected pursuant to Section 9.2. When a Default or Event of Default is so
waived, it shall be deemed cured and cease to exist; but no such waiver
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shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
SECTION 6.5 Control by Majority.
The Holders of a majority in principal amount of the then outstanding
Securities may (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it, including, without limitation, any remedies provided for
in Section 6.3, and (ii) direct the Trustee to notify each trustee under any
instrument governing the rights of holders of Indebtedness subordinated in right
of payment to the Securities for the purpose of effecting the payment blockage
provisions thereunder. The Trustee may refuse, however, to follow any direction
that conflicts with law, the Securities or this Indenture, or that the Trustee
determines may be unduly prejudicial to the rights of another Securityholder,
that may involve the Trustee in personal liability or if the Trustee determines
that it does not have adequate indemnification against any loss or expense,
provided that the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 6.6 Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(a) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Securities make a written request to the Trustee to pursue a
remedy;
(c) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
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(d) the Trustee does not comply with the request within 30 days after
receipt of the request; and
(e) during such 30-day period the Holders of at least a majority in
principal amount of the then outstanding Securities do not give the Trustee
a direction which is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Security, on or
after the respective due dates expressed in the Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of such Holder.
SECTION 6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a)(i) or (ii) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or any other obligor on the
Securities for the whole amount of principal and accrued interest remaining
unpaid, together with interest overdue on principal and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the Interest Rate and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.9 Trustee May File Proofs of Claim.
The Trustee shall be entitled and empowered to file such proofs of
claim and other papers or documents as may be
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necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Securityholders allowed in any
judicial proceedings relative to the Company or any of its Subsidiaries (or any
other obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.7. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article VI, it
shall, subject to the provisions of Article XI hereof, pay out such money in the
following order:
First: to the Trustee for amounts due under Section 7.7;
Second: subject to Article XI, to Holders for interest accrued on the
Securities, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Securities for interest; and
Third: subject to Article XI, to Holders for principal amounts owing under
the Securities, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal.
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The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7, or a suit by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the outstanding
Securities.
SECTION 6.12 Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and
every remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.13 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article 6 or by
law to the Trustee or to the Holders may be exercised
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from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
SECTION 6.14 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE VII
TRUSTEE
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SECTION 7.1 Duties of Trustee.
(a) If an Event of Default known to the Trustee has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties as are specifically
set forth in this Indenture or the TIA and no others and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed
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therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case of
any such certificate or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
examine such certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of
this Section 7.1.
(ii) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.2, 6.4 and 6.5.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.1.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in
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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.
Subject to Section 7.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document reasonably believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled during normal business hours and upon reasonable advance
notice to the Company to examine the books, records and premises of the
Company, personally or by agent or attorney.
(b) Before the Trustee acts or refrains from acting with respect to
any matter contemplated by this Indenture, it may require an Officers'
Certificate or an Opinion of Counsel, which shall conform to the provisions
of Section 10.5. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent (other
than the negligence or willful misconduct of an agent who is an employee of
the Trustee) appointed with due care.
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(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith and without negligence which it reasonably believes
to be authorized or within its rights or powers conferred upon it by this
Indenture or the TIA.
(e) The Trustee may consult with counsel and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization
and protection from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual capacity or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company, or its Subsidiaries and Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, and it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company in this Indenture, or any statement
in the Securities other than the Trustee's certificate of authentication.
SECTION 7.5 Notice of Defaults.
If a Default or an Event of Default with respect to the Securities
occurs and is continuing and the Trustee receives written notice of such Default
or Event of Default, the Trustee shall mail to each Securityholder notice of the
Default or Event of Default within 60 days after the occurrence thereof in
accordance with TIA (S)313(c). Except in the case of a Default or an Event of
Default in payment of principal of or in-
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terest on any Security, including on acceleration, and the failure to make
payment when required by Section 4.11, and except in the case of a failure to
comply with Article V hereof, the Trustee may withhold the notice to the
Securityholders for a period not to exceed 60 days if and so long as a committee
of its Trust Officers in good faith determines that withholding the notice is in
the interest of Securityholders.
SECTION 7.6 Reports by Trustee to Holders.
To the extent required by TIA (S)313(a), within 45 days after June 1
of each year commencing with 1998 and for as long as there are Securities
outstanding hereunder, the Trustee shall mail to each Securityholder the
Company's brief report dated as of such date that complies with TIA (S)313(a).
The Trustee also shall comply with TIA (S)313(b) and TIA (S)313(c) and (d). A
copy of such report at the time of its mailing to Securityholders shall be filed
with the SEC, if required, and each stock exchange, if any, on which the
Securities are listed.
The Company shall promptly notify the Trustee if the Securities become
listed on any stock exchange and the Trustee shall comply with TIA (S)313(d).
SECTION 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee, the Paying Agent and the
Registrar from time to time reasonable compensation for their respective
services rendered hereunder. The Trustee's, the Paying Agent's and the
Registrar's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee, the
Paying Agent and the Registrar upon request for all reasonable out-of-pocket
disbursements, expenses and advances (including reasonable fees and expenses of
counsel) incurred or made by each of them in connection with entering into this
Indenture the performance of its duties under this Indenture in addition to the
compensation for their respective services under this Indenture. Such expenses
shall include the reasonable compensation, out-of-pocket disbursements and
expenses of the Trus-
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tee's, the Paying Agent's and the Registrar's agents and counsel.
The Company shall indemnify the Trustee, the Paying Agent and the
Registrar for, and hold each of them harmless against, any claim, demand,
expense (including but not limited to attorneys' fees and expenses), loss or
liability incurred by each of them arising out of or in connection with the
administration of this Indenture and their respective duties hereunder. Each of
the Trustee, the Paying Agent and the Registrar shall notify the Company
promptly of any claim asserted against it for which it may seek indemnity.
However, failure by the Trustee, the Paying Agent or the Registrar to so notify
the Company shall not relieve the Company of its obligations hereunder. The
Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee, the Paying Agent or the Registrar through the
Trustee's, the Paying Agent's or the Registrar's, as the case may be, own
willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section 7.7, each
of the Trustee, the Paying Agent and the Registrar shall have a lien prior to
the Securities on all money or property held or collected by it, in its capacity
as Trustee, Paying Agent or Registrar, as the case may be, except money or
property held in trust to pay principal of or interest on particular Securities.
When any of the Trustee, the Paying Agent and the Registrar incurs
expenses or renders services after an Event of Default specified in Section
6.1(a)(viii) or (ix) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in
writing, such resignation to be effective upon the appointment of a successor
Trustee. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Trustee in writing and may
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appoint a successor Trustee with the Company's consent which consent shall not
be unreasonably withheld. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee (subject to the lien provided in Section 7.7), the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 25% in principal amount of then outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
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If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall be the successor Trustee, provided such corporation or national banking
association shall be otherwise qualified and eligible under this Article VII.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S)310(a)(1) and (2). The Trustee shall have a combined
capital and surplus of at least $200,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA
(S)310(b), provided that there shall be excluded from the operation of TIA
(S)310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding if the requirements for such exclusion set forth in TIA
(S)310(b)(1) are met. The provisions of TIA (S)310 shall apply to the Company,
as obligor of the Securities.
SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA (S)311(a), excluding any creditor
relationship listed in TIA (S)311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S)311(a) to
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the extent indicated therein. The provisions of TIA (S)311 shall apply to the
Company as obligor on the Securities.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
---------------------------------------
SECTION 8.1 Termination of the Company's Obligations.
The Company's obligations under the Securities and this Indenture
shall terminate, and the obligations of any Subsidiary Guarantor shall
terminate, except those obligations referred to in the penultimate paragraph of
this Section 8.1, if all Securities previously authenticated and delivered
(other than destroyed, lost or stolen Securities which have been replaced or
paid or Securities for whose payment money has theretofore been deposited with
the Trustee or the Paying Agent in trust or segregated and held in trust by the
Company and thereafter repaid to the Company, as provided in Section 8.4) have
been delivered to the Trustee for cancellation and the Company has paid all sums
payable by it hereunder, or if:
(a) all Securities have otherwise become due and payable hereunder;
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the benefit
of the Holders for that purpose, cash or cash equivalents in such amount as
is sufficient without consideration of reinvestment of such interest, to
pay principal of, premium, if any, and interest on the outstanding
Securities to maturity or redemption, provided that the Trustee shall have
been irrevocably instructed to apply such cash or cash equivalents to the
payment of said principal, premium, if any, and interest with respect to
the Securi-
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ties, and, provided, further, that from and after the time of deposit, the
money deposited shall not be subject to the rights of holders of Senior
Indebtedness of the Company or Guarantor Senior Indebtedness pursuant to
the provisions of Article XI or Article XII;
(c) no Default or Event of Default with respect to this Indenture or
the Securities shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit will
not result in a breach or violation of, or constitute a default under, any
other instrument to which the Company is a party or by which it is bound;
(d) the Company shall have paid all other sums payable by it
hereunder;
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of the Company's and each
Subsidiary Guarantor's obligation under the Securities and this Indenture
have been complied with. Such Opinion of Counsel shall also state that such
satisfaction and discharge does not result in a default under any Senior
Indebtedness of the Company (if then in effect) or any other agreement or
instrument then known to such counsel that binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.5, 2.6, 2.7, 2.8, 4.1, 4.2 and 7.7 and any Subsidiary Guarantor's
obligations in respect thereof shall survive until the Securities are no longer
outstanding. After the Securities are no longer outstanding, the Company's
obligations in Sections 7.7, 8.4 and 8.5 and any Subsidiary Guarantor's
obligations in respect thereof shall survive.
After such delivery or irrevocable deposit the Trustee upon request
shall acknowledge in writing the discharge of the Company's and any Subsidiary
Guarantor's obligations under
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the Securities and this Indenture except for those surviving obligations
specified above.
SECTION 8.2 Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by resolution of the Board of
Directors of the Company, at any time, with respect to the Securities, elect to
have either paragraph (b) or paragraph (c) below be applied to the outstanding
Securities upon compliance with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company and any Subsidiary Guarantor shall
be deemed to have been released and discharged from its obligations with respect
to the outstanding Securities on the date the conditions set forth below are
satisfied (hereinafter, "legal defeasance"). For this purpose, such legal
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the outstanding Securities, which shall
thereafter be deemed to be "outstanding" only for the purposes of paragraph
cbelow and the other Sections of and matters under this Indenture referred to in
(i) and (ii) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), and Holders of the Securities and the Subsidiary
Guarantees and any amounts deposited under paragraph (d) below shall cease to be
subject to any obligations to, or the rights of, any holder of Senior
Indebtedness of the Company or Guarantor Senior Indebtedness under Article XI,
Article XII or otherwise, except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Securities to receive solely from the trust fund described in
paragraph (d) below and as more fully set forth in such paragraph, payments in
respect of the principal of, premium, if any, and interest on such Securities
when such payments are due, (ii) the Company's obligations with respect to such
Securities under Sections 2.6, 2.7 and 4.2, and, with respect to the Trustee,
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under Section 7.7 and any Subsidiary Guarantor's obligations in respect thereof,
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Section 8.2 and Section 8.5. Subject to compliance with this
Section 8.2, the Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) below with
respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article V and Article XI
and in Sections 4.5 through 4.9, 4.11 through 4.17 and Section 5.1 with respect
to the outstanding Securities on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"), and the Securities
shall thereafter be deemed to be not "outstanding" for the purpose of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder and Holders
of the Securities and the Subsidiary Guarantees and any amounts deposited under
paragraph (d) below shall cease to be subject to any obligations to, or the
rights of, any holder of Senior Indebtedness of the Company or Guarantor Senior
Indebtedness under Article XI, Article XII or otherwise. For this purpose, such
covenant defeasance means that, with respect to the outstanding Securities, the
Company and any Subsidiary Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
6.1(a)(iii), but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
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(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (x)
money in an amount or (y) direct non-callable obligations of, or non-
callable obligations guaranteed by, the United States of America for the
payment of which guarantee or obligation the full faith and credit of the
United States is pledged ("U.S. Government Obligations") maturing as to
principal, premium, if any, and interest in such amounts of money and at
such times as are sufficient without consideration of any reinvestment of
such interest, to pay principal of and interest on the outstanding
Securities not later than one day before the due date of any payment, or
(z) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge principal of, premium, if any, and interest on the
outstanding Securities on the Maturity Date or otherwise in accordance with
the terms of this Indenture and of such Securities, provided that the
Trustee (or other qualifying trustee) shall have received an irrevocable
written order from the Company instructing the Trustee (or other qualifying
trustee) to apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to the Securities;
(ii) no Default or Event of Default with respect to the Securities
or this Indenture shall have occurred and be continuing immediately after
giving effect to such deposit (or, insofar as Section 6.1(a)(viii) or (ix)
is concerned, at any time during the period ending on the 91st day after
the date of such deposit (it being understood
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that this condition shall not be deemed satisfied until the expiration of
such period); provided, however, that actions taken by the Company in
connection with the creation of the trust fund into which funds for the
purpose of defeasance of the Securities are deposited that are not in
compliance with Sections 4.9, 4.13 and 4.14 and the failure of the Company
to comply with Section 4.8 as a result of the incurrence of indebtedness to
create such trust fund deposit, in each case, shall not be deemed a Default
or Event of Default under this Indenture);
(iii) such legal defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest with respect to any Securities
of the Company or any Subsidiary Guarantor;
(iv) such legal defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default or Event of Default
under any agreement or instrument to which the Company or any Subsidiary
Guarantor is a party or by which it is bound;
(v) in the case of an election under paragraph (b) above, the
Company shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that,
the Holders of the outstanding Securities will not recognize income, gain
or loss for Federal income tax purposes as a result of such legal
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such legal defeasance had not occurred;
(vi) in the case of an election under paragraph (c) above, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the outstanding Securities will not recognize
income, gain or
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loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred;
(vii) in the case of an election under either paragraph (b) or (c)
above, an Opinion of Counsel to the effect that, (x) the trust funds will
not be subject to any rights of any holders of other Indebtedness,
including, without limitation, Senior Indebtedness of the Company, and (y)
after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable Bankruptcy Law, provided that if a
court were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company, no opinion needs to be given
as to the effect of such laws on the trust funds except the following: (A)
assuming such trust funds remained in the Trustee's possession prior to
such court ruling to the extent not paid to Holders of Securities, the
Trustee will hold, for the benefit of the Holders of Securities, a valid
and enforceable security interest in such trust funds that is not avoidable
in bankruptcy or otherwise, subject only to principles of equitable
subordination, (B) the Holders of Securities will be entitled to receive
adequate protection of their interests in such trust funds if such trust
funds are used, and (C) no property, rights in property or other interests
granted to the Trustee or the Holders of Securities in exchange for or with
respect to any of such funds will be subject to any prior rights of any
other person, subject only to prior Liens granted under Section 364 of
Title 11 of the U.S. Bankruptcy Code (or any section of any other
Bankruptcy Law having the same effect), but still subject to the foregoing
clause (B); and
(viii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that (x) all
conditions precedent provided for relating to either the legal defeasance
under paragraph (b)
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above or the covenant defeasance under paragraph (c) above, as the case may
be, have been complied with and (y) if any other Indebtedness of the
Company shall then be outstanding or committed, such legal defeasance or
covenant defeasance will not violate the provisions of the agreements or
instruments evidencing such Indebtedness.
(e) All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to paragraph (d) above in respect
of the outstanding Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (other than the Company or
any Affiliate of the Company) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of
principal, premium and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to paragraph (d) above or the principal, premium, if any, and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Securities.
Anything in this Section 8.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request,
in writing, by the Company any money or U.S. Government Obligations held by it
as provided in paragraph (d) above which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance.
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SECTION 8.3 Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 8.1 and 8.2, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium, if any, and
interest on the Securities.
SECTION 8.4 Repayment to Company or Subsidiary Guarantors.
Subject to Sections 7.7, 8.1 and 8.2, the Trustee shall promptly pay
to the Company, or if deposited with the Trustee by any Subsidiary Guarantor, to
such Subsidiary Guarantor, upon receipt by the Trustee of an Officers'
Certificate, any excess money, determined in accordance with Section 8.2, held
by it at any time. The Trustee and the Paying Agent shall pay to the Company or
any Subsidiary Guarantor, as the case may be, upon receipt by the Trustee or the
Paying Agent, as the case may be, of an Officers' Certificate, any money held by
it for the payment of principal, premium, if any, or interest that remains
unclaimed for two years after payment to the Holders is required (unless
otherwise provided under operation of law), provided that the Trustee and the
Paying Agent before being required to make any payment may, but need not, at the
expense of the Company cause to be published once in a newspaper of general
circulation in The City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that after a date specified
therein, which shall be at least 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company or any Subsidiary Guarantor, as the
case may be, Securityholders entitled to money must look solely to the Company
for payment as general creditors unless an applicable abandoned property law
designates another person, and all liability of the Trustee or Paying Agent with
respect to such money shall thereupon cease.
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SECTION 8.5 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
and only then the Company's and each Subsidiary Guarantor's, if any, obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had been made pursuant to this Indenture until such time as
the Trustee is permitted to apply all such money or U.S. Government Obligations
in accordance with this Indenture, provided that if the Company or the
Subsidiary Guarantors, as the case may be, has made any payment of principal of,
premium, if any, or interest on any Securities because of the reinstatement of
its obligations, the Company or the Subsidiary Guarantors, as the case may be,
shall be, subrogated to the rights of the holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
-----------------------------------
SECTION 9.1 Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
resolutions of its Board of Directors (copies of which shall be delivered to the
Trustee) and the Trustee may amend, waive or supplement this Indenture or the
Securities without notice to or consent of any Holder for any of the following
purposes:
(a) to cure any ambiguity, defect or inconsistency, provided that
such amendment or supplement does not adversely affect the rights of any
Holder;
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(b) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(c) to comply with any requirements of the SEC under the TIA;
(d) to evidence the succession in accordance with Article V hereof of
another Person to the Company and the assumption by any such successor of
the covenants of the Company herein and in the Securities;
(e) to add any Subsidiary of the Company as a Subsidiary Guarantor
pursuant to the terms of Section 4.16 and Article XII;
(f) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the
Securities; or
(g) to make any other change that does not adversely affect the
rights of any Holder;
provided, however, that in making such change, the Trustee may rely upon an
Opinion of Counsel stating that such change does not adversely affect the rights
of any Holder.
SECTION 9.2 With Consent of Holders.
Subject to Section 6.7 and the provisions of this Section 9.2, the
Company, when authorized by resolution of its Board of Directors (copies of
which shall be delivered to the Trustee) and the Trustee may amend or supplement
this Indenture, the Securities or any Subsidiary Guarantee with the written
consent of the Holders of at least a majority in principal amount of the
Securities then outstanding. Subject to Section 6.7 and the provisions of this
Section 9.2, the Holders of, in the aggregate, at least a majority in principal
amount of the then outstanding Securities affected may waive compliance by the
Company and any Subsidiary Guarantor with any provision of this Indenture, the
Securities or any Subsidiary Guarantee without notice to any other
Securityholder. However, without
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the consent of each Securityholder affected, an amendment, supplement or waiver,
including a waiver pursuant to Section 6.4, may not:
(a) reduce the aggregate principal amount of Securities the Holders
of which must consent to an amendment, supplement or waiver of any
provision of or with respect to this Indenture, the Securities or any
Subsidiary Guarantee; or
(b) reduce the rate of, change the method of calculation of, or
extend the time for, payment of interest, including default interest, on
any Security; or
(c) reduce the principal of or premium on or change the Stated
Maturity of any Security or alter the repurchase provisions with respect
thereto; or
(d) make the principal of, or interest on, any Security payable in
money other than as provided herein, or
(e) make any change in provisions relating to waivers of defaults,
the ability of Holders to enforce their rights under this Indenture or in
the matters discussed in clauses (a) through (h); or
(f) waive a default in the payment of the principal of, interest on,
or repurchase payment required hereunder with respect to, any Security,
including, without limitation, a default to make a payment when required
upon a Change of Control Triggering Event; or
(g) adversely affect the ranking of the Securities or any Subsidiary
Guarantee or release any Subsidiary Guarantor from any of its obligations
under its Subsidiary Guarantee in this Indenture other than in compliance
with Section 12.4 of Exhibit B hereto;
(h) after the Company's obligation to purchase Securities arises
thereunder, amend, modify or change the obligation of the Company to make
and consummate a Change of
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Control Offer in the event of a Change of Control Triggering Event or waive
any default in the performance thereof or modify any of the provisions or
definitions with respect to such offers.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
Notwithstanding the foregoing, no amendment shall modify any provision of this
Indenture so as to affect adversely the rights of any holder of Senior
Indebtedness of the Company or Guarantor Senior Indebtedness to the benefits of
the subordination provisions under this Indenture without the consent of such
holder.
SECTION 9.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall be set forth in a supplemental indenture that complies with the TIA as
then in effect.
SECTION 9.4 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same debt
as the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security. Such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the amendment, supplement or waiver becomes effective. Not-
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withstanding the above, nothing in this paragraph shall impair the right of any
Securityholder under (S)316(b) of the TIA.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver which record date shall be at least 10 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the second and third sentences of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. Such
consent shall be effective only for actions taken within 90 days after such
record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder unless it makes a change described in any of clauses
(a) through (h) of Section 9.2. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it.
SECTION 9.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee shall (in accordance with the specific written direction of the
Company) request the Holder of the Security to deliver it to the Trustee. The
Trustee shall (in accordance with the specific direction of the Company) place
an appropriate notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make
the appropriate notation or issue a new Security shall not affect the validity
and effect of such amendment, supplement or waiver.
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SECTION 9.6 Trustee to Sign Amendments, Etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article IX if the amendment, supplement or waiver does not
adversely affect the rights, duties or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing any amendment, supplement or
waiver, the Trustee shall be entitled to receive, if requested, an indemnity
reasonably satisfactory to it and to receive, and shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
the execution of any amendment, supplement or waiver authorized pursuant to this
Article IX is authorized or permitted by this Indenture and that it constitutes
the legal, valid and binding obligation of the Company and, if applicable, the
Subsidiary Guarantors, subject to the customary exceptions.
ARTICLE X
MISCELLANEOUS
-------------
SECTION 10.1 Trust Indenture Act Controls.
The provisions of TIA (S)(S)310 through 317 that impose duties on any
person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by the above paragraph, the imposed duties shall control.
SECTION 10.2 Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by first-class mail or by telecopier, followed
by first-class mail, or by overnight service guaranteeing next-day delivery,
addressed as follows:
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(a) if to the Company:
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier Number: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopier Number: (000) 000-0000
(b) if to the Trustee:
The Fuji Bank and Trust Company
Corporate Trust Administration Department
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopier Number: (000)-000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder, including any
notice delivered in connection with TIA (S)310(b), TIA (S)313(c), TIA (S)314(a)
and TIA (S)315(b), shall be mailed to such Holder, first-class postage prepaid,
at his address as it appears on the registration books of the Registrar and
shall be sufficiently given to such Holder if so mailed within the time
prescribed.
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Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received by an officer in the corporate trust administration department of
the Trustee, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 10.3 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA (S)312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other Person shall
have the protection of TIA (S)312(c).
SECTION 10.4 Certificate and Opinion of Counsel as to Conditions
Precedent.
Upon any request or application by the Company or any Subsidiary
Guarantor to the Trustee to take any action under this Indenture, the Company or
any Subsidiary Guarantor shall furnish to the Trustee at the request of the
Trustee (a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with (which officer signing such certificate
may rely, as to matters of law, on an Opinion of Counsel), (b) an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee stating
that, in the opinion of counsel, all such conditions have been complied with
(which counsel, as to factual matters, may rely on an Officers' Certificate) and
(c) where applicable, a certificate or opinion by an independent certified
public accountant satisfactory to the Trustee that complies with TIA (S)314(c).
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SECTION 10.5 Statements Required in Certificate and Opinion of
Counsel.
Each certificate and Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or rendering
such Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 10.6 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at a meeting of Securityholders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 10.7 Legal Holidays.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
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SECTION 10.8 Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE, THE
SECURITIES AND THE SUBSIDIARY GUARANTEES WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. THE COMPANY AND EACH SUBSIDIARY GUARANTOR AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES AND THE
SUBSIDIARY GUARANTEES.
SECTION 10.9 No Recourse Against Others.
A trustee, director, officer, employee, stockholder or beneficiary, as
such, of the Company or any Subsidiary Guarantor shall not have any liability
for any obligations of the Company or any Subsidiary Guarantor under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Security holder by accepting
a Security waives and releases all such liability.
SECTION 10.10 Successors.
All agreements of the Company or any Subsidiary Guarantor in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 10.11 Counterparts.
The parties may sign any number of counterparts of this Indenture.
Each such counterpart shall be an original, but all of them together represent
the same agreement.
SECTION 10.12 Severability.
In case any provision in this Indenture, the Securities or in any
Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and a Holder shall have no claim therefor against
any party hereto.
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SECTION 10.13 Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, and are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 10.14 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or of any Subsidiary Guarantor or any of their
respective Subsidiaries. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
SECTION 10.15 Benefits of Indenture.
Nothing in this Indenture, in the Securities or in any Subsidiary
Guarantee, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture, the Securities or in
any Subsidiary Guarantee.
SECTION 10.16 Independence of Covenants.
All covenants and agreements in this Indenture, the Securities and the
Subsidiary Guarantees shall be given independent effect so that if any
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
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ARTICLE XI
SUBORDINATION OF SECURITIES
---------------------------
SECTION 11.1 Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Securities, by
his acceptance thereof, likewise covenants and agrees, that the indebtedness
represented by the Securities and the payment of the principal of and interest
on each and all of the Securities is hereby expressly subordinated, to the
extent and in the manner hereinafter set forth, in right of payment to the prior
payment in full of Senior Indebtedness of the Company.
Anything in the Securities or in this Indenture to the contrary
notwithstanding, the indebtedness evidenced by the Securities shall be
subordinate and junior in right of payment, in all respects, to all Senior
Indebtedness of the Company, whether outstanding at the Issue Date or incurred
after the Issue Date. Without limiting the effect of the foregoing,
"subordinate" and "junior" as used herein shall include within their meanings
the following:
(i) in the event of any insolvency or bankruptcy proceedings, and
any receivership, liquidation, reorganization or other similar proceedings
in connection therewith, relative to the Company or its creditors or its
property, and in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of the Company, whether or not involving
insolvency or bankruptcy proceedings, then (A) all Senior Indebtedness of
the Company shall first be paid in full, or such payment be provided for,
before any payment on account of principal or interest is made upon the
Indebtedness evidenced by the Securities, and (B) in any such proceedings
any payment or distribution of any kind or character (including without
limitation any distribution realized from or attributable to any security
interest of the Holders of the Securities in property or assets of the
Company), whether in cash or
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property or securities which may be payable or deliverable in respect of
the Securities, shall be paid or delivered directly to the holders of such
Senior Indebtedness of the Company (or the representative or
representatives of such holders or the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness of the Company shall have been issued) for application in
payment thereof, unless and until such Senior Indebtedness of the Company
shall have been paid in full or such payment shall have been provided for;
provided that (1) in the event that payment or delivery of such cash,
property or securities to the Holders of the Securities is authorized by an
order or decree giving effect, and stating in such order or decree that
effect is given, to the subordination of the Securities to Senior
Indebtedness of the Company, and made by a court of competent jurisdiction
in a reorganization proceeding under any applicable law, no payment or
delivery of such cash, property or securities payable or deliverable with
respect to the Securities need be made to the holders of Senior
Indebtedness of the Company, (2) no such delivery need be made of
securities which are issued pursuant to voluntary reorganization,
dissolution, or liquidation proceedings by the Company or by the Company as
reorganized, if such securities are subordinate and junior to the payment
of all Senior Indebtedness of the Company then outstanding to the same
extent as the Securities and (3) if, pursuant to the foregoing, a payment
or delivery of cash, property or securities is to be made to the holders of
Senior Indebtedness of the Company (or their representative or
representatives or the trustee or trustees under any indenture under which
any instruments evidencing any such Senior Indebtedness of the Company
shall have been issued) from a distribution realized from or attributable
to any security interest of the Holders of the Securities in property or
assets of the Company, such payment or delivery shall be made (x) first, to
the holders of any Senior Indebtedness of the Company (or their
representative or representatives) secured equally and ratably with the
Holders of the Securities with respect to such property or assets or to
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the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness of the Company shall have been
issued, ratably according to the aggregate amounts remaining unpaid on
account of such Senior Indebtedness of the Company held or represented by
each, until such Senior Indebtedness of the Company shall have been paid in
full or such payment shall have been provided for and (y) then, to the
extent such payment or delivery shall not be required to pay the Senior
Indebtedness of the Company referred to in the foregoing clause (x), to the
other holders of Senior Indebtedness of the Company (or their
representative or representatives or the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness of the Company shall have been issued), ratably according to
the aggregate amounts remaining unpaid on account of such Senior
Indebtedness of the Company held or represented by each, until such Senior
Indebtedness of the Company shall have been paid in full or such payment
shall have been provided for;
(ii) no payment or prepayment of any principal, premium (if any) or
interest on account of and no repurchase, redemption or other retirement
(whether at the option of the Holder or otherwise) of the Securities shall
be made, if at the time of such payment, prepayment, repurchase, redemption
or retirement, or immediately after giving effect thereto, there shall
exist a default in the payment or prepayment of any Senior Indebtedness of
the Company;
(iii) in the event that any Security is declared due and payable
because of the occurrence of an Event of Default (under circumstances when
the provisions of the foregoing clause (i) shall not be applicable), the
Holders of the Securities shall be entitled to payment only after there
shall first have been paid in full the Senior Indebtedness of the Company
outstanding at the time such Security so becomes due and payable because of
such Event of Default, or provision for such payment shall have been made;
and
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(iv) in the event that (A) any of the events described in clauses
(i), (ii) and (iii) occurs and (B) notwithstanding the provisions therein,
any payment or distribution of assets of the Company of any kind or
character (including any distribution realized from or attributable to any
security interest of the Holders of the Securities in property or assets of
the Company), whether in cash, property or securities, shall be received by
the Holders of the Securities (or their representative or representatives
or the Trustee under this Indenture) before all Senior Indebtedness of the
Company shall have been paid in full, or provision made for such payment in
accordance with the terms of the Senior Indebtedness of the Company, except
as provided in subclauses (1) and (2) of the proviso to clause (i) above,
such payment or distribution shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of such Senior Indebtedness
of the Company (or their representative or representatives or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness of the Company shall have been
issued), as their respective interests may appear under said clauses (i),
(ii) and (iii), for application to the payment of all such Senior
Indebtedness of the Company remaining unpaid to the extent necessary to pay
such Senior Indebtedness of the Company in full in accordance with its
terms, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness of the Company.
SECTION 11.2 Subrogation.
Subject to the payment in full of all Senior Indebtedness of the
Company, Holders of the Securities shall be subrogated to the rights of the
holders of Senior Indebtedness of the Company to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Indebtedness of the Company until all amounts owing on the Securities
shall be paid in full, and as between the Company, its creditors other than
holders of such Senior Indebtedness, and
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Holders of the Securities, no such payment or distribution made to the holders
of such Senior Indebtedness by virtue of this Article XI which otherwise would
have been made to the Securityholders shall be deemed to be a payment by the
Company on account of such Senior Indebtedness, it being understood that the
provisions of this Article XI are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of Senior Indebtedness of the Company, on the other hand.
SECTION 11.3 Relative Rights.
Nothing contained in this Article XI or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of its Senior Indebtedness, and the Holders of
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Securities the principal of and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company other than the holders of
its Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article XI of the holders of Senior Indebtedness of
the Company to receive cash, property or securities otherwise payable or
deliverable to the Securityholders.
Upon payment or distribution of assets of the Company referred to in
this Article XI, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending or upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee, or agent or other person making any payment or
distribution, to the Trustee or to the Holders of the Securities for the purpose
of ascertaining the persons entitled to participate in such
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payment or distribution, the holders of the Senior Indebtedness of the Company
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount paid or distributed thereon and all other facts pertinent thereto or
to this Article XI.
Nothing contained in this Article or elsewhere in this Indenture, or
in any of the Securities, shall affect the obligations of the Company to make,
or prevent the Company from making, payment of the principal of or interest on
the Securities in accordance with the provisions hereof and thereof, except as
otherwise provided in this Article XI.
SECTION 11.4 Trustee To Effectuate Subordination.
Each holder of Securities, by his acceptance thereof, authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XI and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 11.5 Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Company.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company and shall not be liable to any
such holders if it shall mistakenly pay over or distribute to Securityholders or
the Company or any other person moneys or assets to which any holders of Senior
Indebtedness of the Company shall be entitled by virtue of this Article XI or
otherwise.
SECTION 11.6 Notice by Company.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company that would prohibit the making of any payment of
moneys to or by the Trustee pursuant to this Article. Subject to the provisions
of Sections 7.5 and 7.1 but notwithstanding any other provisions of this
Indenture, the Trustee and any Paying Agent shall not be charged with knowledge
of the existence of any facts that would pro-
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hibit the making of any payment of moneys to or by the Trustee or such Paying
Agent, or the taking of any other action by the Trustee or such Paying Agent,
unless and until the Trustee or such Paying Agent shall have received written
notice thereof from the Company at least three Business Days prior to the making
of any such payment, the Securityholders, the holders of any Senior Indebtedness
of the Company or the representative of any such holders.
SECTION 11.7 Rights of Trustee.
The Trustee shall be entitled to all the rights set forth in this
Article XI with respect to any Senior Indebtedness of the Company by the time
held by the Trustee, to the same extent as any other holder of Senior
Indebtedness.
SECTION 11.8 Company May Not Impair Subordination.
No right of any present or future holder of any Senior Indebtedness of
the Company to enforce the subordination herein shall at any time or in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
SECTION 11.9 Rights of Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall require
otherwise) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article XI in addition to or in place of the Trustee, provided
that Sections 11.6 and 11.7 shall not apply to the Company if it acts as Paying
Agent.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be
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an original, but all such counterparts shall together constitute but one and the
same instrument.
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
NAVISTAR FINANCIAL CORPORATION,
as Issuer
By: /s/ R. Xxxxx Xxxx
----------------------------
Name: R. Xxxxx Xxxx
Title: Vice President
and Treasurer
THE FUJI BANK AND TRUST COMPANY,
as Trustee
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Exhibit A
(FORM OF FACE OF SECURITY)
No. [ ] $ [ ]
9% SENIOR SUBORDINATED NOTE DUE 2002
NAVISTAR FINANCIAL CORPORATION promises to pay
to [ ] or registered assigns the
principal sum of[ ] Dollars on
June 1, 2002.
Interest Payment Dates: June 1, December 1 and at maturity
Record Dates: May 15, November 15 and 15 days prior to maturity
By:____________________________
Authorized Signature
By:____________________________
Authorized Signature
Dated: May 30, 1997
Certificate of Authentication
This is one of the 9% Senior Subordinated Notes due 2002 referred to
in the within-mentioned indenture.
, as Trustee
-------------------------------
By:____________________________
Authorized Signatory
(FORM OF REVERSE OF SECURITY)
9% SENIOR SUBORDINATED NOTE DUE 2002
1. Interest. NAVISTAR FINANCIAL CORPORATION, a Delaware corporation
(the "Company," which definition shall include any successor thereto in
accordance with the Indenture (as defined below)), promises to pay, until the
principal hereof is paid or made available for payment, interest on the
principal amount set forth on the reverse side hereof at a rate of 9% per annum.
Interest on the Securities will accrue from and including the most recent date
to which interest has been paid or, if no interest has been paid, from and
including May 30, 1997 through but excluding the date on which interest is paid.
Interest shall be payable in arrears on June 1, December 1 and at the stated
maturity (each an "Interest Payment Date"), commencing December 1, 1997.
Interest will be computed on the basis of a 360-day year of twelve full 30-day
months and, for periods of less than one month, the actual number of days
elapsed. Interest on overdue principal and (to the extent permitted by law) on
overdue installments of interest will accrue at a rate equal to 9% per annum.
2. Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders
of Securities at the close of business on the May 15 or November 15 next
preceding the Interest Payment Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay principal,
premium, if any, and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. At the
Company's option, interest may be paid by check mailed to the registered address
of the Holder of this Security.
3. Paying Agent and Registrar. Initially, The Fuji Bank and Trust
Company (the "Trustee") will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Regis-
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trar or co-Registrar without notice. Neither the Company nor any of its
Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
4. Indenture. The Company issued the Securities under an Indenture
dated as of May 30, 1997 (the "Indenture") between the Company and the Trustee.
This Security is one of an issue of Securities of the Company issued under the
Indenture. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code (S)(S)77aaa-77bbbb) as amended from time to time. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and such Act for a statement of them. Capitalized terms used
herein and not otherwise defined have the meanings set forth in the Indenture.
The Securities are general unsecured obligations of the Company limited in
aggregate principal amount to $100,000,000. The Indenture limits, among other
things, the incurrence of certain Indebtedness by the Company and its
Subsidiaries; transactions by the Company and its Subsidiaries with certain
Affiliates; the granting of Liens by the Company or any of its Subsidiaries;
certain guarantees issued by Subsidiaries of the Company and the ability of the
Company and the Subsidiary Guarantors to merge with or into another entity. The
limitations are subject to a number of important qualifications and exceptions.
The Company must report to the Trustee annually whether it is in compliance with
the limitations contained in the Indenture.
5. Offers to Purchase. Section 4.11 of the Indenture provides upon
the occurrence of a Change of Control and subject to further limitations
contained therein, the Company shall make an offer to purchase the Securities in
accordance with the procedures set forth in the Indenture.
6. Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Securities in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the In-
A-3
denture. The Registrar need not transfer or exchange any Security or portion of
a Security selected for redemption, or transfer or exchange any Securities for a
period of 15 days before a selection of Securities to be redeemed.
7. Persons Deemed Owners. The registered holder of a Security may be
treated as the owner of it for all purposes.
8. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent will pay
the money back to the Company at its request. After that, Holders entitled to
the money must look to the Company for payment as general creditors unless an
"abandoned property" law designates another Person.
9. Amendment, Supplement, Waiver. The Company and the Trustee may,
without the consent of the holders of any outstanding Securities, amend, waive
or supplement the Indenture, the Securities or Subsidiary Guarantee for certain
specified purposes, including, among other things, curing ambiguities, defects
or inconsistencies, maintaining the qualification of the Indenture under the
Trust Indenture Act of 1939 or making any other change that does not adversely
affect the rights of any Holder. Other amendments and modifications of the
Indenture, the Securities or any Subsidiary Guarantee may be made by the Company
and the Trustee with the consent of the Holders of not less than a majority of
the aggregate principal amount of the outstanding Securities, subject to certain
exceptions requiring the consent of the Holders of the particular Securities to
be affected.
10. Successor Corporation. When a successor corporation assumes all
the obligations of its predecessor under the Securities and the Indenture and
the transaction complies with the terms of Article V of the Indenture, the
predecessor corporation, subject to certain exceptions, will be released from
those obligations.
11. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.1(a)(viii) or
(ix) of the Inden-
A-4
ture with respect to the Company) occurs and is continuing, then the holders of
not less than 25% in aggregate principal amount of the outstanding Securities
may, or the Trustee may, declare the principal of, premium, if any, plus accrued
interest, if any, to be due and payable immediately. If an Event of Default
specified in Section 6.1(a)(viii) or (ix) of the Indenture with respect to the
Company occurs and is continuing, the principal of, premium, if any, and accrued
interest on all of the Securities shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder. Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may require indemnity
reasonably satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Securities may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Securityholders notice of
any continuing default (except a default in payment of principal or interest or
a failure to comply with Article V of the Indenture) if it determines that
withholding notice is in their interests. The Company must furnish an annual
compliance certificate to the Trustee.
12. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
13. No Recourse Against Others. A director, officer, employee,
stockholder or beneficiary, as such, of the Company or any Subsidiary Guarantor
shall not have any liability for any obligations of the Company or any
Subsidiary Guarantor under the Securities, the Indenture or any Subsidiary
Guarantee or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
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14. Defeasance. The Indenture contains provisions (which provisions
apply to this Security) for defeasance at any time of (a) the entire
indebtedness of the Company and any Subsidiary Guarantor or this Security and
(b) certain restrictive covenants and related Defaults and Events of Default, in
each case upon compliance by the Company with certain conditions set forth
therein.
15. Authentication. This Security shall not be valid until the
Trustee signs the certificate of authentication on the other side of this
Security.
16. Abbreviations. Customary abbreviations may be used in the name
of a Securityholder or an assignee, such as: TEN COM (= tenants in common),
TENANT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
17. Subordination. The Company's payment of principal of, premium,
if any, and interest on the Securities is subordinated in right of payment, to
the extent and in the manner provided in Article XI of the Indenture, to the
prior payment in full of the Senior Indebtedness of the Company. Each Holder of
the Securities, by his acceptance hereof, covenants and agrees that all payments
of the principal of, premium, if any, and interest on the Securities by the
Company shall be subordinated in accordance with the provisions of Article XI of
the Indenture, and each Holder accepts and agrees to be bound by such
provisions.
18. GOVERNING LAW. THE INDENTURE, THIS SECURITY AND EACH SUBSIDIARY
GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
19. Guarantees. This Security may after the date hereof be entitled
to certain Subsidiary Guarantees made for the benefit of the Holders. Reference
is hereby made to Section 4.15 of the Indenture and to Exhibit B to the
Indenture for the terms of any Subsidiary Guarantee (including any terms of
subordination of such Subsidiary Guarantee that may apply).
A-6
The Company will furnish to any Securityholder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Navistar Financial Corporation
0000 X. Xxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
A-7
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax ID number)_______________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably
appoint ________________ agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
Date: Your signature:_______________________________________
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:____________________________________________________________
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 4.11 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 4.11 of the Indenture, state the amount: $ _________
Date:__________ Your Signature:_____________________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:________________________________
EXHIBIT B
ARTICLE XII
GUARANTEE OF SECURITIES
-----------------------
SECTION 12.1 Subsidiary Guarantee.
Subject to the provisions of this Article XII, each Subsidiary
Guarantor hereby jointly and severally unconditionally guarantees to each Holder
of a Security authenticated and delivered by the Trustee and to the Trustee and
its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Securities or the obligations of the Company or any other
Subsidiary Guarantors to the Holders or the Trustee hereunder or thereunder,
that: (a) the principal of, premium, if any, and interest on the Securities will
be duly and punctually paid in full when due, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest, if any, on the Securities and all other
obligations of the Company or the Subsidiary Guarantors to the Holders or the
Trustee hereunder or thereunder (including fees or expenses) and all other
obligations with respect to the Securities and this Indenture will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any
Securities, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed, or failing performance of any other obligation of the Company to
the Holders, for whatever reason, each Subsidiary Guarantor will be obligated to
pay, or to perform or cause the performance of, the same immediately. An Event
of Default under this Indenture or the Securities shall constitute an event of
default under this Subsidiary Guarantee, and shall entitle the Holders of
Securities to accelerate the obligations of the Subsidiary Guarantors hereunder
in the same manner and to the same extent as the obligations of the Company.
B-1
Each of the Subsidiary Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any holder of the Securities with
respect to any provisions hereof or thereof, any release of any other Subsidiary
Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Subsidiary Guarantee is affixed to any
particular Security, or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a guarantor. Each of the
Subsidiary Guarantors hereby waives the benefit of diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that its
Subsidiary Guarantee will not be discharged except by complete performance of
the obligations contained in the Securities, this Indenture and this Subsidiary
Guarantee. If any Holder or the Trustee is required by any court or otherwise
to return to the Company or to any Subsidiary Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Company
or such Subsidiary Guarantor, any amount paid by the Company or such Subsidiary
Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Subsidiary Guarantor further agrees that, as between it, on the one hand,
and the Holders of Securities and the Trustee, on the other hand, (a) subject to
this Article XII, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article VI hereof for the purposes of this Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (b) in
the event of any acceleration of such obligations as provided in Article VI
hereof, such obligations (whether or not due and payable) shall forthwith become
due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary
Guarantee.
This Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be
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filed by or against the Company for liquidation or reorganization, should the
Company become insolvent or make an assignment for the benefit of creditors or
should a receiver or trustee be appointed for all or any significant part of the
Company's assets, and shall, to the fullest extent permitted by law, continue to
be effective or be reinstated, as the case may be, if at any time payment and
performance of the Securities are, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee on
the Securities, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Securities shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
No stockholder, officer, director, employer or incorporator, past,
present or future, or any Subsidiary Guarantor, as such, shall have any personal
liability under this Subsidiary Guarantee by reason of his, her or its status as
such stockholder, officer, director, employer or incorporator.
The Subsidiary Guarantors shall have the right to seek contribution
from any non-paying Subsidiary Guarantor so long as the exercise of such right
does not impair the rights of the Holders under this Subsidiary Guarantee.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that the guarantee
by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute
a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar Federal or state law. To effectuate the foregoing intention, the
Holders and each Subsidiary Guarantor hereby irrevocably agrees that the
obligations of each Subsidiary Guarantor under the Subsidiary Guarantees shall
be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of each Subsidiary Guarantor (including, but
not limited to, the Guarantor Senior Indebtedness of each Subsidiary Guarantor)
re-
B-3
xxxx in the obligations of each Subsidiary Guarantor under the Subsidiary
Guarantees not constituting such fraudulent transfer or conveyance.
SECTION 12.2 Execution and Delivery of Subsidiary Guarantee.
To further evidence the Subsidiary Guarantee set forth in Section
12.1, each Subsidiary Guarantor hereby agrees that a notation of such Subsidiary
Guarantee, substantially in the form included in Exhibit C hereto, shall be
endorsed on each Security authenticated and delivered by the Trustee after such
Subsidiary Guarantee is executed and executed by either manual or facsimile
signature of an Officer of each Subsidiary Guarantor. The validity and
enforceability of any Subsidiary Guarantee shall not be affected by the fact
that it is not affixed to any particular Security.
Each of the Subsidiary Guarantors hereby agrees that its Subsidiary
Guarantee set forth in Section 12.1 shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Subsidiary Guarantee.
If an Officer of a Subsidiary Guarantor whose signature is on this
Indenture or a Security no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, such Subsidiary
Guarantor's Subsidiary Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Subsidiary Guarantee set
forth in this Indenture on behalf of the Subsidiary Guarantor.
SECTION 12.3 Additional Subsidiary Guarantors.
Any person may become a Subsidiary Guarantor by executing and
delivering to the Trustee (a) a supplemental indenture in form and substance
satisfactory to the Trustee, which subjects such person to the provisions of
this Indenture as a Subsidiary Guarantor, and (b) an Opinion of Counsel to the
effect that such supplemental indenture has been duly authorized and executed by
such person and constitutes the legal, valid,
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binding and enforceable obligation of such person (subject to such customary
exceptions concerning fraudulent conveyance laws, creditors' rights and
equitable principles as may be acceptable to the Trustee in its discretion).
SECTION 12.4 Release of a Subsidiary Guarantor.
(a) In the event that each other holder of Indebtedness of the
Company or of any of the Company's Subsidiaries of which a Subsidiary Guarantor
has guaranteed the payment thereof unconditionally releases a Subsidiary
Guarantor of all of its obligations under such guarantee pursuant to a written
agreement in form and substance satisfactory to the Trustee (other than a
release resulting from payment under such guarantee) such Subsidiary Guarantor
shall be automatically and unconditionally released from all obligations under
its Subsidiary Guarantee, provided that a release of a Subsidiary Guarantor may
only be obtained under the circumstances described in this sentence if an
Officers' Certificate to that effect has been delivered to the Trustee.
(b) In addition, except in the case where the prohibition on transfer
in Section 5.1(a) is applicable, upon the sale or disposition of all (but not
less than all) of the Capital Stock of a Subsidiary Guarantor by the Company or
a Subsidiary of the Company, or upon the consolidation or merger of a Subsidiary
Guarantor with or into any Person (in each case, other than to the Company or an
Affiliate of the Company), such Subsidiary Guarantor shall be deemed
automatically and unconditionally released and discharged from all obligations
under this Article XII without any further action required on the part of the
Trustee or any Holder, provided that each such Subsidiary Guarantor is sold or
disposed of in accordance with Article V.
(c) The Trustee shall deliver an appropriate instrument evidencing
the release of a Subsidiary Guarantor upon receipt of a request of the Company
accompanied by an Officers' Certificate certifying as to the compliance with
this Section 12.4. Any Subsidiary Guarantor not so released or the entity
surviving such Subsidiary Guarantor, as applicable, will remain
B-5
or be liable under its Subsidiary Guarantee as provided in this Article XII.
The Trustee shall execute any documents reasonably requested by the
Company or a Subsidiary Guarantor in order to evidence the release of such
Subsidiary Guarantor from its obligations under its Subsidiary Guarantee
endorsed on the Securities and under this Article XII.
Except as set forth in Articles IV and V and this Section 12.4,
nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of a Subsidiary Guarantor with or into the Company
or another Subsidiary Guarantor or shall prevent any sale or conveyance of the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or another Subsidiary Guarantor.
SECTION 12.5 Waiver of Subrogation.
Each Guarantor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against the Company or any of its
Subsidiaries that arise from the existence, payment, performance or enforcement
of such Subsidiary Guarantor's obligations under this Subsidiary Guarantee and
this Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder of Securities against the Company or any of its
Subsidiaries, whether or not such claim, remedy or right arises in equity, or
under contract, statute or common law, including, without limitation, the right
to take or receive from the Company or any of its Subsidiaries, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Subsidiary Guarantor in violation of the preceding sentence
and the Securities shall not have been paid in full, such amount shall have been
deemed to have been paid to such Subsidiary Guarantor for the benefit of, and
held in trust for the benefit of, the Holders of the Securities, and shall,
subject to the subordination provisions of this Article and to Article XI,
forthwith be paid to the Trustee for the
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benefit of such Holders to be credited and applied upon the Securities, whether
matured or unmatured, in accordance with the terms of this Indenture. Each
Subsidiary Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 12.5 is knowingly made in contemplation of
such benefits.
SECTION 12.6 Agreement to Subordinate.
Each Subsidiary Guarantor covenants and agrees, and each Holder of
Securities, by his acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by such Subsidiary Guarantor's Subsidiary Guarantee and
the payment of the principal of and interest on each and all of the Securities
pursuant to such Subsidiary Guarantor's Subsidiary Guarantee is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right of
payment to the prior payment in full of Guarantor Senior Indebtedness.
Anything in the Subsidiary Guarantee, the Securities or in this
Indenture to the contrary notwithstanding, the indebtedness evidenced by such
Subsidiary Guarantor's Subsidiary Guarantee shall be subordinate and junior in
right of payment, in all respects, to all Guarantor Senior Indebtedness of such
Subsidiary Guarantor, whether outstanding at the Issue Date or incurred after
the Issue Date. Without limiting the effect of the foregoing, "subordinate" and
"junior" as used herein shall include within their meanings the following:
(i) in the event of any insolvency or bankruptcy proceedings, and
any receivership, liquidation, reorganization or other similar proceedings
in connection therewith, relative to the Subsidiary Guarantor or its
creditors or its property, and in the event of any proceedings for
voluntary liquidation, dissolution or other winding up of the Subsidiary
Guarantor, whether or not involving insolvency or bankruptcy proceedings,
then (A) all Guarantor Senior Indebtedness of such Subsidiary Guarantor
shall first be paid in full, or such payment be provided for, before any
payment on account of principal or interest is made upon the Indebtedness
evidenced by the Subsidiary
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Guarantee of such Subsidiary Guarantor, and (B) in any such proceedings any
payment or distribution of any kind or character (including without
limitation any distribution realized from or attributable to any security
interest of the Holders of the Securities in property or assets of such
Subsidiary Guarantor), whether in cash or property or securities which may
be payable or deliverable in respect of the Subsidiary Guarantee of such
Subsidiary Guarantor, shall be paid or delivered directly to the holders of
such Guarantor Senior Indebtedness of such Subsidiary Guarantor (or the
representative or representatives of such holders or the trustee or
trustees under any indenture under which any instruments evidencing any of
such Guarantor Senior Indebtedness of such Subsidiary Guarantor shall have
been issued) for application in payment thereof, unless and until such
Guarantor Senior Indebtedness of such Subsidiary Guarantor shall have been
paid in full or such payment shall have been provided for; provided that
(1) in the event that payment or delivery of such cash, property or
securities to the Holders of the Securities is authorized by an order or
decree giving effect, and stating in such order or decree that effect is
given, to the subordination of the Subsidiary Guarantee of such Subsidiary
Guarantor to Guarantor Senior Indebtedness of such Subsidiary Guarantor,
and made by a court of competent jurisdiction in a reorganization
proceeding under any applicable law, no payment or delivery of such cash,
property or securities payable or deliverable with respect to the
Securities need be made to the holders of Guarantor Senior Indebtedness of
such Subsidiary Guarantor, (2) no such delivery need be made of securities
which are issued pursuant to voluntary reorganization, dissolution, or
liquidation proceedings by such Subsidiary Guarantor or by such Subsidiary
Guarantor as reorganized, if such securities are subordinate and junior to
the payment of all Guarantor Senior Indebtedness of such Subsidiary
Guarantor then outstanding to the same extent as the Subsidiary Guarantee
of such Subsidiary Guarantor and (3) if, pursuant to the foregoing, a
payment or delivery of cash, property or securities is to be made to the
holders of Guarantor Senior Indebtedness of such Subsidiary Guarantor (or
their representative or representatives or the trustee or
B-8
trustees under any indenture under which any instruments evidencing any
such Guarantor Senior Indebtedness of such Subsidiary Guarantor shall have
been issued) from a distribution realized from or attributable to any
security interest of the Holders of the Securities in property or assets of
such Subsidiary Guarantor, such payment or delivery shall be made (x)
first, to the holders of any Guarantor Senior Indebtedness of such
Subsidiary Guarantor (or their representative or representatives) secured
equally and ratably with the Holders of the Securities with respect to such
property or assets or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Guarantor Senior Indebtedness
of such Subsidiary Guarantor shall have been issued, ratably according to
the aggregate amounts remaining unpaid on account of such Guarantor Senior
Indebtedness of such Subsidiary Guarantor held or represented by each,
until such Guarantor Senior Indebtedness of such Subsidiary Guarantor shall
have been paid in full or such payment shall have been provided for and (y)
then, to the extent such payment or delivery shall not be required to pay
the Guarantor Senior Indebtedness of such Subsidiary Guarantor referred to
in the foregoing clause (x), to the other holders of Guarantor Senior
Indebtedness of such Subsidiary Guarantor (or their representative or
representatives or the trustee or trustees under any indenture under which
any instruments evidencing any of such Guarantor Senior Indebtedness of
such Subsidiary Guarantor shall have been issued), ratably according to the
aggregate amounts remaining unpaid on account of such Guarantor Senior
Indebtedness of such Subsidiary Guarantor held or represented by each,
until such Guarantor Senior Indebtedness of such Subsidiary Guarantor shall
have been paid in full or such payment shall have been provided for;
(ii) no payment or prepayment of any principal, premium (if any) or
interest on account of and no repurchase, redemption or other retirement
(whether at the option of the Holder or otherwise) of the Securities shall
be made, if at the time of such payment, prepayment, repurchase, redemption
or retirement, or immediately after giving effect thereto, there shall
exist a default in the payment
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or prepayment of any Guarantor Senior Indebtedness of such Subsidiary
Guarantor;
(iii) in the event that any Security is declared due and payable
because of the occurrence of an Event of Default (under circumstances when
the provisions of the foregoing clause (i) shall not be applicable), the
Holders of the Securities shall be entitled to payment only after there
shall first have been paid in full the Guarantor Senior Indebtedness of
such Subsidiary Guarantor outstanding at the time such Security so becomes
due and payable because of such Event of Default, or provision for such
payment shall have been made; and
(iv) in the event that (A) any of the events described in clauses
(i), (ii) and (iii) occurs and (B) notwithstanding the provisions therein,
any payment or distribution of assets of such Subsidiary Guarantor of any
kind or character (including any distribution realized from or attributable
to any security interest of the Holders of the Securities in property or
assets of such Subsidiary Guarantor), whether in cash, property or
securities, shall be received by the Holders of the Securities (or their
representative or representatives or the Trustee under this Indenture)
before all Guarantor Senior Indebtedness of such Subsidiary Guarantor shall
have been paid in full, or provision made for such payment in accordance
with the terms of the Guarantor Senior Indebtedness of such Subsidiary
Guarantor, except as provided in subclauses (1) and (2) of the proviso to
clause (i) above, such payment or distribution shall be held in trust for
the benefit of, and shall be paid over or delivered to, the holders of such
Guarantor Senior Indebtedness of such Subsidiary Guarantor (or their
representative or representatives or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such
Guarantor Senior Indebtedness of such Subsidiary Guarantor shall have been
issued), as their respective interests may appear under said clauses (i),
(ii) and (iii), for application to the payment of all such Guarantor Senior
Indebtedness of such Subsidiary Guarantor remaining unpaid to the extent
necessary to pay such Guarantor Senior Indebt-
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edness of such Subsidiary Guarantor in full in accordance with its terms,
after giving effect to any concurrent payment or distribution to the
holders of such Guarantor Senior Indebtedness of such Subsidiary Guarantor.
SECTION 12.7 Subrogation.
Subject to the payment in full of all Guarantor Senior Indebtedness,
holders of a Subsidiary Guarantee shall be subrogated to the rights of the
holders of Guarantor Senior Indebtedness of such Subsidiary Guarantor to receive
payments or distributions of cash, property or securities of such Subsidiary
Guarantor applicable to Guarantor Senior Indebtedness of such Subsidiary
Guarantor until all amounts owing on the Securities pursuant to such Subsidiary
Guarantor's Subsidiary Guarantee shall be paid in full, and as between such
Subsidiary Guarantor, its creditors other than holders of such Guarantor Senior
Indebtedness, and holders of such Subsidiary Guarantee, no such payment or
distribution made to the holders of such Guarantor Senior Indebtedness by virtue
of this Article XII which otherwise would have been made to such holders shall
be deemed to be a payment by such Subsidiary Guarantor on account of such
Guarantor Senior Indebtedness, it being understood that the provisions of this
Article XII are and are intended solely for the purpose of defining the relative
rights of the holders of such Subsidiary Guarantee, on the one hand, and the
holders of Guarantor Senior Indebtedness, on the other hand.
SECTION 12.8 Relative Rights.
Nothing contained in this Article XII or elsewhere in this Indenture
or in the Securities or this Subsidiary Guarantee is intended to or shall
impair, as between the Subsidiary Guarantor, its creditors other than the
holders of its Guarantor Senior Indebtedness, and the holders of its Subsidiary
Guarantee, the obligation of such Subsidiary Guarantor, which is absolute and
unconditional, to pay to the holders of the Securities pursuant to its
Subsidiary Guarantee the principal of and interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holders of its Subsidiary
Guarantee and creditors of such Subsidiary Guar-
B-11
antor other than the holders of its Guarantor Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any holder of its Subsidiary
Guarantee from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article XII of the holders of Guarantor Senior Indebtedness to receive cash,
property or securities otherwise payable or deliverable to the Securityholders.
Upon payment or distribution of assets of such Subsidiary Guarantor
referred to in this Article XII, the Trustee and the holders of the Securities
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of such Subsidiary Guarantor is
pending or upon a certificate of the trustee in bankruptcy, receiver, assignee
for the benefit of creditors, liquidating trustee, or agent or other person
making any payment or distribution, to the Trustee or to the holders of its
Subsidiary Guarantee for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of its Guarantor Senior
Indebtedness and other indebtedness of such Subsidiary Guarantor, the amount
thereof or payable thereon, the amount paid or distributed thereon and all other
facts pertinent thereto or to this Article XII.
Nothing contained in this Article or elsewhere in this Indenture, or
in any of the Securities or this Subsidiary Guarantee, shall affect the
obligations of such Subsidiary Guarantor to make, or prevent such Subsidiary
Guarantor from making, payment of the principal of or interest on the Securities
pursuant to its Subsidiary Guarantee in accordance with the provisions hereof
and thereof, except as otherwise provided in this Article XII.
SECTION 12.9 Trustee to Effectuate Subordination.
Each holder of a Subsidiary Guarantee, by his acceptance thereof,
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XII and ap-
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points the Trustee his attorney-in-fact for any and all such purposes.
SECTION 12.10 Trustee Not Fiduciary for Holders of Guarantor Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to holders of a Subsidiary
Guarantee or any Subsidiary Guarantor or any other person moneys or assets to
which any holders of Guarantor Senior Indebtedness shall be entitled by virtue
of this Article XII or otherwise.
SECTION 12.11 Notice By Subsidiary Guarantor.
The Subsidiary Guarantor shall give prompt written notice to the
Trustee of any fact known to such Subsidiary Guarantor that would prohibit the
making of any payment of moneys to or by the Trustee pursuant to this Article.
Subject to the provisions of Sections 7.5 and 7.1 but notwithstanding any other
provisions of this Indenture, the Trustee and any Paying Agent shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of moneys to or by the Trustee or such Paying Agent, or
the taking of any other action by the Trustee or such Paying Agent, unless and
until the Trustee or such Paying Agent shall have received written notice
thereof from such Subsidiary Guarantor at least three Business Days prior to the
making of any such payment, the Securityholders, the holders of any Guarantor
Senior Indebtedness or the representative of any such holders.
SECTION 12.12 Rights of Trustee.
The Trustee shall be entitled to all the rights set forth in this
Article XII with respect to any Guarantor Senior Indebtedness of such Subsidiary
Guarantor by the time held by the Trustee, to the same extent as any other
holder of Guarantor Senior Indebtedness.
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SECTION 12.13 Subsidiary Guarantor May Not Impair Subordination.
No right of any present or future holder of any Guarantor Senior
Indebtedness of such Subsidiary Guarantor to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired by any act or failure
to act on the part of such Subsidiary Guarantor or by any noncompliance by such
Subsidiary Guarantor with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
SECTION 12.14 Rights of Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall require
otherwise) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article XII in addition to or in place of the Trustee, provided
that Sections 12.11 and 12.12 shall not apply to such Subsidiary Guarantor if it
acts as Paying Agent.
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EXHIBIT C
GUARANTEE
---------
For value received, the undersigned hereby unconditionally guarantees
to the Holder of this Security the payments of principal of, premium, if any,
and interest on this Security in the amounts and at the time when due and
interest on the overdue principal, premium, if any, and interest, if any, of
this Security, if lawful, and the payment or performance of all other
obligations of the Company under the Indenture or the Securities, to the Holder
of this Security and the Trustee, all in accordance with and subject to the
terms and limitations of this Security, Article XII of the Indenture and this
Subsidiary Guarantee. This Subsidiary Guarantee will become effective in
accordance with Article XII of the Indenture and its terms shall be evidenced
therein. The validity and enforceability of any Subsidiary Guarantee shall not
be affected by the fact that it is not affixed to any particular Security.
The obligations of the undersigned to the Holders of Securities and to
the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly
set forth in Article XII of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Subsidiary Guarantee and all of the other
provisions of the Indenture to which this Subsidiary Guarantee relates. The
Indebtedness evidenced by this Subsidiary Guarantee is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full in cash or cash equivalents of all Guarantor Senior
Indebtedness as defined in the Indenture, and this Subsidiary Guarantee is
issued subject to such provisions. Each Holder of a Security, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee, on behalf of such Holder, to take such action as may be
necessary to appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such
purpose, provided that such subordination provisions shall cease to affect
amounts deposited in accordance with the defeasance provisions of the Indenture
upon the terms and conditions set forth therein.
This Subsidiary Guarantee is subject to release upon the terms set
forth in the Indenture.
[NAME OF GUARANTOR]
By:______________________
Name:
Title:
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EXHIBIT D
FORM OF CERTIFICATE OF TRANSFER
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention:
[Name and Address of Registrar]
Re: 9% Senior Subordinated Notes due 2002
Reference is hereby made to the Indenture, dated as of May 30, 1997
(the "Indenture"), between Navistar Financial Corporation (the "Issuer") and The
Fuji Bank and Trust Company, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
________________, (the "Transferor") owns and proposes to transfer the
Security[s] specified in Annex A hereto in the principal amount of $___ in such
Security[s] (the "Transfer"), to ________ (the "Transferee"), as further
specified in Annex A hereto. In the event that Transferor holds Physical
Securities, this Certificate is accompanied by one or more certificates
aggregating at least the principal amount of Securities proposed to be
Transferred. In connection with the Transfer, the Transferor hereby certifies
that:
1. [_] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE 144A GLOBAL SECURITY.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
Securities are being transferred to a Person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance
D-1
with any applicable blue sky securities laws of any state of the United States.
Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred Security will be subject to the restrictions on
transfer enumerated in the Securities Act Legend and in the Indenture and the
Securities Act.
2. [_] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE REGULATION S GLOBAL
SECURITY PURSUANT TO REGULATION S. The Transfer is being effected pursuant to
and in accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a
person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 904(b) of Regulation
S under the Securities Act and (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the Security will be subject to the restrictions on Transfer
enumerated in the Securities Act Legend printed on the Regulation S Global
Security and in the Indenture and the Securities Act.
3. [_] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A RESTRICTED
PHYSICAL SECURITY PURSUANT TO RULE 144A OR REGULATION S. One or more of the
events specified in Section 2.6(a) of the Indenture have occurred and the
Transfer is being effected in compliance with the transfer restrictions
applicable to Securities bearing the Securities Act Legend and pursuant to and
in accordance with the Securities Act, and accordingly the Transferor hereby
further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144A under the Securities Act and the
D-2
Transferor certifies to the effect set forth in paragraph 1 above; or
(b) [_] such Transfer is being effected pursuant to and in accordance
with Rule 904 under the Securities Act and the Transferor certifies to the
effect set forth in paragraph 2 above.
4. [_] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE UNRESTRICTED GLOBAL
SECURITY The Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture, and the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not
D-3
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transfer Securities will no longer be subject to the restrictions
on transfer enumerated in the Securities Act Legend and in the Indenture and the
Securities Act.
5. [_] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE PHYSICAL GLOBAL
SECURITY THAT DOES NOT BEAR THE SECURITIES ACT LEGEND One or more of the events
specified in Section 2.6(a) of the Indenture have occurred and the Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture,
and the restrictions on transfer contained in the Indenture and the Securities
Act Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred Securities will no longer be subject to the
restrictions on transfer enumerated in the Securities Act Legend and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Guarantors.
___________________________________
[Insert Name of Transferor]
By: _______________________________
Name:
Title:
Dated:_________________
D-4
FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] Interests in the
(i) [_] 144A Global Security (CUSIP _____), or
(ii) [_] Regulation S Global Security (CINS _____).
(b) [_] Physical Security.
2. That the Transferee will hold:
[CHECK ONE]
(a) [_] Interests in the:
(i) [_] 144A Global Security (CUSIP _____), or
(ii) [_] Regulation S Global Security (CINS _____), or
(iii) [_] Unrestricted Global Security (CUSIP _____); or
(b) [_] Physical Securities that bear the Securities Act Legend;
(c) [_] Physical Securities that do not bear the Securities Act Legend;
in accordance with the terms of the Indenture.
D-5
EXHIBIT E
FORM OF CERTIFICATE OF EXCHANGE
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention:
[Name and Address of Registrar]
Re: 9% Senior Subordinated Notes due 2002
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of May 30, 1997
(the "Indenture"), between Navistar Financial Corporation (the "Issuer") and The
Fuji Bank and Trust Company, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________, (the "Holder") owns and proposes to exchange the
Security[s] specified herein, in the principal amount of $___ in such
Security[s] (the "Exchange"). In the event Holder holds Physical Securities,
this Certificate is accompanied by one or more certificates aggregating at least
the principal amount of Securities proposed to be Exchanged. In connection with
the Exchange, the Holder hereby certifies that:
1. EXCHANGE OF RESTRICTED PHYSICAL SECURITIES OR INTERESTS IN THE INITIAL
GLOBAL SECURITY FOR PHYSICAL SECURITIES THAT DO NOT BEAR THE SECURITIES ACT
LEGEND OR UNRESTRICTED GLOBAL SECURITIES
(a) [_] CHECK IF EXCHANGE IS FROM INITIAL GLOBAL SECURITIES TO THE
UNRESTRICTED GLOBAL SECURITY. In connection with the Exchange of the Holder's
Initial Global Security to the Unrestricted Global Security in an equal
principal amount, the Holder hereby certifies (i) the Unrestricted Global
Securities are being acquired for the Holder's own account without transfer,
(ii) such Exchange has been effected in compliance with
E-1
the transfer restrictions applicable to the Initial Global Securities and
pursuant to and in accordance with the Securities Act of 1933, as amended (the
"Securities Act") and (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act.
(B) [_] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO AN
INTEREST IN THE UNRESTRICTED GLOBAL SECURITY. In connection with the Holder's
Exchange of Restricted Physical Securities for Interest in the Unrestricted
Global Security, (i) the Interest in the Unrestricted Global Security are being
acquired for the Holder's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Physical Securities and pursuant to and in accordance with the
Securities Act and (iii) the restrictions on transfer contained in the Indenture
and the Securities Act Legend are not required in order to maintain compliance
with the Securities Act.
(C) [_] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO
PHYSICAL SECURITIES THAT DO NOT BEAR THE SECURITIES ACT LEGEND. In connection
with the Holder's Exchange of a Restricted Physical Security for Physical
Securities that do not bear the Securities Act Legend, the Holder hereby
certifies (i) the Physical Securities that do not bear the Securities Act Legend
are being acquired for the Holder's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Physical Securities and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act and (iv) one or more of the events specified
in Section 2.6(a) of the Indenture have occurred.
2. [_] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO INTERESTS
IN AN INITIAL GLOBAL SECURITY . In connection with the Exchange of the Holder's
Restricted Physical Security for interests in the Initial Global Security in the
[CHECK ONE] [_] 144A Global Security, [_] Regulation S Global Se
E-2
curity, with an equal principal amount, (i) the interests in the Initial Global
Security are being acquired for the Holder's own account without transfer and
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Physical Security and pursuant to and
in accordance with the Securities Act. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Initial Global
Security issued will be subject to the restrictions on transfer enumerated in
the Securities Act Legend printed on the Initial Global Securities and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Guarantors.
______________________________
[Insert Name of Holder]
By: __________________________
Name:
Title:
Dated:_________________
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