EXHIBIT 4.2
Xxxx Corp.
as Issuer
Xxxx Asset Management, Inc.
Xxxx Machinery, Inc.
Xxxx Rental, Inc. and
Air Rental & Supply, Inc.,
as Guarantors
up to $200,000,000
10 1/4% Senior Subordinated Notes
due 2008
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INDENTURE
Dated as of December 9, 1998
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State Street Bank and Trust Company,
as Trustee
INDENTURE dated as of December 9, 1998, among Xxxx Corp, a
Delaware corporation (the "Company"), and Xxxx Asset Management, Inc., a
Delaware corporation, Xxxx Machinery, Inc., a Florida corporation, Xxxx Rental,
Inc., a Florida corporation, and Air Rental & Supply, Inc., a Texas corporation,
each as guarantors and any other Subsidiaries (as defined herein) of the Company
that executes a Subsidiary Guarantee (as defined herein) guaranteeing the Notes
in accordance with the provisions hereof (collectively, the "Guarantors"), and
State Street Bank and Trust Company, as trustee (the "Trustee").
Each party agrees as follows for the benefit of each other and
for the equal and ratable benefit of the Holders of the 10 1/4% Series A Senior
Subordinated Notes due 2008 issued under this Indenture (the "Series A Notes")
and the 10 1/4% Series B Senior Subordinated Notes due 2008 issued under this
Indenture (the "Series B Notes" and, together with the Series A Notes, the
"Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with the
Company or any of its Subsidiaries or assumed in connection with the acquisition
of assets from such Person and in each case not incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such acquisition, merger or
consolidation.
"ADDITIONAL INTEREST" means all Additional Interest then owing
pursuant to Section 4 of the Registration Rights Agreement.
"AFFILIATE" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, 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.
"ASSET ACQUISITION" means (a) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Company or any
Restricted Subsidiary of the Company, or shall be merged with or into the
Company or any Restricted Subsidiary of the Company, or (b) the acquisition by
the Company or any Restricted Subsidiary of the Company of the assets of any
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Person (other than a Restricted Subsidiary of the Company) which constitute all
or substantially all of the assets of such Person or comprises any division or
line of business of such Person or any other properties or assets of such Person
other than in the ordinary course of business.
"ASSET SALE" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Wholly Owned Restricted
Subsidiary of the Company of (a) any Capital Stock of any Restricted Subsidiary
of the Company; or (b) any other property or assets of the Company or any
Restricted Subsidiary of the Company other than in the ordinary course of
business; PROVIDED, HOWEVER, that Asset Sales shall not include (i) a
transaction or series of related transactions for which the Company or its
Restricted Subsidiaries receive aggregate consideration of less than $1.0
million, (ii) the sale, lease, conveyance, disposition or other transfer of all
or substantially all of the assets of the Company as permitted under Section
5.01 of this Indenture, (iii) disposals or replacements of obsolete or outdated
equipment in the ordinary course of business and (iv) the sale or discount, in
each case without recourse (other than recourse for a breach of a representation
or warranty), of accounts receivable arising in the ordinary course of business,
but only in connection with the compromise or collection thereof in the ordinary
course of business and not as part of a financing transaction.
"BANKRUPTCY LAW" means title 11, U.S. Code or any similar
Federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"BOARD RESOLUTION" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
"BUSINESS DAY" means a day that is not a Legal Holiday.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"CAPITAL STOCK" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
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"CASH EQUIVALENTS" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Corporation ("S&P") or
Xxxxx'x Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no
more than one year from the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit or bankers' acceptances maturing within
one year from the date of acquisition thereof issued by any bank organized under
the laws of the United States of America or any state thereof or the District of
Columbia or any U.S. branch of a foreign bank having at the date of acquisition
thereof combined capital and surplus of not less than $250,000,000; (v)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (iv) above; and (vi) investments
in money market funds which invest substantially all their assets in securities
of the types described in clauses (i) through (v) above.
"CERTIFICATED NOTE" has the meaning set forth in Section
2.06(d)(i) hereof.
"CHANGE OF CONTROL" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a "Group"), together with any Affiliates
thereof (whether or not otherwise in compliance with the provisions of the
Indenture) (other than to the Permitted Holders); (ii) the approval by the
holders of Capital Stock of the Company of any plan or proposal for the
liquidation or dissolution of the Company (whether or not otherwise in
compliance with the provisions of the Indenture); (iii) any Person or Group
(other than the Permitted Holders(s)) shall become the owner, directly or
indirectly, beneficially or of record, of shares representing more than 50
percent of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock of the Company; or (iv) the replacement of a majority
of the Board of Directors of the Company over a two-year period from the
directors who constituted the Board of Directors of the Company at the beginning
of such period, and such replacement shall not have been approved by a vote of
at least a majority of the Board of Directors of the Company then still in
office who either were members of such Board of Directors at the beginning of
such period or whose election as a member of such Board of Directors was
previously so approved.
"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.
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"COMMON STOCK OFFERING" means the initial public offering of
the Company's Class A Common Stock, including the exercise of the over-allotment
option, if any, pursuant to the Registration Statement on Form S-1 (File No.
333-48077), originally filed on March 17, 1998, as amended, modified or
supplemented.
"CONSOLIDATED EBITDA" means, with respect to any Person, for
any period, the sum (without duplication) of (i) Consolidated Net Income and
(ii) to the extent Consolidated Net Income has been reduced thereby, (A) all
income taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions outside the ordinary course of business), (B) Consolidated
Interest Expense and (C) Consolidated Non-cash Charges LESS any non-cash items
increasing Consolidated Net Income for such period, all as determined on a
consolidated basis for such Person and its Restricted Subsidiaries in accordance
with GAAP.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, with respect
to any Person, the ratio of Consolidated EBITDA of such Person during the four
full fiscal quarters (the "Four Quarter Period") ending on or prior to the date
of the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of
such Person for the Four Quarter Period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated EBITDA" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a PRO
FORMA (including any pro forma expense and cost reductions calculated on a basis
consistent with Regulation S-X under the Securities Act) basis for the period of
such calculation to (i) the incurrence or repayment of any Indebtedness of such
Person or any of its Restricted Subsidiaries (and the application of the
proceeds thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the application of the
proceeds thereof), other than the incurrence or repayment of Indebtedness in the
ordinary course of business for working capital purposes pursuant to working
capital facilities, occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior to the
Transaction Date, as if such incurrence or repayment, as the case may be (and
the application of the proceeds thereof), occurred on the first day of the Four
Quarter Period and (ii) any Asset Sales or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Restricted Subsidiaries
(including any Person who becomes a Restricted Subsidiary as a result of the
Asset Acquisition) incurring, assuming or otherwise being liable for Acquired
Indebtedness and also including any Consolidated EBITDA (provided that such
Consolidated EBITDA shall be included only to the extent includable pursuant to
the definition of "Consolidated Net Income") attributable to the assets which
are the subject of the Asset Acquisition or Asset Sale during the Four Quarter
Period) occurring during the Four Quarter Period or at any time subsequent to
the last day of the Four Quarter Period and on or prior to the Transaction Date,
as if such Asset Sale or Asset Acquisition (including the incurrence, assumption
or liability for any such Acquired Indebtedness) occurred on the first day of
the Four Quarter Period. If such Person or any of its Restricted Subsidiaries
directly or indirectly guarantees Indebtedness of a third Person, the preceding
sentence shall give effect to the incurrence of such guaranteed Indebtedness as
if such
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Person or any Restricted Subsidiary of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness. Furthermore, in calculating
"Consolidated Fixed Charges" for purposes of determining the denominator (but
not the numerator) of this "Consolidated Fixed Charge Coverage Ratio," (1)
interest on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall be
deemed to have accrued at a fixed rate per annum equal to the rate of interest
on such Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Four Quarter Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
such agreements.
"CONSOLIDATED FIXED CHARGES" means, with respect to any Person
for any period, the sum, without duplication, of (i) Consolidated Interest
Expense, plus (ii) the product of (x) the amount of all dividend payments on any
series of Preferred Stock of such Person (other than dividends paid in Qualified
Capital Stock) paid, accrued or scheduled to be paid or accrued during such
period times (y) a fraction, the numerator of which is one and the denominator
of which is one minus the then current effective consolidated federal, state and
local income tax rate of such Person, expressed as a decimal.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any
Person for any period, the sum of, without duplication: (i) the aggregate of the
interest expense of such Person and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including without
limitation, (a) any amortization of debt discount and amortization or write-off
of deferred financing costs, (b) the net costs under Interest Swap Obligations,
(c) all capitalized interest and (d) the interest portion of any deferred
payment obligation; and (ii) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such Person
and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, with respect to any Person,
for any period, the aggregate net income (or loss) of such Person and its
Restricted Subsidiaries for such period on a consolidated basis, determined in
accordance with GAAP; PROVIDED that there shall be excluded therefrom (a) for
purposes of calculating the Consolidated Fixed Charge Coverage Ratio only,
after-tax gains or losses (net of any related fees and expenses) from Asset
Sales or abandonments or reserves relating thereto, (b) after-tax items
classified as extraordinary or nonrecurring gains or losses, (c) the net income
(or loss) of any Person acquired in a "pooling of interests" transaction accrued
prior to the date it becomes a Restricted Subsidiary of the referent Person or
is merged or consolidated with the referent Person or any Restricted Subsidiary
of the referent Person, (d) the net income (but not loss) of any Restricted
Subsidiary of the referent Person to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of that income
is restricted by a contract, operation of law or otherwise, (e) the net income
of any Person, other
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than a Restricted Subsidiary of the referent Person, except to the extent of
cash dividends or distributions paid to the referent Person or to a Restricted
Subsidiary of the referent Person by such Person (in the case that any such
Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary, the portion
of net income included therein will be equal to the Company's interest in such
Restricted Subsidiary), (f) for purposes of calculating the Consolidated Fixed
Charge Coverage Ratio only, 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, (g) 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 (h) 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 NET WORTH" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person, PROVIDED that the Consolidated Net
Worth of any Person shall exclude the effect of any non-cash charges relating to
the acceleration of stock options or similar securities of such Person or
another Person with which such Person is merged or consolidated.
"CONSOLIDATED NON-CASH CHARGES" means, with respect to any
Person, for any period, the aggregate depreciation, amortization and other
non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP (excluding
any such charges constituting an extraordinary item or loss or any such charge
which requires an accrual of or a reserve for cash charges for any future
period).
"CORPORATE TRUST ADMINISTRATION OFFICE OF THE TRUSTEE" shall
be at either address of the Trustee specified in Section 12.02 hereof or such
other address as to which the Trustee may give notice to the Company.
"CREDIT AGREEMENT" means the Amended and Restated Credit
Agreement dated as of May 1, 1998, among the Company, Xxxx Rental, Inc., Xxxx
Machinery, Inc., the lenders party thereto in their capacities as lenders
thereunder and Bankers Trust Company, as agent, together with the related
documents thereto (including, without limitation, any guarantee agreements and
security documents), in each case as such agreements may be amended (including
any amendment and restatement thereof), supplemented or otherwise modified from
time to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder or adding Restricted Subsidiaries of the Company
as additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
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"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary of the Company against
fluctuations in currency values.
"DEFAULT" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an Event
of Default.
"DEPOSITARY" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, until a successor shall have
been appointed and become such Depositary pursuant to the applicable provision
of this Indenture, and, thereafter, "Depositary" shall mean or include such
successor.
"DESIGNATED SENIOR DEBT" means (i) Indebtedness under or in
respect of the Credit Agreement and (ii) any other Indebtedness constituting
Senior Debt which, at the time of determination, has an aggregate principal
amount of at least $25,000,000 and is specifically designated in the instrument
evidencing such Senior Debt as "Designated Senior Debt" by the Company.
"DISQUALIFIED CAPITAL STOCK" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof on or prior to the final maturity date of the Notes.
"ELIGIBLE ACCOUNTS" has the meaning specified in the Credit
Agreement.
"ELIGIBLE FINANCED EQUIPMENT" has the meaning specified in the
Credit Agreement.
"ELIGIBLE PARTS INVENTORY" has the meaning specified in the
Credit Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"EXCHANGE OFFER" means the offer that may be made by the
Company pursuant to the Registration Rights Agreement to exchange Series B Notes
for Series A Notes.
"FAIR MARKET VALUE" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. Unless the TIA otherwise requires, fair market value shall be
determined by the Board of Directors of the Company acting reasonably and in
good faith (which determination shall be conclusive) and shall be evidenced by a
Board Resolution of the Board of Directors of the Company delivered to the
Trustee.
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"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. All ratios and computations based on GAAP contained in the Indenture
shall be computed in conformity with GAAP applied on a consistent basis, except
that calculations made for purposes of determining compliance with the terms of
the covenants and with other provisions of the Indenture shall be made without
giving effect to (i) the deduction or amortization of any premiums, fees and
expenses incurred in connection with any financings or any other permitted
incurrence of Indebtedness and (ii) depreciation, amortization or other expenses
recorded as a result of the application of purchase accounting in accordance
with Accounting Principles Board Opinion Nos. 16 and 17.
"GLOBAL NOTE" means a Note that contains the paragraph
referred to in footnote 1 to the form of the Note attached hereto as Exhibit A.
"GUARANTEE" means any obligation, contingent or otherwise, of
any person directly or indirectly guaranteeing any Indebtedness of any Person
and 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 Person (whether arising by virtue of agreements to
keep well, to purchase assets, goods, letters of credit, reimbursement
agreements, securities or services, to take-or-pay or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose 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, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business or
guarantees (other than guarantees of Indebtedness) by the Company in respect of
assisting one or more Subsidiaries in the ordinary course of their respective
businesses, including without limitation guarantees of trade obligations and
operating leases, on ordinary business terms. The term "Guarantee" used as a
verb has corresponding meaning. The Subsidiary Guarantees shall constitute
Guarantees under this Indenture.
"GUARANTOR" means (i) each of Xxxx Rental, Inc., Xxxx
Machinery, Inc., Xxxx Asset Management, Inc. and Air Rental & Supply, Inc. and
(ii) each of the Company's Restricted Subsidiaries that in the future executes a
supplemental indenture in which such Restricted Subsidiary agrees to be bound by
the terms of the Indenture as a Guarantor; PROVIDED that any Person constituting
a Guarantor as described above shall cease to constitute a Guarantor when its
respective Guarantee is released in accordance with the terms of the Indenture.
"GUARANTOR SENIOR DEBT" means with respect to any Guarantor,
(i) the principal of, premium, if any, and interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on any Indebtedness of a
Guarantor, whether outstanding on the Issue Date or thereafter created, incurred
or assumed,
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unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Guarantee of such Guarantor. Without limiting the generality of the foregoing,
"Guarantor Senior Debt" shall also include the principal of, premium, if any,
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law)
on, and all other amounts owing in respect of, (x) all monetary obligations
(including guarantees thereof) of every nature of such Guarantor under the
Credit Agreement, including, without limitation, obligations to pay principal
and interest, reimbursement obligations under letters of credit, fees, expenses
and indemnities, (y) all Interest Swap Obligations (including guarantees
thereof) and (z) all obligations (including guarantees thereof) under Currency
Agreements, in each case whether outstanding on the Issue Date or thereafter
incurred. Notwithstanding the foregoing, "Guarantor Senior Debt" shall not
include (i) any Indebtedness of such Guarantor to a Restricted Subsidiary of
such Guarantor or any Affiliate of such Guarantor or any of such Affiliate's
Subsidiaries, (ii) Indebtedness to, or guaranteed on behalf of, any shareholder,
director, officer or employee of such Guarantor or any Restricted Subsidiary of
such Guarantor (including, without limitation, amounts owed for compensation),
(iii) Indebtedness to trade creditors and other amounts incurred in connection
with obtaining goods, materials or services (excluding purchase money
indebtedness to equipment manufacturers), (iv) Indebtedness represented by
Disqualified Capital Stock, (v) any liability for federal, state, local or other
taxes owed or owing by such Guarantor, (vi) that portion of any Indebtedness
incurred in violation of Section 4.10 of this Indenture (but, as to any such
obligation, no such violation shall be deemed to exist for purposes of this
clause (vi) if the holder(s) of such obligation or their representative and the
Trustee shall have received an Officers' Certificate of the Company to the
effect that the incurrence of such Indebtedness does not (or, in the case of
revolving credit Indebtedness, that the incurrence of the entire committed
amount thereof at the date on which the initial borrowing thereunder is made
would not) violate such provisions of the Indenture), (vii) Indebtedness which,
when incurred and without respect to any election under Section 1111(b) of Xxxxx
00, Xxxxxx Xxxxxx Code, is without recourse to the Company and (viii) any
Indebtedness which is, by its express terms, subordinated in right of payment to
any other Indebtedness of such Guarantor.
"HOLDER" means a Person in whose name a Note is registered on
the Registrar's books.
"INDEBTEDNESS" means with respect to any Person, without
duplication, (i) all Obligations of such Person for borrowed money, (ii) all
Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such Person,
(iv) all Obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all Obligations under
any title retention agreement (but excluding trade accounts payable and other
accrued liabilities arising in the ordinary course of business), (v) all
Obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction, (vi) guarantees and other
contingent obligations in respect of Indebtedness referred to in clauses (i)
through (v) above and clause (viii) below, (vii) all Obligations of any other
Person of the type referred to in clauses (i)
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through (vi) which are secured by any lien on any property or asset of such
Person, the amount of such Obligation being deemed to be the lesser of the fair
market value of such property or asset or the amount of the Obligation so
secured, (viii) all Obligations under currency agreements and interest swap
agreements of such Person and (ix) 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. For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Capital Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Capital
Stock as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to the Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock. Indebtedness shall not include any liability for (i)
federal, state, local or other taxes, (ii) endorsements or negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business or (iii) any indebtedness that has been defeased or satisfied
in accordance with the terms of the documents governing such indebtedness.
The amount of Indebtedness of any Person at any date shall be
the outstanding balance on such date of all unconditional Obligations as
described above, and the maximum liability upon the occurrence of the
contingency giving rise to the Obligation, on any contingent Obligations at such
date; PROVIDED, HOWEVER, that the amount outstanding at any time of any
Indebtedness incurred with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with
GAAP.
"INDENTURE" means this Indenture, as amended or supplemented
from time to time.
"INDEPENDENT FINANCIAL ADVISOR" means a firm (i) which does
not, and whose directors, officers and employees or Affiliates do not, have a
direct or indirect financial interest in the Company and (ii) which, in the
judgment of the Board of Directors of the Company, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"INTEREST SWAP OBLIGATIONS" means the obligations of any
Person pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"INVESTMENT" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
10
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any Person. "Investment" shall exclude extensions of trade credit by
the Company and its Restricted Subsidiaries on commercially reasonable terms in
accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be. For the purposes of Section 4.09 of this
Indenture, (i) "Investment" shall include and be valued at the fair market value
of the net assets of any Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary and shall exclude the fair
market value of the net assets of any Unrestricted Subsidiary at the time that
such Unrestricted Subsidiary is designated a Restricted Subsidiary and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by the Company or any of its Restricted
Subsidiaries, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, reduced by
the payment of dividends or distributions in connection with such Investment or
any other amounts received in respect of such Investment; PROVIDED that no such
payment of dividends or distributions or receipt of any such other amounts shall
reduce the amount of any Investment if such payment of dividends or
distributions or receipt of any such amounts would be included in Consolidated
Net Income. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company (other than all of the Common Stock of such Restricted
Subsidiary) such that, after giving effect to any such sale or disposition, the
Company no longer owns, directly or indirectly, 100 percent of the outstanding
Common Stock of such Restricted Subsidiary, the Company shall be deemed to have
made an Investment on the date of any such sale or disposition equal to the fair
market value of the Common Stock of such Restricted Subsidiary not sold or
disposed of.
"ISSUE DATE" means the date of original issuance of the Series
A Notes.
"JUNIOR SECURITIES" of the Company or any Guarantor means
securities of the Company or such Guarantor that are junior in right of payment
to the Notes or the applicable Guarantee.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or the city in which the principal
corporate trust office of the Trustee is located, or at a place of payment are
authorized by law, regulation or executive order to remain closed. 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.
"LIEN" means any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"MAY 1998 GUARANTEES" means the Guarantees of any of the
Guarantors entered into in connection with the issuance of the May 1998 Notes.
11
"MAY 1998 NOTES" means the 10 1/4% Senior Subordinated Notes
due 2008 of the Company issued on May 28, 1998.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions), (b) taxes paid or payable after
taking into account any reduction in consolidated tax liability due to available
tax credits or deductions and any tax sharing arrangements, (c) repayment of
Indebtedness that either (A) is secured by a Lien on the property or assets sold
or (B) is required to be repaid in connection with such Asset Sale (or in order
to obtain a consent required in connection therewith), (d) appropriate amounts
to be provided by the Company or any Restricted Subsidiary, as the case may be,
as a reserve, in accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by the Company or any Restricted Subsidiary, as the
case may be, after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, (e) any consideration for an Asset Sale (which would otherwise
constitute Net Cash Proceeds) that is required to be held in escrow pending
determination of whether a purchase price adjustment will be made, but amounts
under this clause (e) shall become Net Cash Proceeds at such time and to the
extent such amounts are released to such Person and (f) a pro rata portion of
the amount of cash or Cash Equivalents received by any non-Guarantor Restricted
Subsidiary that are held by Persons other than the Company or its Restricted
Subsidiaries.
"NOTE CUSTODIAN" means the Trustee, as custodian with respect
to the Global Notes, or any successor entity thereto.
"OBLIGATIONS" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"OFFERING" means the Offering of the Notes by the Company.
"OFFICER" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the General Counsel, the Controller, the Secretary or any Vice-President of such
Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.
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"OPINION OF COUNSEL" means a written opinion in form and
substance reasonably satisfactory to the Trustee and from legal counsel who is
reasonably acceptable to the Trustee that meets the requirements of Section
12.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"PARTS INVENTORY" has the meaning specified in the Credit
Agreement.
"PERMITTED HOLDER(S)" means (i) Xxxxx Mas, Xxxx Xxxxxx Mas and
Xxxx Xxxxx Mas and any of their respective Affiliates, spouses, siblings, lineal
descendants or lineal ascendants or any trust for the benefit of such persons,
(ii) General Electric Capital Corporation and GECFS, Inc. and their Affiliates,
(iii) Xxxxx X. Xxxxxxxxxx, (iv) Xxxxxx Fund L.L.P., Xxxxxx Capital Advisors,
Inc. and their Affiliates and (v) an entity (a "Holding Company") that owns,
directly or indirectly, beneficially or of record, 100 percent of the ordinary
voting power represented by the outstanding Capital Stock of the Company,
PROVIDED that no Person or Group (other than a Permitted Holder) becomes the
owner, directly or indirectly, beneficially or of record, of more than 50
percent of the ordinary voting power represented by the outstanding Capital
Stock of such Holding Company.
"PERMITTED INDEBTEDNESS" means, without duplication, each of
the following:
(i) Indebtedness under the Notes, the Indenture and the
Guarantees in an aggregate principal amount not to exceed $100.0
million;
(ii) Indebtedness under the May 1998 Notes, and the indenture
and the guarantees related thereto, in an aggregate principal amount
not to exceed $100.0 million;
(iii) Indebtedness incurred pursuant to the Credit Agreement
in an aggregate principal amount at any time outstanding not to exceed
the greater of (A) $350.0 million or (B) the sum of (i) 100 percent of
the net book value of Eligible Financed Equipment of the Company and
its Restricted Subsidiaries, (ii) 85 percent of the book value of the
Eligible Accounts of the Company and its Restricted Subsidiaries and
(iii) 60 percent of Parts Inventory of the Company and its Restricted
Subsidiaries, reduced in the case of the preceding clause (A) by any
required permanent repayments from the application of the use of
proceeds from Asset Sales (which in the case of a revolving credit
facility are accompanied by a corresponding permanent commitment
reduction) thereunder;
(iv) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually
paid or permanent reductions thereof;
(v) Interest Swap Obligations of the Company or any of its
Restricted Subsidiaries covering Indebtedness of the Company or such
Restricted Subsidiary; PROVIDED, HOWEVER, that such Interest Swap
Obligations are entered into to protect the Company and its Restricted
Subsidiaries from fluctuations in interest rates on Indebtedness
incurred in accordance with this Indenture to the extent the notional
principal amount of such Interest
13
Swap Obligation does not exceed the principal amount of the
Indebtedness to which such Interest Swap Obligation relates;
(vi) Indebtedness under Currency Agreements; PROVIDED that in
the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of the Company and
its Restricted Subsidiaries outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
(vii) Indebtedness of a Wholly Owned Restricted Subsidiary of
the Company to the Company or to a Wholly Owned Restricted Subsidiary
of the Company for so long as such Indebtedness is held by the Company,
a Wholly Owned Restricted Subsidiary of the Company or the lenders or
collateral agent under the Credit Agreement, in each case subject to no
Lien held by a Person other than the Company, a Wholly Owned Restricted
Subsidiary of the Company or the lenders or collateral agent under the
Credit Agreement; PROVIDED that if as of any date any Person other than
the Company, a Wholly Owned Restricted Subsidiary of the Company or the
lenders or collateral agent under the Credit Agreement owns or holds
any such Indebtedness or holds a Lien in respect of such Indebtedness,
such date shall be deemed the incurrence of Indebtedness not
constituting Permitted Indebtedness by the issuer of such Indebtedness
pursuant to this clause (vii);
(viii) Indebtedness of the Company to a Wholly Owned
Restricted Subsidiary of the Company for so long as such Indebtedness
is held by a Restricted Subsidiary of the Company or the lenders or
collateral agent under the Credit Agreement, in each case subject to no
Lien (other than a lien in favor of the lenders or collateral agent
under the Credit Agreement); PROVIDED that (a) any Indebtedness of the
Company to any Wholly Owned Restricted Subsidiary of the Company that
is not a Guarantor is unsecured and subordinated, pursuant to a written
agreement, to the Company's obligations under this Indenture and the
Notes and (b) if as of any date any Person other than a Wholly Owned
Restricted Subsidiary of the Company or the lenders or collateral agent
under the Credit Agreement owns or holds any such Indebtedness or any
Person holds a Lien in respect of such Indebtedness, such date shall be
deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness by the Company pursuant to this clause (viii);
(ix) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; PROVIDED,
HOWEVER, that such Indebtedness is extinguished within two business
days of incurrence;
(x) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or such Restricted Subsidiary, as the case may be, in order to
provide security for workers' compensation claims, payment obligations
in connection with self-insurance or similar requirements in the
ordinary course of business;
(xi) Refinancing Indebtedness;
14
(xii) Capitalized Lease Obligations and Purchase Money
Indebtedness of the Company or any of its Restricted Subsidiaries not
to exceed $20.0 million at any one time outstanding;
(xiii) Indebtedness permitted by clauses (iii) and (xiii) of
the definition of "Permitted Investments;"
(xiv) guarantees of Indebtedness otherwise permitted under
this Indenture; and
(xv) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount (or, in the case of
Indebtedness issued at a discount, an accreted amount (determined in
accordance with GAAP)) not to exceed $10.0 million at any one time
outstanding (which may, but need not, be incurred in whole or in part
under the Credit Agreement).
For purposes of determining compliance with Section 4.10 of
this Indenture, in the event that an item of Indebtedness meets the criteria of
more than one of the types of Permitted Indebtedness described in the above
clauses, the Company, in its sole discretion shall classify such item of
Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses. Any Permitted Indebtedness initially
incurred pursuant to any of the clauses in the preceding paragraph may at any
time at the sole discretion of the Company be treated as having been incurred
pursuant to any other clause as long as the outstanding amount of such Permitted
Indebtedness at the time of any reclassification could be made pursuant to such
other clause.
"PERMITTED INVESTMENTS" means (i) Investments by the Company
or any Restricted Subsidiary of the Company in any Person that is or will become
immediately after such Investment a Wholly Owned Restricted Subsidiary of the
Company or that will merge or consolidate into the Company or a Wholly Owned
Restricted Subsidiary of the Company, (ii) Investments in the Company by any
Restricted Subsidiary of the Company; PROVIDED that any Indebtedness evidencing
such Investment is unsecured and, to the extent made by a Restricted Subsidiary
that is not a Guarantor, subordinated, pursuant to a written agreement, to the
Company's obligations under the Notes and this Indenture; (iii) Investments in
an aggregate amount not to exceed $10.0 million by the Company or any Restricted
Subsidiary of the Company in any Person that is or will become immediately after
such Investment a non-Guarantor Restricted Subsidiary of the Company or that
will merge or consolidate into the Company or a non-Guarantor Restricted
Subsidiary of the Company, (iv) an Investment in the amount of up to $38.0
million to purchase 51 percent of the Capital Stock of Sullair Argentina; (v)
investments in cash and Cash Equivalents; (vi) loans and advances to employees
and officers of the Company and its Restricted Subsidiaries in the ordinary
course of business for bona fide business purposes not in excess of $1.0 million
at any one time outstanding; (vii) Currency Agreements and Interest Swap
Obligations entered into in the ordinary course of the Company's or its
Restricted Subsidiaries' businesses and otherwise in compliance with this
Indenture; (viii) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors
15
or customers or in good faith settlement of delinquent obligations of such trade
creditors or customers or in good faith settlement of delinquent obligations of
such trade creditors or customers; (ix) Investments made by the Company or its
Restricted Subsidiaries as a result of consideration received in connection with
an Asset Sale made in compliance with Section 4.08 of this Indenture; (x)
Investments existing on the Issue Date; (xi) guarantees of Indebtedness
otherwise permitted under this Indenture, (xii) obligations of one or more
officers or other employees of the Company or any of its Restricted Subsidiaries
in connection with such officers' or employee's acquisition of shares of Common
Stock of the Company so long as no cash is paid by the Company or any of its
Restricted Subsidiaries to such officers or employees in connection with the
acquisition of any such obligations; and (xiii) additional Investments in an
aggregate amount that, together with all other Investments made pursuant to this
clause (xiii), does not exceed $25.0 million.
For purposes of determining compliance with Section 4.09 of
this Indenture, in the event that an Investment meets the criteria of more than
one of the types of Permitted Investments described in the clauses in the
preceding paragraph, the Company, in its sole discretion, shall classify such
Permitted Investment and only be required to include the amount and type of such
Permitted Investment in one of such clauses. Any Permitted Investment initially
made pursuant to any of the clauses in the preceding paragraph may at any time
at the sole discretion of the Company be treated as having been made pursuant to
any other clause as long as the outstanding amount of such Permitted Investment
at the time of any reclassification could be made pursuant to such other clause.
"PERMITTED LIENS" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or
claims that are either (a) not yet due or are delinquent for less than
ninety days or (b) being contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries
shall have set aside on its books such reserves, if any, as may be
required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(iii) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security;
(iv) Liens securing (a) letters of credit issued in the
ordinary course of business consistent with past practice in connection
therewith, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed
money) and any bank's
16
unexercised right of set off with respect to deposits made in the
ordinary course and (b) indemnity obligations in respect of the
disposition of any business or assets of the Company or any Restricted
Subsidiary (PROVIDED that the property subject to such Lien does not
have a fair market value in excess of the cash or cash equivalent
proceeds received by the Company and its Restricted Subsidiaries in
connection with such disposition);
(v) Liens securing indebtedness otherwise permitted under this
Indenture owing to Xxxx Deere Construction Equipment Company and its
Affiliates;
(vi) judgment Liens not giving rise to an Event of Default;
(vii) Liens on parts inventory, as incurred in accordance with
the Credit Agreement;
(viii) easements, rights-of-way, municipal ordinances, zoning
restrictions and other similar charges, encumbrances, title defects or
irregularities not interfering in any material respect with the
ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries;
(ix) any interest or title of a lessor under any Capitalized
Lease Obligation; PROVIDED that such Liens do not extend to any
property or assets which is not leased property subject to such
Capitalized Lease Obligation;
(x) purchase money Liens to finance property or assets of the
Company or any Restricted Subsidiary of the Company acquired in the
ordinary course of business; PROVIDED, HOWEVER, that (A) the related
purchase money Indebtedness shall not exceed the cost of such property
or assets (including the cost of design, development, improvement,
production, acquisition, construction, installation and integration)
and shall not be secured by any property or assets of the Company or
any Restricted Subsidiary of the Company other than the property and
assets so acquired or constructed (and any improvements) and (B) the
Lien securing such Indebtedness shall be created within six months of
such acquisition, construction or improvement;
(xi) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person
to facilitate the purchase, shipment or storage of such inventory or
other goods;
(xii) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds
thereof;
(xiii) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual, or warranty
requirements of the Company or any of its Restricted Subsidiaries,
including rights of offset and set-off;
17
(xiv) Liens securing Interest Swap Obligations which Interest
Swap Obligations relate to Indebtedness that is otherwise permitted
under this Indenture;
(xv) Liens securing Indebtedness under Currency Agreements;
(xvi) any lease or sublease to a third party not interfering
in any material respect with the business of the Company and its
Restricted Subsidiaries;
(xvii) Liens placed upon assets of a foreign Restricted
Subsidiary of the Company to service Indebtedness of such foreign
Restricted Subsidiary that is otherwise permitted under this Indenture
and;
(xviii) Liens securing Acquired Indebtedness incurred in
accordance with Section 4.10 of this Indenture; PROVIDED that (A) such
Liens secured such Acquired Indebtedness at the time of and prior to
the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company and were not granted in connection
with, or in anticipation of, the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the Company
and (B) such Liens do not extend to or cover any property or assets of
the Company or of any of its Restricted Subsidiaries other than the
property or assets that secured the Acquired Indebtedness prior to the
time such Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary of the Company and are no more favorable to the
lienholders than those securing the Acquired Indebtedness prior to the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company.
"PERSON" means an individual, partnership, corporation,
unincorporated organization, association, limited liability company, joint stock
company, trust or joint venture, or a governmental agency or political
subdivision thereof or any other entity.
"PREFERRED STOCK" of any Person means any Capital Stock of
such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"PUBLIC EQUITY OFFERING" means an underwritten public offering
of Qualified Capital Stock (other than the Common Stock Offering) of the Company
for cash after the Issue Date pursuant to a registration statement filed with
the Commission in accordance with the Securities Act.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the
Company and its Restricted Subsidiaries incurred in the normal course of
business for the purpose of financing all or any part of the purchase price, or
the cost of installation, construction or improvement, of property or equipment.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Capital Stock.
18
"REFINANCE" means, in respect of any security or Indebtedness,
to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire,
or to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"REFINANCING INDEBTEDNESS" means any Refinancing by the
Company or any Restricted Subsidiary of the Company of Indebtedness incurred in
accordance with Section 4.10 of this Indenture (other than pursuant to clause
(iii), (v), (vi), (vii), (viii), (ix), (x) or (xv) of the definition of
Permitted Indebtedness), in each case that does not (1) result in an increase in
the aggregate principal amount of Indebtedness of such Person as of the date of
such proposed Refinancing (plus the amount of any interest or premium required
to be paid under the terms of the instrument governing such Indebtedness and
plus the amount of reasonable fees and expenses incurred by the Company in
connection with such Refinancing) or (2) create Indebtedness with (A) a Weighted
Average Life to Maturity that is less than the Weighted Average Life to Maturity
of the Indebtedness being Refinanced or (B) a final maturity earlier than the
final maturity of the Indebtedness being Refinanced; PROVIDED that (x) if such
Indebtedness being Refinanced is Indebtedness of the Company, then such
Refinancing Indebtedness shall be Indebtedness solely of the Company and (y) if
such Indebtedness being Refinanced is subordinate or junior to the Notes, then
such Refinancing Indebtedness shall be subordinate to the Notes at least to the
same extent and in the same manner as the Indebtedness being Refinanced.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date of this Indenture, by and among the Company and
the other parties named on the signature pages thereof, as such agreement may be
amended, modified or supplemented from time to time.
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REPRESENTATIVE" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Debt; PROVIDED that
if, and for so long as, any Designated Senior Debt lacks such a representative,
then the Representative for such Designated Senior Debt shall at all times
constitute the holders of a majority in outstanding principal amount of such
Designated Senior Debt in respect of any Designated Senior Debt.
"RESPONSIBLE OFFICER," when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"RESTRICTED SUBSIDIARY" of any Person means any Subsidiary of
such Person which at the time of determination is not an Unrestricted
Subsidiary.
"RULE 144A" means Rule 144A promulgated under the Securities
Act.
19
"SALE AND LEASEBACK TRANSACTION" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of such Property.
"SEC" means the United States Securities and Exchange
Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any successor statute or statutes thereto.
"SENIOR DEBT" means the principal of, premium, if any, and
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law)
on any Indebtedness of the Company, whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Notes. Without limiting the generality
of the foregoing, "Senior Debt" shall also include the principal of, premium, if
any, interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of, (x) all monetary
obligations (including guarantees thereof) of every nature of the Company under
the Credit Agreement, including, without limitation, obligations to pay
principal and interest, reimbursement obligations under letters of credit, fees,
expenses and indemnities, (y) all Interest Swap Obligations (including
guarantees thereof) and (z) all obligations (including guarantees thereof) under
Currency Agreements, in each case whether outstanding on the Issue Date or
thereafter incurred. Notwithstanding the foregoing, "Senior Debt" shall not
include (i) any Indebtedness of the Company to a Subsidiary of the Company or
any Affiliate of the Company or any of such Affiliate's Subsidiaries, (ii)
Indebtedness to, or guaranteed on behalf of, any shareholder, director, officer
or employee of the Company or any Subsidiary of the Company (including, without
limitation, amounts owed for compensation), (iii) Indebtedness to trade
creditors and other amounts incurred in connection with obtaining goods,
materials or services (excluding purchase money indebtedness to equipment
manufacturers), (iv) Indebtedness represented by Disqualified Capital Stock, (v)
any liability for federal, state, local or other taxes owed or owing by the
Company, (vi) that portion of any Indebtedness incurred in violation of Section
4.10 of this Indenture (but, as to any such obligation, no such violation shall
be deemed to exist for purposes of this clause (vi) if the holder(s) of such
obligation or their representative and the Trustee shall have received an
Officers' Certificate of the Company to the effect that the incurrence of such
Indebtedness does not (or, in the case of revolving credit Indebtedness, that
the incurrence of the entire committed amount thereof at the date on which the
initial borrowing thereunder is made would not) violate such provisions of this
Indenture), (vii) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11,
20
United States Code, is without recourse to the Company and (viii) any
Indebtedness which is, by its express terms, subordinated in right of payment to
any other Indebtedness of the Company.
"SERIES A PREFERRED STOCK" means the 340,907 shares of the
Company's Series A Cumulative Redeemable Preferred Stock with Detachable Stock
Purchase Warrants, $.01 par value per share.
"SIGNIFICANT SUBSIDIARY" shall have the meaning set forth in
Rule 1.02(w) of Regulation S-X under the Securities Act.
"SUBSIDIARY" with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a majority of
the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such Person
or (ii) any other Person of which at least a majority of the voting interest
under ordinary circumstances is at the time, directly or indirectly, owned by
such Person.
"SUBSIDIARY GUARANTEES" means the Subsidiary Guarantees of the
Guarantors in the form set forth as Exhibit B hereto.
"SULLAIR ARGENTINA" shall mean Sullair Argentina S.A., a
corporation organized under the laws of the Republic of Argentina.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"TRANSFER RESTRICTED NOTES" means Notes that bear or are
required to bear the legend set forth in Section 2.06(g)(i) hereof.
"TRUSTEE" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"UNRESTRICTED SUBSIDIARY" of any Person means (i) any
Subsidiary of such Person that at the time of determination shall be or continue
to be designated an Unrestricted Subsidiary by the Board of Directors of such
Person in the manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; PROVIDED that (x) the
Company certifies to the Trustee that such designation complies with Section
4.09 of this Indenture and (y) each Subsidiary to be so designated and each of
its Subsidiaries has not at the time of designation, and does not thereafter,
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the lender
has recourse to any of the assets of the Company or any of its Restricted
Subsidiaries. The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary only if (x) immediately after giving effect to
such
21
designation, the Company is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.10
of this Indenture and (y) immediately before and immediately after giving effect
to such designation, no Default or Event of Default shall have occurred and be
continuing. Any such designation by the Board of Directors shall be evidenced to
the Trustee by promptly filing with the Trustee a copy of the Board Resolution
giving effect to such designation and an officers' certificate certifying that
such designation complied with the foregoing provisions.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means any
Restricted Subsidiary of such Person of which all the outstanding voting
securities (other than in the case of a foreign Restricted Subsidiary,
directors' qualifying shares or an immaterial amount of shares required to be
owned by other Persons pursuant to applicable law) are owned by such Person or
any Wholly Owned Restricted Subsidiary of such Person.
Section 1.02 Other Definitions
TERM DEFINED IN
---- SECTION
-------
"Acceleration Notice" 6.02
"Affiliate Transaction" 4.14
"Benefitted Party" 11.01
"Blockage Period" 10.03
"Change of Control Offer" 4.07
"Change of Control Payment Date" 4.07
"Covenant Defeasance" 8.03
"Default Notice" 10.03
"DTC" 2.03
"Event of Default" 6.01
"Incur" 4.10
"Legal Defeasance" 8.02
"Net Proceeds Offer" 4.08
"Net Proceeds Offer Amount" 4.08
"Net Proceeds Offer Payment Date" 4.08
"Net Proceeds Offer Trigger Date" 4.08
"Paying Agent" 2.03
"Payment Notice" 10.03
"Reference Date" 4.09
"Registrar" 2.03
22
TERM DEFINED IN
---- SECTION
-------
"Registration" 4.03
"Replacement Assets" 4.08
"Surviving Entity" 5.01
Section 1.03 Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee;
"OBLIGOR" on the Notes means the Company, the Guarantors and
any successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
23
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall furnish any such legend not contained in Exhibit A to
the Trustee in writing. Each Note shall be dated the date of its authentication.
Notes shall be issuable in fully registered form only, without coupons, in
denominations of $1,000 and any integral multiple thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. In the
event of a conflict, the terms of this Indenture shall control.
Global Notes shall be substantially in the form of Exhibit A
attached hereto (including the text referred to in footnote 1 thereto). Notes
issued in certificated form shall be substantially in the form of Exhibit A
attached hereto (but without including the text referred to in footnote 1
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Note Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
Section 2.02 Execution and Authentication
Two Officers shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by two Officers, authenticate Notes for original issue up to the aggregate
principal amount stated in paragraph 4 of the Notes, but in any case not to
exceed $200,000,000, in one or more series; provided, however, that if any
series of Notes issued under this Indenture subsequent to the Issue Date is
determined, pursuant to an Opinion of Counsel of the Company in a form
reasonably satisfactory
24
to the Trustee, to be a different class of security than the Notes outstanding
at such time for federal income tax purposes, the Company may obtain a "CUSIP"
number for such Notes that is different than the "CUSIP" number printed on the
Notes then outstanding. Notwithstanding the foregoing, all Notes issued under
the Indenture shall vote and consent together on all matters as one class and no
series of Notes will have the right to vote or consent as a separate class on
any matter. The aggregate principal amount of Notes outstanding at any time may
not exceed such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03 Registrar and Paying Agent; Depositary
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as depositary with respect to the Global Notes (the
"Depositary").
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or Additional Interest, if any, or
interest on the Notes, and will notify the Trustee of any default by the Company
in making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any default in the payment of principal of, premium,
if any, or accrued interest or Additional Interest, if any, on the Notes
pursuant to Sections 6.01(i) and 6.01(ii) hereof, 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 all funds
25
disbursed. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Company shall so notify the Trustee, and thereafter the Trustee
shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA /section/ 312(a).
If the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders of Notes and the Company shall otherwise comply with TIA /section/
312(a).
Section 2.06 Transfer and Exchange
(a) TRANSFER AND EXCHANGE OF CERTIFICATED NOTES. When
Certificated Notes are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Certificated Notes; or (y) to exchange such
Certificated Notes for an equal principal amount of Certificated Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met;
PROVIDED, HOWEVER, that the Certificated Notes presented or surrendered for
register of transfer or exchange: (i) shall be duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing; and (ii)
in the case of a Certificated Note that is a Transfer Restricted Note, such
request shall be accompanied by the following additional information and
documents, as applicable: (A) if such Transfer Restricted Note is being
delivered to the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification to that effect from such Holder (in
substantially the form of Exhibit C hereto) and, at the option of the Company or
the Registrar, an Opinion of Counsel from such Holder or the transferee
reasonably acceptable to the Company and to the Registrar to the effect that
such transfer is in compliance with the Securities Act; or (B) if such Transfer
Restricted Note is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in accordance with Rule 144A
under the Securities Act, an institutional "accredited investor" (as defined in
Rule 501(a)(1),(2),(3) or (7) of Regulation D under the Securities Act) that,
prior to such transfer, furnishes the Trustee a signed letter containing certain
representations and agreements relating to the transfer of the Notes, or
pursuant to an exemption from registration in accordance with Rule 144, Rule 903
or Rule 904 under the Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to that effect from such
Holder (in substantially the form of Exhibit C hereto) and, at the option of the
Company or the Registrar, an Opinion of Counsel from such Holder or the
transferee reasonably acceptable to the Company and to the Registrar to the
effect that such transfer is in compliance with the Securities Act; or (C) if
such Transfer Restricted Note is being
26
transferred in reliance on another exemption from the registration requirements
of the Securities Act, a certification to that effect from such Holder (in
substantially the form of Exhibit C hereto) and an Opinion of Counsel from such
Holder or the transferee reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is in compliance with the Securities
Act.
(b) TRANSFER OF A CERTIFICATED NOTE FOR A BENEFICIAL INTEREST
IN A GLOBAL NOTE. A Certificated Note may not be exchanged for a beneficial
interest in a Global Note except upon satisfaction of the requirements set forth
below and only if the Company, at the time of such transfer, has appointed a
Depositary that is registered as a clearing agency under the Exchange Act. Upon
receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee,
together with: (i) if such Certificated Note is a Transfer Restricted Note, a
certification from the Holder thereof (in substantially the form of Exhibit C
hereto) to the effect that such Certificated Note is being transferred by such
Holder to a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act; and (ii)
whether or not such Certificated Note is a Transfer Restricted Note, written
instructions from the Holder thereof directing the Trustee to make, or to direct
the Note Custodian to make, an endorsement on the Global Note to reflect an
increase in the aggregate principal amount of the Notes represented by the
Global Note, in which case the Trustee shall cancel such Certificated Note in
accordance with Section 2.11 hereof and cause, or direct the Note Custodian to
cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Note Custodian, the aggregate principal amount of
Notes represented by the Global Note to be increased accordingly. If no Global
Notes are then outstanding, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the Trustee shall
authenticate a new Global Note in the appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture and the procedures of
the Depositary therefor, which shall include restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL NOTE FOR A
CERTIFICATED NOTE.
(i) Any Person having a beneficial interest in a
Global Note may upon request exchange such beneficial interest for a
Certificated Note. Upon receipt by the Trustee of written instructions or such
other form of instructions as is customary for the Depositary, from the
Depositary or its nominee on behalf of any Person having a beneficial interest
in a Global Note, and, in the case of a Transfer Restricted Note, the following
additional information and documents (all of which may be submitted by
facsimile): (A) if such beneficial interest is being transferred to the Person
designated by the Depositary as being the beneficial owner, a certification to
that effect from such Person (in substantially the form of Exhibit C hereto); or
(B) if such beneficial interest is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act or
27
an institutional "accredited investor" (as defined in Rule 501(a)(1),(2),(3) or
(7) of Regulation D under the Securities Act) that, prior to such transfer,
furnishes the Trustee a signed letter containing certain representations and
agreements relating to the transfer of the Notes, a certification to that effect
from the transferor (in substantially the form of Exhibit C hereto); or (C) if
such beneficial interest is being transferred pursuant to an exemption from
registration in accordance with Rule 144, Rule 903 or Rule 904 under the
Securities Act or pursuant to an effective registration statement under the
Securities Act, a certification to that effect from the transferor (in
substantially the form of Exhibit C hereto) and, at the option of the Company or
the Registrar, an Opinion of Counsel from such beneficial owner or the
transferee reasonably acceptable to the Company and the Registrar to the effect
that such transfer is in compliance with the Securities Act; or (D) if such
beneficial interest is being transferred in reliance on another exemption from
the registration requirements of the Securities Act, a certification to that
effect from the transferor (in substantially the form of Exhibit C hereto) and
an Opinion of Counsel from the transferee or transferor reasonably acceptable to
the Company and to the Registrar to the effect that such transfer is in
compliance with the Securities Act; in which case the Trustee or the Note
Custodian, at the direction of the Trustee, shall, in accordance with the
standing instructions and procedures existing between the Depositary and the
Note Custodian, cause the aggregate principal amount of Global Notes to be
reduced accordingly and, following such reduction, the Company shall execute
and, upon receipt of an authentication order in accordance with Section 2.02
hereof, the Trustee shall authenticate and deliver to the transferee a
Certificated Note in the appropriate principal amount.
(ii) Certificated Notes issued in exchange for a
beneficial interest in a Global Note pursuant to this Section 2.06(d) shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Certificated Notes to
the Persons in whose names such Notes are so registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.06), a Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(f) AUTHENTICATION OF CERTIFICATED NOTES IN ABSENCE OF
DEPOSITARY. If at any time: (i) the Depositary for the Notes notifies the
Company that the Depositary is unwilling or unable to continue as Depositary for
the Global Notes and a successor Depositary for the Global Notes is not
appointed by the Company within 90 days after delivery of such notice; or (ii)
the Company, at its option, notifies the Trustee in writing that it elects to
cause the issuance of Certificated Notes under this Indenture; then the Company
shall execute, and the Trustee shall, upon receipt of an authentication order in
accordance with Section 2.02 hereof, authenticate and deliver Certificated Notes
in accordance with Section 2.06(d)(ii) above in an aggregate principal amount
equal to the principal amount of the Global Notes in exchange for such Global
Notes.
28
(g) LEGENDS.
(i) Except as permitted by the following paragraphs
(ii) and (iii), each Note certificate evidencing Global Notes and Certificated
Notes (and all Notes issued in exchange therefor or substitution thereof) shall
bear legends in substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (i) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT)(A "QIB"), (ii) IT HAS ACQUIRED
THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATIONS UNDER THE
ACT OR (iii) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (i) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (ii) TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(iii) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF
THE ACT, (iv) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
ACT, (v) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE AND
THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND (vi) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT OR (vii)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
ACT. THE INDENTURE CONTAINS A PROVISION
29
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING.
(ii) Upon any sale or transfer of a Transfer
Restricted Note (including any Transfer Restricted Note represented by a Global
Note) pursuant to Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act: (A) in the case of any Transfer
Restricted Note that is a Certificated Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Note for a Certificated Note
that does not bear the legend set forth in (i) above and rescind any restriction
on the transfer of such Transfer Restricted Note; and (B) in the case of any
Transfer Restricted Note represented by a Global Note, such Transfer Restricted
Note shall not be required to bear the first legend set forth in (i) above, but
shall continue to be subject to the provisions of Section 2.06(c) hereof;
PROVIDED, HOWEVER, that with respect to any request for an exchange of a
Transfer Restricted Note that is represented by a Global Note for a Certificated
Note that does not bear the first legend set forth in (i) above, which request
is made in reliance upon Rule 144, the Holder thereof shall certify in writing
to the Registrar that such request is being made pursuant to Rule 144 (such
certification to be substantially in the form of Exhibit C hereto).
(iii) Notwithstanding the foregoing, upon
consummation of the Exchange Offer, the Company shall issue and, upon receipt of
an authentication order in accordance with Section 2.02 hereof, the Trustee
shall authenticate Series B Notes in exchange for Series A Notes accepted for
exchange in the Exchange Offer, which Series B Notes shall not bear the first
legend set forth in (i) above, and the Registrar shall rescind any restriction
on the transfer of such Notes, in each case unless the Holder of such Series A
Notes is either (A) a Person participating in the distribution of the Series A
Notes, (B) a Person who is an affiliate (as defined in Rule 405 promulgated
under the Securities Act) of the Company or the Guarantors or (C) a
broker-dealer that will receive Series B Notes for its own account in exchange
for Series A Notes that were acquired as a result of market-making or other
trading activities, that it will deliver a prospectus in connection with any
resale of such series B Notes.
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such
time as all beneficial interests in Global Notes have been exchanged for
Certificated Notes, redeemed, repurchased or cancelled, all Global Notes shall
be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for Certificated Notes, redeemed,
repurchased or cancelled, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note, by the Trustee or the Notes Custodian, at the direction of the
Trustee, to reflect such reduction.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Certificated Notes and Global Notes at the Registrar's request.
30
(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 transfer tax or similar governmental charge
payable in connection therewith.
(iii) The Registrar shall not be required to register
the transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Certificated Notes and Global Notes issued
upon any registration of transfer or exchange of Certificated Notes or Global
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Certificated
Notes or Global Notes surrendered upon such registration of transfer or
exchange.
(v) The Company and the Registrar shall not be
required: (A) to issue, to register the transfer of or to exchange Notes during
a period beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection; or (B) to register the transfer of or
to exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or (C) to register the
transfer of or to exchange a Note between a record date and the next succeeding
interest payment date.
(vi) Prior to due presentment for the registration of
a transfer of any Note, the Trustee, any Agent and the Company may deem and
treat the Person in whose name any Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and interest on
such Notes, and neither the Trustee, any Agent nor the Company shall be affected
by notice to the contrary.
(vii) The Trustee shall authenticate Certificated
Notes and Global Notes in accordance with the provisions of Section 2.02 hereof.
Section 2.07 Replacement Notes
If any mutilated Note is surrendered to the Trustee, or the
Company or the Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, the Company shall issue and the Trustee, upon the
written order of the Company signed by two Officers of the Company, shall
authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may
charge the Holder for its expenses in replacing a Note.
Every replacement Note is an additional Obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
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Section 2.08 Outstanding Notes
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding because the
Company, a Guarantor or an Affiliate of the Company or a Guarantor holds the
Note.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary of
the Company or an Affiliate) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09 Treasury Notes
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, amendment, supplement, waiver
or consent, Notes owned by the Company, or by any Affiliate, shall be considered
as though not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, amendment,
supplement, waiver or consent, only Notes that have been identified to the
Trustee in writing as owned by the Company or an Affiliate of the Company shall
be so disregarded. The Company shall notify the Trustee in writing, when it or
any Affiliate repurchases or otherwise acquires Notes of the aggregate principal
amount of such Notes so repurchased or otherwise acquired.
Section 2.10 Temporary Notes
Until Certificated Notes are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Notes upon a written
order of the Company signed by two Officers of the Company. Temporary Notes
shall be substantially in the form of Certificated Notes but may have variations
that the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall, as soon as practicable upon its receipt of
a written order of the Company signed by two Officers, authenticate Certificated
Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
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Section 2.11 Cancellation
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall deliver to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
cancelled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all cancelled Notes shall be delivered
to the Company. Subject to Section 2.07, the Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, PROVIDED that no such special
record date shall be less than 15 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
Section 2.13 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect (except as to surviving rights or registration of transfer or exchange of
the Notes, as expressly provided for in this Indenture) as to all outstanding
Notes when (i) either (a) all the Notes theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for
cancellation or (b) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire Indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, for principal of,
premium, if any, and interest on the Notes to the date of deposit together with
irrevocable instructions from the Company directing the Trustee to apply such
funds to the payment thereof at maturity or redemption, as the case may be; (ii)
the Company has paid all other sums payable under this Indenture by the Company;
and (iii) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been complied
with.
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ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days (unless a shorter period is consented to in writing by the
Trustee) but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal amount of
Notes to be redeemed and (iv) the redemption price.
Section 3.02 Selection of Notes to be Redeemed
In the event that less than all of the Notes are to be
redeemed at any time, selection of such Notes for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which such Notes are listed or, if such Notes are not then
listed on a national securities exchange, on a PRO RATA basis, by lot or by such
method as the Trustee shall deem fair and appropriate; PROVIDED, HOWEVER, that
no Notes of a principal amount of $1,000 or less shall be redeemed in part,
PROVIDED, FURTHER, that if a partial redemption is made with the proceeds of a
Public Equity Offering, selection of the Notes or portions thereof for
redemption shall be made by the Trustee only on a PRO RATA basis or on as nearly
a PRO RATA basis as is practicable (subject to DTC procedures), unless such
method is otherwise prohibited. Notice of redemption shall be mailed by
first-class mail at least 30 but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at its registered address. If any
Note is to be redeemed in part only, the notice of redemption that relates to
such Note shall state the portion of the principal amount thereof to be
redeemed. A new Note in a principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Note. On and after the redemption date, interest will cease to
accrue on Notes or portions thereof called for redemption as long as the Company
has deposited with the Paying Agent funds in satisfaction of the applicable
redemption price pursuant to this Indenture.
Section 3.03 Notice of Redemption
Subject to the provisions of Section 3.07 hereof, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address as shown upon
the registry books of the Registrar.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
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(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed, the portion of the principal
amount equal to the unredeemed portion thereof, and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion shall be issued upon cancellation of the original
Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date; and
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05 Deposit of Redemption Price
At least one Business Day prior to the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent immediately
available funds sufficient to pay the redemption price of and accrued interest
and Additional Interest, if any, on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest and
Additional Interest, if any, on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption unless the Company
defaults in such payments due on the redemption date. If a Note is redeemed on
or after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Note was registered at the close of business on such record date. If
any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the
35
Company to comply with the preceding paragraph, interest shall be paid on the
unpaid principal from the redemption date until such principal is paid and, to
the extent lawful, on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06 Notes Redeemed in Part
Upon surrender of a Note that is redeemed in part, the Company
shall issue and the Trustee shall as soon as practicable, upon its receipt of a
written order of the Company signed by two Officers, authenticate for the Holder
at the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
Section 3.07 Optional Redemption
(a) Except as set forth in clause (b) of this Section 3.07,
the Notes will be redeemable, at the Company's option, in whole at any time or
in part from time to time, on and after June 1 , 2003, upon not less than 30 nor
more than 60 days' notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the twelve-month
period commencing on June 1 of the year set forth below, plus, in each case,
accrued and unpaid interest thereon, if any, to the date of redemption:
PERCENTAGE
----------
YEAR
----
2003.................................... 105.125%
2004.................................... 103.417%
2005.................................... 101.708%
2006 and thereafter..................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Section 3.07, at any time, or from time to time, on or prior to June 1, 2001,
the Company may, at its option, use the net cash proceeds of one or more Public
Equity Offerings to redeem up to 30% of the initial aggregate principal amount
of the Notes issued under this Indenture at a redemption price equal to 110.250
percent of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of redemption; PROVIDED that at least 70% of the
initial aggregate principal amount of the Notes issued under this Indenture
remains outstanding immediately after any such redemption. In order to effect
the foregoing redemption with the proceeds of any Public Equity Offering, the
Company shall make such redemption not more than 120 days after the consummation
of any such Public Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08 No Mandatory Redemption
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The Company shall not be required to make mandatory redemption
payments with respect to the Notes.
Section 3.09 No Sinking Fund
The Notes shall not have the benefit of a sinking fund.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes
The Company shall pay or cause to be paid the principal of,
premium, if any, Additional Interest, if any, and interest on the Notes on the
dates and in the manner provided in the Notes. Principal, premium, if any,
Additional Interest, if any, and interest shall be considered paid on the date
due if the Trustee or Paying Agent (other than the Company or a Subsidiary
thereof) (i) holds as of 11:00 a.m. New York time on the due date money
deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, Additional Interest, if any,
and interest then due and (ii) is not prohibited from paying such money to the
Holders pursuant to the terms of this Indenture or the Notes. The Company shall
pay all Additional Interest, if any, in the same manner on the dates and in the
amounts set forth in the Registration Rights Agreement. The Company shall notify
the Trustee of the amount of Additional Interest, if any, within one business
day after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid. In the absence of such notice, the
Trustee is conclusively entitled to assume that no Additional Interest is
payable under the Registration Rights Agreement.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, at the rate equal to the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period), at the same rate to
the extent lawful. Interest is computed on the basis of a 360-day year
consisting of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed.
Section 4.02 Maintenance of Office or Agency
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address
37
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Administration Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, 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 shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust
Administration Office of the Trustee as one such office or agency of the Company
in accordance with Section 2.03 hereof.
Section 4.03 Reports
(a) The Company will deliver to the Trustee within 15 days
after the filing of the same with the SEC, copies of the quarterly and annual
reports and of the information, documents and other reports, if any, which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. At all times from and after the earlier of (i) the date of the
commencement of an Exchange Offer or the effectiveness of the Shelf Registration
Statement (the "Registration") and (ii) May 11, 1999, in either case
notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company will file
with the SEC, to the extent permitted, and provide the Trustee and Holders with
such annual reports and such information, documents and other reports specified
in Sections 13 and 15(d) of the Exchange Act for so long as any Notes are
outstanding. The Company will also comply with the other provisions of TIA
314(a).
(b) For so long as any Transfer Restricted Notes remain
outstanding, the Company and the Subsidiary Guarantors shall furnish to all
Holders, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
Section 4.04 Compliance Certificate
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has, in all material
respects, kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking (or
proposes to take with respect thereto).
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(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.03(a) hereof shall
be accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article 4 or Article 5 hereof or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, upon any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto within 30 days of such occurrence.
Section 4.05 Taxes
The Company and Guarantors shall pay, and shall cause each of
their Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is
not adverse in any material respect to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.07 Repurchase of Notes at the Option of the Holder upon a Change
of Control
Upon the occurrence of a Change of Control, each Holder will
have the right to require that the Company purchase all or a portion of such
Holder's Notes pursuant to the offer described below (the "Change of Control
Offer"), at a purchase price equal to 101 percent of the principal amount
thereof plus accrued and unpaid interest to the date of purchase. The Company is
not required to make a Change of Control Offer if a third party makes a Change
of Control Offer that would be in compliance with the provisions described in
this section if it were made by the Company and such third party purchases (for
the consideration referred to in the immediate preceding sentence) the Notes
validly tendered and not withdrawn.
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Prior to the mailing of the notice referred to below, but in
any event within 30 days following any Change of Control, the Company covenants
to (i) repay in full and terminate all commitments under Indebtedness under the
Credit Agreement and all other Senior Debt the terms of which require repayment
upon a Change of Control or offer to repay in full and terminate all commitments
under all Indebtedness under the Credit Agreement and all such other Senior Debt
and to repay the Indebtedness owed to each lender which has accepted such offer
or (ii) obtain the requisite consents under the Credit Agreement and all such
other Senior Debt to permit the repurchase of the Notes as provided below. The
Company shall first comply with the covenant in the immediately preceding
sentence before it shall be required to repurchase Notes pursuant to the
provisions described below. The Company's failure to comply with the covenant
described in the immediately preceding sentence shall constitute an Event of
Default described in clause (iii) and not in clause (ii) under "Events of
Default" below in Section 6.01.
Within 30 days following the date upon which the Change of
Control occurred, the Company must send, by first class mail, a notice to each
Holder, with a copy to the Trustee, which notice shall govern the terms of the
Change of Control Offer. Such notice shall state, among other things, the
purchase date, which must be no earlier than 30 days nor later than 45 days from
the date such notice is mailed, other than as may be required by law (the
"Change of Control Payment Date"). Holders electing to have a Note purchased
pursuant to a Change of Control Offer will be required to surrender the Note,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third business day prior to the Change of
Control Payment Date.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.07, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.07.
Section 4.08 Limitation on Asset Sales
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or
the applicable Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors), (ii) at least 70 percent of the consideration
received by the Company or the Restricted Subsidiary, as the case may be, from
such Asset Sale shall be in the form of cash or Cash Equivalents and is received
at the time of such disposition; and (iii) upon the consummation of an Asset
Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the
Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof
either (A) to prepay any Senior Debt or Guarantor Senior Debt and, in the case
of any Senior Debt or Guarantor Senior Debt under any revolving credit facility,
effect a permanent reduction in the availability under such revolving credit
facility, (B) to make an investment in properties and
40
assets that replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used in the business of the
Company and its Restricted Subsidiaries as existing on the Issue Date or in
businesses reasonably related thereto ("Replacement Assets"), or (C) a
combination of prepayment and investment permitted by the foregoing clauses
(iii)(A) and (iii)(B). On the 366th day after an Asset Sale or such earlier
date, if any, as the Board of Directors of the Company or of such Restricted
Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset
Sale as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) of the next
preceding sentence (each, a "Net Proceeds Offer Trigger Date"), such aggregate
amount of Net Cash Proceeds which have not been applied on or before such Net
Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and
(iii)(C) of the next preceding sentence (each a "Net Proceeds Offer Amount")
shall be applied by the Company or such Restricted Subsidiary to make an offer
to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer
Payment Date") not less than 30 days nor more than 45 days following the
applicable Net Proceeds Offer Trigger Date, from all Holders on a PRO RATA
basis, that amount of Notes equal to the Net Proceeds Offer Amount at a price
equal to 100 percent of the principal amount of the Notes to be purchased, plus
accrued and unpaid interest thereon, if any, to the date of purchase; PROVIDED,
HOWEVER, that if at any time any non-cash consideration received by the Company
or any Restricted Subsidiary of the Company, as the case may be, in connection
with any Asset Sale is converted into or sold or otherwise disposed of for cash
(other than interest received with respect to any such non-cash consideration),
then such conversion or disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Cash Proceeds thereof shall be applied in accordance with
this covenant. The Company may defer the Net Proceeds Offer until there is an
aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0
million resulting from one or more Asset Sales (at which time, the entire
unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0
million, shall be applied as required pursuant to this paragraph).
In the event of the transfer of substantially all (but not
all) of the property and assets of the Company and its Restricted Subsidiaries
as an entirety to a Person in a transaction permitted under Section 5.01 of this
Indenture, the successor corporation shall be deemed to have sold the properties
and assets of the Company and its Restricted Subsidiaries not so transferred for
purposes of this covenant, and shall comply with the provisions of this covenant
with respect to such deemed sale as if it were an Asset Sale. In addition, the
fair market value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for
purposes of this covenant.
Notwithstanding the two immediately preceding paragraphs, the
Company and its Restricted Subsidiaries shall be permitted to consummate an
Asset Sale without complying with such paragraphs to the extent (i) at least 80
percent of the consideration for such Asset Sale constitutes Replacement Assets
and (ii) such Asset Sale is for fair market value; PROVIDED that any
consideration not constituting Replacement Assets received by the Company or any
of its Restricted Subsidiaries in connection with any Asset Sale permitted to be
consummated under this paragraph shall constitute Net Cash Proceeds subject to
the provisions of the two preceding paragraphs.
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Each Net Proceeds Offer shall be mailed to the record Holders
as shown on the register of Holders within 30 days following the Net Proceeds
Offer Trigger Date, with a copy to the Trustee, and shall comply with the
procedures set forth in this Indenture. Upon receiving notice of the Net
Proceeds Offer, Holders may elect to tender their Notes in whole or in part in
integral multiples of $1,000 in exchange for cash. To the extent Holders
properly tender Notes in an amount exceeding the Net Proceeds Offer Amount,
Notes of tendering Holders will be purchased on a PRO RATA basis (based on
amounts tendered). A Net Proceeds Offer shall remain open for a period of 20
Business Days or such longer period as may be required by law.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.08, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.08.
Section 4.09 Limitation on Restricted Payments
The Company shall not, and shall not cause or permit any of
their Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions payable
in Qualified Capital Stock of the Company) on or in respect of shares of the
Company's Capital Stock to holders of such Capital Stock, (b) purchase, redeem
or otherwise acquire or retire for value any Capital Stock of the Company or any
warrants, rights or options to purchase or acquire shares of any class of such
Capital Stock, (c) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund payment,
any Indebtedness of the Company that is subordinate or junior in right of
payment to the Notes or (d) make any Investment (other than Permitted
Investments) (each of the foregoing actions set forth in clauses (a), (b) (c)
and (d) being referred to as a "Restricted Payment"), if at the time of such
Restricted Payment or immediately after giving effect thereto, (i) a Default or
an Event of Default shall have occurred and be continuing or (ii) the Company is
not able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.10 of this Indenture or
(iii) the aggregate amount of Restricted Payments (including such proposed
Restricted Payment) made subsequent to May 28, 1998 (the amount expended for
such purposes, if other than in cash, being the fair market value of such
property as determined reasonably and in good faith by the Board of Directors of
the Company) shall exceed the sum of the following amounts (without
duplication): (1) 50 percent of the cumulative Consolidated Net Income (or if
cumulative Consolidated Net Income shall be a loss, minus 100 percent of such
loss) of the Company accrued on a cumulative basis during the period beginning
on July 1, 1998 and ending on the last day of the last fiscal quarter preceding
the date the Restricted Payment occurs (the "Reference Date") (treating such
period as a single accounting period); plus (2) 100 percent of the aggregate net
cash proceeds received by the Company from any Person (other than a Subsidiary
of the Company) from the issuance and sale subsequent to May 28, 1998 and on or
prior to the Reference Date of Qualified Capital Stock of the Company or any
options, warrants or other rights to acquire Qualified Capital Stock of the
42
Company; plus (3) 100 percent of the aggregate net cash proceeds received
subsequent to May 28, 1998 by the Company from any Person (other than a
Subsidiary of the Company) from the issuance or sale of debt securities or
shares of Disqualified Capital Stock that have been converted into or exchanged
for Qualified Capital Stock, together with the aggregate cash received by the
Company at the time of such conversion or exchange; plus (4) 100 percent of the
aggregate net cash proceeds of any equity contribution received by the Company
from a holder of the Company's Capital Stock; plus (5) an amount equal to the
net reduction in Investment made pursuant to this first paragraph of this
Section 4.09 in any Person resulting from payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other transfers of assets, in
each case to the Company or any Restricted Subsidiary (except to the extent any
such payment is included in the calculation of Consolidated Net Income), or from
redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries valued in
each case as provided in the definition of "Investments," not to exceed the
amount of Investments previously made by the Company or any Restricted
Subsidiary in such Person.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (1) the payment of any dividend
or the consummation of any irrevocable redemption within 60 days after the date
of declaration of such dividend or the giving of notice of such irrevocable
redemption if the dividend or redemption would have been permitted on the date
of declaration or the giving of such irrevocable redemption notice; (2) if no
Default or Event of Default shall have occurred and be continuing, the
repurchase, redemption or other acquisition or retirement of any shares of
Capital Stock of the Company, either (i) solely in exchange for shares of
Qualified Capital Stock of the Company or any options, warrants or other rights
to acquire Qualified Capital Stock of the Company or (ii) through the
application of net proceeds of a substantially concurrent sale for cash (other
than to a Subsidiary of the Company and other than the Common Stock Offering) of
shares of Qualified Capital Stock of the Company, or any options, warrants or
other rights to acquire Qualified Capital Stock of the Company; (3) if no
Default or Event of Default shall have occurred and be continuing, the
acquisition of any Indebtedness of the Company that is subordinate or junior in
right of payment to the Notes either (i) solely in exchange for shares of
Qualified Capital Stock of the Company or any options, warrants or other rights
to acquire Qualified Capital Stock of the Company, (ii) through the application
of net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company and other than the Common Stock Offering) of shares of
Qualified Capital Stock of the Company or any options, warrants or other rights
to acquire Qualified Capital Stock of the Company, or (iii) if the acquisition
of such Indebtedness would constitute Refinancing Indebtedness; (4) if no
Default or Event of Default shall have occurred and be continuing, the
redemption at maturity of, or the payment of dividends in the form of additional
shares of Preferred Stock on the Series A Preferred Stock to the extent required
pursuant to the terms thereof or the payment of cash dividends on the Series A
Preferred Stock in an amount not to exceed $1.0 million in any fiscal year; and
(5) so long as no Default or Event of Default shall have occurred and be
continuing, repurchases by the Company of Common Stock of the Company from
employees of the Company or any of its Subsidiaries or their authorized
representatives upon the death, disability or termination of employment of such
employees, in an aggregate amount not to exceed $1.0 million in any calendar
year. In determining the aggregate amount of Restricted Payments made subsequent
to the Issue Date in accordance with clause (iii)
43
of the immediately preceding paragraph, amounts expended pursuant to clauses
(1), (2)(ii), (3)(ii), (4) and (5) of this paragraph shall be included in such
calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment complies with this Indenture and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's latest available internal quarterly
financial statements.
Section 4.10 Limitation on Incurrence of Additional Indebtedness
Except as set forth in this Section 4.10, the Company shall
not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume, guarantee, acquire, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
payment of (collectively, "incur") any Indebtedness (other than Permitted
Indebtedness); PROVIDED, HOWEVER, that if no Default or Event of Default shall
have occurred and be continuing at the time of or as a consequence of the
incurrence of any such Indebtedness, the Company or any Guarantor may incur
Indebtedness (including, without limitation, Acquired Indebtedness), if on the
date of the incurrence of such Indebtedness, after giving effect to the
incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the Company
is greater than 2.0 to 1.0 if such date of incurrence is on or prior to June 1,
2000 and greater than 2.25 to 1.0 thereafter. For purposes of determining any
particular amount of Indebtedness under this Section 4.10, (1) guarantees, Liens
or obligations with respect to letters of credit supporting Indebtedness
otherwise included in the determination of such particular amount shall not be
included and (2) any Liens granted pursuant to the equal and ratable provisions
referred to in Section 4.11 of this Indenture shall not be treated as
Indebtedness.
Upon each incurrence of Indebtedness, the Company may
designate under which provision of this Indenture such Indebtedness is being
incurred and such Indebtedness should be deemed to have been so incurred under
such provision and no other provision of this Indenture except as specifically
provided otherwise.
Section 4.11 Limitation on Liens Securing Indebtedness
The Company shall not, and shall not cause or permit any of
its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries whether owned on the
Issue Date or acquired after the Issue Date, or any proceeds therefrom, or
assign or otherwise convey any right to receive income or profits therefrom
unless (i) in the case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Notes, the Notes are secured by
a Lien on such property, assets or proceeds that is senior in priority to such
Liens and (ii) in all other cases, the Notes are equally and ratably secured,
except for (A) Liens existing as of the Issue Date to the extent and in the
manner such Liens are in effect on the Issue Date; (B) Liens securing Senior
Debt and Liens securing Guarantor Senior Debt; (C) Liens securing the Notes and
the Guarantees; (D) Liens of the Company or a Wholly Owned Restricted Subsidiary
of the Company on assets of any Subsidiary
44
of the Company; (E) Liens securing Refinancing Indebtedness which is incurred to
Refinance any Indebtedness which has been secured by a Lien permitted under this
Indenture and which has been incurred in accordance with the provisions of this
Indenture; PROVIDED, HOWEVER, that such Liens (A) are no less favorable to the
Holders and are not more favorable to the lienholders with respect to such Liens
than the Liens in respect of the Indebtedness being Refinanced and (B) do not
extend to or cover any property or assets of the Company or any of its
Restricted Subsidiaries not securing the Indebtedness so Refinanced; and (F)
Permitted Liens.
Section 4.12 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries
The Company shall not, and shall not cause or permit any of
its Restricted Subsidiaries to, directly or indirectly, create or otherwise
cause or permit to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary of the Company to (a) pay dividends or
make any other distributions on or in respect of its Capital Stock; (b) make
loans or advances or to pay any Indebtedness or other obligation owed to the
Company or any other Restricted Subsidiary of the Company; or (c) transfer any
of its property or assets to the Company or any other Restricted Subsidiary of
the Company, except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law; (2) this Indenture; (3) customary non-assignment
provisions of any contract or any lease governing a leasehold interest of any
Restricted Subsidiary of the Company; (4) any instrument governing Acquired
Indebtedness, which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired; (5) the Credit Agreement; (6)
agreements existing on the Issue Date to the extent and in the manner such
agreements are in effect on the Issue Date; (7) restrictions on the transfer of
assets subject to any Lien permitted under this Indenture imposed by the holder
of such Lien; (8) restrictions imposed by any agreement to sell assets permitted
under this Indenture to any Person pending the closing of such sale; (9) any
agreement or instrument governing Capital Stock of any Person that is acquired;
or (10) an agreement governing Indebtedness incurred to Refinance the
Indebtedness issued, assumed or incurred pursuant to an agreement referred to in
clause (2), (4),(5) or (6) above; PROVIDED, HOWEVER, that the provisions
relating to such encumbrance or restriction contained in any such Indebtedness
are no less favorable to the Company in any material respect as determined by
the Board of Directors of the Company in their reasonable and good faith
judgment than the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clause (2), (4), (5) or (6),
respectively.
Section 4.13 Prohibition on Incurrence of Senior Subordinated Debt;
Limitation on Layering
The Company shall not incur or suffer to exist Indebtedness
that is senior in right of payment to the Notes and subordinate in right of
payment to any other Indebtedness of the Company.
Section 4.14 Limitations on Transactions with Affiliates
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any
45
property or the rendering of any service) with, or for the benefit of, any of
its Affiliates (each an "Affiliate Transaction"), other than (x) Affiliate
Transactions permitted under paragraph (b) below and (y) Affiliate Transactions
on terms that are no less favorable than those that might reasonably have been
obtained in a comparable transaction at such time on an arm's-length basis from
a Person that is not an Affiliate of the Company or such Restricted Subsidiary.
All Affiliate Transactions (and each series of related Affiliate Transactions
which are similar or part of a common plan) involving aggregate payments or
other property with a fair market value in excess of $5,000,000 shall be
approved by the Board of Directors of the Company or such Restricted Subsidiary,
as the case may be, such approval to be evidenced by a Board Resolution stating
that such Board of Directors has determined that such transaction complies with
the foregoing provisions. If the Company or any Restricted Subsidiary of the
Company enters into an Affiliate Transaction (or a series of related Affiliate
Transactions related to a common plan) that involves an aggregate fair market
value of more than $10,500,000, the Company or such Restricted Subsidiary, as
the case may be, shall, prior to the consummation thereof, obtain a favorable
opinion as to the fairness of such transaction or series of related transactions
to the Company or the relevant Restricted Subsidiary, as the case may be, from a
financial point of view, from an Independent Financial Advisor and file the same
with the Trustee.
(b) The restrictions set forth in clause (a) above shall not
apply to (i) reasonable fees and compensation paid to, loans or advances to, and
indemnity provided on behalf of, officers, directors, employees or consultants
of the Company or any Restricted Subsidiary of the Company as determined in good
faith by the Company's Board of Directors or senior management; (ii)
transactions exclusively between or among the Company and any of its Wholly
Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned
Restricted Subsidiaries, provided such transactions are not otherwise prohibited
by this Indenture; (iii) any payments or transactions pursuant to agreements in
effect as of the Issue Date or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment thereto) in any
replacement agreement thereto so long as any such amendment or replacement
agreement is not more disadvantageous to the Holders in any material respect
than the original agreement as in effect on the Issue Date; (iv) Restricted
Payments permitted by this Indenture; and (v) any Investments by an Affiliate of
the Company in the Capital Stock (other than Disqualified Stock) of the Company
or any Restricted Subsidiary of the Company.
Section 4.15 Additional Subsidiary Guarantors
If the Company or any Guarantor transfers or causes to be
transferred, in one transaction or a series of related transactions, any
property with a fair market value of $500,000 or more to any domestic Restricted
Subsidiary that is not a Guarantor, or if the Company or any of its Restricted
Subsidiaries shall organize, acquire or otherwise invest in another domestic
Restricted Subsidiary having total assets with a book value in excess of
$500,000, then such transferee or acquired or other domestic Restricted
Subsidiary shall (i) execute and deliver to the Trustee a supplemental indenture
in form reasonably satisfactory to the Trustee pursuant to which such Restricted
Subsidiary shall unconditionally guarantee all of the Company's obligations
under the Notes and this Indenture on the terms set forth in this Indenture and
(ii) deliver to the Trustee an Opinion of Counsel that such supplemental
indenture has been duly
46
authorized, executed and delivered by such Restricted Subsidiary and constitutes
a legal, valid, binding and enforceable obligation of such Restricted
Subsidiary. Thereafter, such Restricted Subsidiary shall be a Guarantor for all
purposes of this Indenture.
Section 4.16 Release of Guarantors
No Guarantor shall consolidate or merge with or into (whether
or not such Guarantor is the surviving Person) another Person unless (i) subject
to the provisions of this Section 4.16 and certain other provisions of this
Indenture, the Person formed by or surviving any such consolidation or merger
(if other than such Guarantor) assumes all the obligations of such Guarantor
pursuant to a supplemental indenture in form reasonably satisfactory to the
Trustee, pursuant to which such person shall unconditionally guarantee, on a
senior subordinated basis, all of such Guarantor's obligations under such
Guarantor's guarantee, on the terms set forth in this Indenture; and (ii)
immediately before and immediately after giving effect to such transaction on a
PRO FORMA basis, no Default or Event of Default shall have occurred or be
continuing, or unless such Guarantor is consolidating or merging with or into or
selling its assets to the Company or another Guarantor that is a Wholly Owned
Restricted Subsidiary of the Company.
Upon the sale or disposition (whether by merger, stock
purchase, asset sale or otherwise) of a Guarantor of all of its assets to an
entity which is not a Guarantor or the designation of a Guarantor to become an
Unrestricted Subsidiary, which transaction is otherwise in compliance with this
Indenture (including, without limitation, the provisions of Section 4.08 and
5.01 hereof), such Guarantor will be deemed released from its obligations under
its Guarantee of the Notes; PROVIDED, however, that any such termination shall
occur only in the event that the Guarantor is released from all of its
obligations under the Credit Agreement.
Section 4.17 Conduct of Business
The Company and its Restricted Subsidiaries shall not engage
in any businesses which are not the same, similar or related to the businesses
in which the Company and its Restricted Subsidiaries are engaged on the Issue
Date.
Section 4.18 Corporate Existence
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Restricted
Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Restricted Subsidiaries if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Restricted Subsidiaries, taken as
a whole.
47
Section 4.19 Limitation of Preferred Stock of Restricted Subsidiaries
The Company shall not permit any of its Restricted
Subsidiaries to issue any Preferred Stock (other than to the Company or to a
Wholly Owned Restricted Subsidiary of the Company) or permit any Person (other
than the Company or a Wholly Owned Restricted Subsidiary of the Company) to own
any Preferred Stock of any Restricted Subsidiary of the Company.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Sale or Consolidation
The Company will not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and the Company's Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person 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 sale, assignment, transfer, lease, conveyance or other disposition the
properties and assets of the Company and of the Company's Restricted
Subsidiaries substantially as an entirety (the "Surviving Entity") (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 on all of the Notes and the
performance of every covenant of the Notes, this Indenture and the Registration
Rights Agreement 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 or such
Surviving Entity, as the case may be, (1) shall have a Consolidated Net Worth
equal to or greater than the Consolidated Net Worth of the Company immediately
prior to such transaction and (2) shall be able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.10 of this Indenture; (iii) immediately before and immediately after giving
effect to such transaction and the assumption contemplated by clause (i)(2)(y)
above (including, without limitation, giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred and any Lien
granted in connection with or in respect of the transaction), no Default or
Event of Default shall have occurred or be continuing; and (iv) the Company or
the Surviving Entity shall have delivered to the Trustee an officers'
certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and,
if a supplemental indenture is required in connection with such transaction,
such supplemental
48
indenture comply with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have been
satisfied.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of the Company the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company. Notwithstanding the foregoing clauses (ii)
and (iii) of this Section 5.01, any Restricted Subsidiary of the Company may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company or a Guarantor.
Section 5.02 Successor Corporation Substituted
Upon any consolidation, combination or merger or any transfer
of all or substantially all of the assets of the Company in accordance with the
foregoing, in which the Company is not the continuing corporation, 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 and the Notes with the same effect as if such surviving entity
had been named as such; PROVIDED that solely for the purpose of calculating
amounts described in clause (c) of the first paragraph of Section 4.09, any such
Surviving Person shall only be deemed to have succeeded to and be substituted
for the Company with respect to the period subsequent to the effective time of
this transaction (and the Company shall be deemed to be the "Company" for such
purposes for all prior periods).
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default
The following events shall constitute an "Event of Default":
(i) the failure to pay interest on any Notes when the
same becomes due and payable and the default continues for a period of
30 days (whether or not such payment shall be prohibited by the
subordination provisions of this Indenture);
(ii) the failure to pay the principal on any Notes,
when such principal becomes due and payable, at maturity, upon
redemption or otherwise (including the failure to make a payment to
purchase Notes tendered pursuant to a Change of Control Offer or a Net
Proceeds Offer) (whether or not such payment shall be prohibited by the
subordination provisions of this Indenture);
(iii) default in the observance or performance of any
other covenant or agreement contained in this Indenture which default
continues for a period of 30 days
49
after the Company receives written notice specifying the default (and
demanding that such default be remedied) from the Trustee or the
Holders of at least 25% of the outstanding principal amount of the
Notes (except in the case of a default with respect to Section 5.01 of
this Indenture, which will constitute an Event of Default with such
notice requirement but without such passage of time requirement);
(iv) the failure to pay at final maturity (giving
effect to any applicable grace periods and any extensions thereof) the
principal amount of any Indebtedness of the Company or any Restricted
Subsidiary of the Company and such failure continues for a period of 20
days or more, or the acceleration of the final stated maturity of any
such Indebtedness (which acceleration is not rescinded, annulled or
otherwise cured within 20 days of receipt by the Company or such
Restricted Subsidiary of notice of any such acceleration) if the
aggregate principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure
to pay principal at final maturity or which has been accelerated, in
each case with respect to which the 20-day period described above has
passed, aggregates $5,000,000 or more at any time;
(v) one or more judgments in an aggregate amount in
excess of $5,000,000 shall have been rendered against the Company or
any of its Significant Subsidiaries and such judgments remain
undischarged, unpaid or unstayed for a period of 60 days after such
judgment or judgments become final and non-appealable;
(vi) the following events of bankruptcy, insolvency
or reorganization under applicable Bankruptcy Laws in respect of the
Company or any of its Significant Subsidiaries:
(a) the Company or any of its Significant
Subsidiaries pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case, (ii) consents
to the entry of an order for relief against it in an
involuntary case, (iii) consents to the appointment of a
custodian of it or for all or substantially all of its
property, (iv) consents to or acquiesces in the institution of
a bankruptcy or an insolvency proceeding against it, or (v)
makes a general assignment for the benefit of its creditors;
or
(b) a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that (i) is for
relief against the Company or any Significant Subsidiary in an
involuntary case, (ii) appoints a custodian of the Company or
any Significant Subsidiary or for all or substantially all of
the property of the Company or a Significant Subsidiary, or
(iii) orders the liquidation of the Company or any Significant
Subsidiary, and, in each case of the preceding (i), (ii) or
(iii), the order or decree remains unstayed and in effect for
60 consecutive days.
(vii) any of the Guarantees of a Guarantor that is a
Significant Subsidiary ceases to be in full force and effect or any of
such Guarantees is declared to be null and void and unenforceable or
any of such Guarantees is found to be invalid or any
50
of such Guarantors denies its liability under its Guarantee (other than
by reason of release of such Guarantor in accordance with the terms of
this Indenture).
Section 6.02 Acceleration
If an Event of Default (other than an Event of Default
specified in clause (vi) above with respect to the Company) shall occur and be
continuing, the Trustee or the Holders of at least 25% in principal amount of
outstanding Notes may declare the principal of and accrued interest on all the
Notes to be due and payable by notice in writing to the Company and the Trustee
specifying the respective Event of Default and that it is a "notice of
acceleration" (the "Acceleration Notice"), and the same (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding under
the Credit Agreement, shall become immediately due and payable upon the first to
occur of an acceleration under the Credit Agreement or 5 business days after
receipt by the Company and the Representative under the Credit Agreement of such
Acceleration Notice but only if such Event of Default is then continuing. If an
Event of Default specified in clause (vi) above with respect to the Company
occurs and is continuing, then all unpaid principal of, and premium, if any, and
accrued and unpaid interest on all of the outstanding Notes shall IPSO FACTO
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect
to the Notes as described in the preceding paragraph, the Holders of a majority
in principal amount of the Notes may rescind and cancel such declaration and its
consequences (i) if the rescission would not conflict with any judgment or
decree, (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (v) in
the event of the cure or waiver of an Event of Default of the type described in
clause (vi) of the description above of Events of Default, the Trustee shall
have received an Officers' Certificate and an Opinion of Counsel that such Event
of Default has been cured or waived. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
51
Section 6.03 Other Remedies
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal, premium, if any, or Additional Interest, if any, and
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture. Holders of the Notes may not enforce this Indenture or
the Notes except as provided in this Indenture and under the TIA. Subject to the
provisions of this Indenture relating to the duties of the Trustee, the Trustee
is under no obligation to exercise any of its rights or powers under this
Indenture at the request, order or direction of any of the Holders, unless such
Holders have offered to the Trustee reasonable indemnity.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults
The Holders of a majority in principal amount of the then
outstanding Notes may waive any existing Default or Event of Default under this
Indenture, and its consequences, except a default in the payment of the
principal of or interest on any Notes.
Section 6.05 Control by Majority
Subject to all provisions of this Indenture and applicable
law, the Holders of a majority in aggregate principal amount of the then
outstanding Notes have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the Trustee,
in its sole discretion, determines may be unduly prejudicial to the rights of
other Holders of Notes, that may result in the incurrence of liability by the
Trustee or if the Trustee determines that it does not have reasonable security
or, at the option of the Trustee, in lieu of such security, an 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. This Section 6.05 shall be in lieu of TIA /section/ 315(d)(3) and
said TIA section is hereby expressly excluded from this Indenture, as permitted
by the TIA.
Section 6.06 Limitation on Suits
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
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(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder or Holders offer and, if requested, provide to
the Trustee security or, at the option of the Trustee, in lieu of such
security, an indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of the security or, at the option of the Trustee, in lieu of
such security, an indemnity; and
(e) during such 60-day period the Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give
the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
Section 6.07 Rights of Holders of Notes to Receive Payment
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal, premium, if any, and
Additional Interest, if any, and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.08 Collection Suit by Trustee
If an Event of Default, specified in Section 6.01(1) or (2),
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, and Additional Interest, if any, and
interest remaining unpaid on the Notes and interest on overdue principal and, to
the extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due to the Trustee pursuant to Section 7.07.
Section 6.09 Trustee May File Proof of Claim
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby
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authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding, whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: subject to Articles Ten and Eleven, to Holders for
amounts due and unpaid on the Notes for interest and premium, if any, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for interest and premium, if any, respectively;
THIRD: subject to Articles Ten and Eleven, to Holders for
amounts due and unpaid on the Notes for principal, ratably without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal; and.
FOURTH: subject to Articles Ten and Eleven, to the Company,
the Guarantors, if any, or any obligor on the Notes, as their interests may
appear, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any
payment to Holders 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 does not apply to a suit
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by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof, or a suit by
Holders of more than 10% in principal amount of the then outstanding Notes.
Section 6.12 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 7
TRUSTEE
Section 7.01 Duties of Trustee
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its 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 of
which the Trustee is charged with knowledge pursuant to Section 7.02(g):
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of an Officers' Certificate or
Opinion of Counsel, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture but need not verify the contents thereof. This
subparagraph (b)(ii) shall be in lieu of TIA /section/ 315(d)(3) and
said TIA section is hereby expressly excluded from this Indenture, as
permitted by the TIA.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
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(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(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 6.02, 6.04 or 6.05
hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c), (e) and (f) of this Section and Section 7.02.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of the Company or any Holder, unless the Company or
such Holder, as the case may be, shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02 Rights of Trustee
(a) The Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both, which shall
conform to Sections 12.04 and 12.05 hereof. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel. The Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
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(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by two Officers of the Company.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) Except with respect to Section 4.01 herein, the Trustee
shall have no duty to inquire as to the performance of the Company's covenants
in Article 4 hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Sections 6.01(i) or 6.01(ii) and Section 4.01 or (ii) any
Default or Event of Default of which the Trustee shall have received written
notification in accordance with Section 12.02 hereof from the Company or any
Holder.
Section 7.03 Individual Rights of Trustee
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate with the same rights it would have if it were not Trustee. However, in
the event that the Trustee acquires any conflicting interest, it must eliminate
such conflict within 90 days, apply to the SEC for permission to continue as
Trustee or resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of authentication
or for compliance by the Company with the Registration Rights Agreement.
Section 7.05 Notice of Defaults
If a Default or Event of Default occurs and is continuing and
if the Trustee is charged with knowledge thereof pursuant to Section 7.02(g)
hereof, the Trustee shall mail to Holders of Notes a notice of the Default or
Event of Default within 90 days after it occurs. Except in the case of a Default
or Event of Default in payment of principal of, premium, if any, Additional
Interest, if any, or interest on any Note, the Trustee may withhold the notice
if and so long as a committee of at least two of its Responsible Officers in
good faith determines that withholding the notice is in the interests of the
Holders of the Notes. The second sentence of this
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Section 7.05 shall be in lieu of the proviso to TIA /section/ 315(b) and said
TIA section is hereby expressly excluded from this Indenture, as permitted by
the TIA.
Section 7.06 Reports by Trustee to Holders of the Notes
Within 60 days after each August 1, beginning with the August
1 following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA /section/ 313(a) (but if
no event described in TIA /section/ 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA /section/ 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA /section/ 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Notes are listed in accordance with TIA /section/
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange or national securities market.
Section 7.07 Compensation and Indemnity
The Company shall pay to the Trustee from time to time
compensation for its acceptance of this Indenture and services hereunder in
accordance with a written agreement between the Trustee and the Company. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company and the Guarantors shall jointly and severally
indemnify the Trustee and its agents, employees, officers, directors and
shareholders for, and hold the Trustee and its agents, employees, officers,
directors and shareholders harmless against, any and all losses, liabilities or
expenses (including, without limitation, reasonable attorneys' fees and
expenses) incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company (including this Section
7.07) and defending itself against any claim (whether asserted by the Company or
any Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith or willful misconduct. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations hereunder. At the
Trustee's sole discretion, the Company shall defend the claim with counsel
designated by the Company, who may be outside counsel to the Company but shall
in all events be reasonably satisfactory to the Trustee, and the Trustee shall
cooperate in the defense at the Company's expense. In addition, the Trustee may
retain separate counsel and, if the Trustee shall have been advised by such
counsel that there may be one or more legal defenses available to the Trustee
which are different from or in addition to those available to the Company and
which the counsel designated by the Company would be precluded from asserting or
that the
58
Trustee has one or more interests that conflict with those of the Company, the
Company shall pay the reasonable fees and expenses of such separate counsel. The
indemnification herein extends to any settlement, PROVIDED that the Company will
not be liable for any settlement made without its written consent, provided,
further, that such consent shall not be unreasonably withheld.
The obligations of the Company and the Guarantors under this
Section 7.07 shall survive the resignation or removal of the Trustee and/or the
satisfaction and discharge or termination of this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the resignation or removal
of the Trustee and/or satisfaction and discharge or termination of this
Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(vi) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA /section/
313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing, and
may appoint a successor Trustee with the Company's consent. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof,
unless the Trustee's duty to resign is stayed as provided in TIA
/section/ 310(b);
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
59
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of at least 10% in aggregate principal amount of the
then outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in TIA /section/ 310(b), any
Holder, who has been a bona fide Holder for at least six (6) months, may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, PROVIDED all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee. The provisions of TIA /section/ 310 shall
apply to the Company as obligor on the Notes.
Section 7.10 Eligibility; Disqualification
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA /section/ 310(a)(1), (2) and (5). The Trustee is subject to
TIA /section/ 310(b).
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Section 7.11 Preferential Collection of Claims Against Company
The Trustee is subject to TIA /section/ 311(a), excluding any
creditor relationship listed in TIA /section/ 311(b). A Trustee who has resigned
or been removed shall be subject to TIA /section/ 311(a) to the extent indicated
therein. The provisions of TIA /section/ 311 shall apply to the Company as
obligor on the Notes.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company may elect to have its
obligations and the obligations of the Guarantors discharged with respect to the
outstanding Notes ("Legal Defeasance"). Such Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the outstanding Notes, except for (i) the rights of Holders to
receive payments in respect of the principal of, premium, if any, and interest
on the Notes when such payments are due, (ii) the Company's obligations with
respect to the Notes concerning issuing temporary Notes, registration of Notes,
mutilated, destroyed, lost or stolen Notes and the maintenance of an office or
agency for payments, (iii) the rights, powers, trust, duties and immunities of
the Trustee and the Company's obligations in connection therewith and (iv) the
Legal Defeasance provisions of this Indenture. The Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.
Section 8.03 Covenant Defeasance
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company and Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from its obligations under the covenants contained in Sections 4.03,
4.04, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17 hereof
with respect to the outstanding Notes on and after the date the conditions set
forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes
shall thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
breach thereof) in connection with such covenants, but shall continue to be
deemed "outstanding" for all other purposes hereunder (it being understood that
such Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit
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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 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, subject to the satisfaction of the conditions
set forth in Section 8.04, Sections 6.01(iii), 6.01(v) and 6.01(vii) hereof
shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(i) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders cash in U.S. dollars,
non-callable U.S. government obligations, or a combination thereof, in
such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, if any, and interest on the Notes on the stated date for
payment thereof or on the applicable redemption date, as the case may
be;
(ii) in the case of Legal Defeasance, the Company
shall have delivered to the Trustee an opinion of counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there
has been a change in the applicable United States federal income tax
law, in either case to the effect that, and based thereon such opinion
of counsel shall confirm that, the Holders will not recognize income,
gain or loss for United States 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;
(iii) in the case of Covenant Defeasance, the Company
shall have delivered to the Trustee an opinion of counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders
will not recognize income, gain or loss for United States federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to United States 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;
(iv) immediately after giving effect to such deposit
on a pro forma basis, no Default or Event of Default shall have
occurred and be continuing on the date of such deposit (other than a
Default or Event of Default resulting from the incurrence of
62
Indebtedness, all or a portion of the proceeds of which will be used to
defease the Notes) or, insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending on
the 91st day after the date of deposit;
(v) such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a default
under this Indenture (other than a Default or Event of Default
resulting from the incurrence of Indebtedness, all or a portion of the
proceeds of which will be used to defease the Notes) or any other
material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(vi) the Company shall have delivered to the Trustee
an Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
(vii) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance have been complied with;
(viii) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that (A) the trust funds
will not be subject to any rights of holders of Senior Debt, including,
without limitation, those arising under this Indenture and (B) after
the 91st day following the deposit, the trust funds will not be subject
to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally; and
(ix) certain other customary conditions precedent are
satisfied.
Notwithstanding the foregoing, the Opinion of Counsel required
by clause (ii) above need not be delivered if all Notes not theretofore
delivered to the Trustee for cancellation (x) have become due and payable, (y)
will become due and payable on the maturity date within one year or (z) are to
be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
If the funds deposited with the Trustee to effect Covenant
Defeasance are insufficient to pay the principal of, premium, if any, Additional
Interest, if any, and interest on the Notes when due, then the obligations of
the Company and the Guarantors under this Indenture will be revived and no such
defeasance will be deemed to have occurred.
Section 8.05 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions
63
Subject to Section 8.06 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee satisfactory to the Company and the Trustee,
collectively for purposes of this Section 8.05, the "Trustee") pursuant to
Section 8.04 hereof in respect of the outstanding Notes shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, Additional Interest, if any, 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 cash or U.S.
Government Obligations deposited pursuant to Section 8.04 hereof or the
principal 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.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or U.S. Government Obligations held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
Section 8.06 Repayment to Company
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, Additional Interest, or interest on any Note and remaining unclaimed for
two years after such principal, and premium, if any, Additional Interest or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter, as a secured creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper of general
circulation, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 8.07 Reinstatement
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
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Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; PROVIDED, HOWEVER, that, if the Company makes any
payment of principal of, premium, if any, Additional Interest, if any, or
interest on any Note following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes
Notwithstanding Section 9.02 of this Indenture, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture, the
Guarantees or the Notes from time to time without the consent of any Holder of a
Note (so long as such amendment or supplement does not, in the opinion of the
Trustee, adversely affect the rights of any of the Holders in any material
respect):
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of Certificated Notes;
(c) to provide for the assumption of the Company's obligations
to the Holders in the case of a merger, sale or consolidation pursuant
to Article 5 hereof;
(d) to provide for additional Guarantors as set forth in
Section 4.15 and successor Guarantors as set forth in Section 11.03;
(e) to make any change that would provide any additional
rights or benefits to the Holders (including the addition of any
Guarantors) or that does not adversely affect the legal rights
hereunder of any Holder;
(f) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA; or
(g) to evidence, and provide for acceptance of, the
appointment of a successor Trustee hereunder.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, stating that the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture, the Trustee
shall join with the Company in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein contained,
but the Trustee
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shall not be obligated to enter into such amended or supplemental indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
In order for the Trustee to formulate its opinion on the above matters, the
Trustee will be entitled to rely on such evidence as it deems appropriate,
including, without limitation, solely on an Opinion of Counsel.
Section 9.02 With Consent of Holders of Notes
Other modifications and amendments of this Indenture may be
made with the consent of the Holders of a majority in principal amount of the
then outstanding Notes issued under this Indenture, except that, without the
consent of each Holder affected thereby, no amendment may: (i) reduce the amount
of Notes whose Holders must consent to an amendment; (ii) reduce the rate of or
change or have the effect of changing the time for payment of interest,
including defaulted interest, on any Notes; (iii) reduce the principal of or
change or have the effect of changing the fixed maturity of any Notes, or change
the date on which any Notes may be subject to redemption or repurchase, or
reduce the redemption or repurchase price therefor; (iv) make any Notes payable
in money other than that stated in the Notes; (v) make any change in provisions
of this Indenture protecting the right of each Holder to receive payment of
principal of and interest on such Note on or after the due date thereof or to
bring suit to enforce such payment, or permitting Holders of a majority in
principal amount of Notes to waive Defaults or Events of Default; (vi) amend,
change or modify in any material respect the obligation of the Company to make
and consummate a Change of Control Offer in the event of a Change of Control or
make and consummate a Net Proceeds Offer with respect to any Asset Sale that has
been consummated or modify any of the provisions or definitions with respect
thereto; or (vii) modify or change any provision of this Indenture or the
related definitions affecting the subordination or ranking of the Notes or any
Guarantee in a manner which adversely affects the Holders; or (viii) release any
Guarantor from any of its obligations under its Guarantee or this Indenture
otherwise than in accordance with the terms of this Indenture.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 9.06
hereof, the Trustee shall join with the Company in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its sole discretion, but shall not
be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof. The calculation of Holders of Notes so consenting shall be made
pursuant to Section 2.09 hereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the
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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 amended or supplemental indenture or waiver.
Section 9.03 Compliance with Trust Indenture Act
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental indenture that complies with
the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by such Holder and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
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 30 days
prior to the first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be holders after such record
date. No such consent shall be valid or effective for more than 90 days after
such record date.
Section 9.05 Notation on or Exchange of Notes
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall authenticate
new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
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Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01) shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that such supplemental indenture
and this Indenture, as so amended or supplemented, constitute the valid and
binding obligations of the Company and the Guarantors, enforceable against each
of them in accordance with their respective terms (subject to customary and
necessary exceptions) and all conditions precedent have been complied with.
ARTICLE 10
SUBORDINATION
Section 10.01 Agreement to Subordinate
The Company agrees, and each Holder by accepting a Note
agrees, that the payment of all Obligations on the Notes is subordinated in
right of payment to the prior payment in full in cash or Cash Equivalents of all
Obligations on Senior Debt whether outstanding on the Issue Date or thereafter
incurred, including, without limitation, the Company's obligations under the
Credit Agreement. The Notes will rank PARI PASSU with the May 1998 Notes. This
Article 10 shall constitute a continuing offer to all Persons who become holders
of, or continue to hold, Senior Debt, and such provisions are made for the
benefit of the holders of Senior Debt.
Section 10.02 Liquidation; Dissolution; Bankruptcy
(a) Upon any payment or distribution of assets or securities
of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any total or partial liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors or
marshaling of assets of the Company, or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, whether voluntary or involuntary, all Obligations with respect to all
Senior Debt shall first be paid in full, in cash or Cash Equivalents, before any
payment or distribution of any kind or character is made on account of any
Obligations on the Notes, or for the acquisition of any of the Notes for cash or
property or otherwise; and until all such Obligations with respect to all Senior
Debt are paid in full in cash or Cash Equivalents, any distribution to which the
Holders of the Notes would be entitled but for the subordination provisions will
be made to the holders of Senior Debt as their interests may appear. Upon any
such dissolution, winding-up, liquidation, reorganization, bankruptcy,
insolvency, receivership or similar proceeding or assignment for the benefit of
creditors or marshaling of assets, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders of the Notes or the Trustee under this Indenture would be
entitled, except for the provisions hereof, shall be paid
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by the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other person making such payment or distribution, or by the Holders of
the Notes or by the Trustee under this Indenture if received by them, directly
to the holders of Senior Debt (PRO RATA to such holders on the basis of the
respective amounts of Senior Debt held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of Senior Debt remaining
unpaid until all such Senior Debt has been paid in full in cash or Cash
Equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of Senior Debt.
(b) To the extent any payment of Senior Debt (whether by or on
behalf of the Company, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar person, the Senior Debt or part thereof originally intended to
be satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
(c) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by the Trustee or any
Holder when such payment or distribution is prohibited by Section 10.03(a), such
payment or distribution shall be held in trust for the benefit of, and shall be
paid over or delivered to, the holders of Senior Debt (PRO RATA to such holders
on the basis of the respective amount of Senior Debt held by such holders) or
their respective Representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of Senior
Debt remaining unpaid until all such Senior Debt has been paid in full in cash
or Cash Equivalents, after giving effect to any concurrent payment, distribution
or provision therefor to or for the holders of such Senior Debt.
Section 10.03 Default on Senior Debt
If any default occurs and is continuing in the payment when
due, whether at maturity, upon any redemption, by declaration or otherwise, of
any principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Senior Debt, no
payment of any kind or character shall be made by or on behalf of the Company or
any other Person on its or their behalf with respect to any Obligations on the
Notes or to acquire any of the Notes for cash or property or otherwise. In
addition, if any other event of default occurs and is continuing with respect to
any Designated Senior Debt, as such event of default is defined in the
instrument creating or evidencing such Designated Senior Debt, permitting the
holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for the respective issue of
Designated Senior Debt gives written notice of the event of default to the
Trustee (a "Default Notice"), then, unless and until all events of default have
been cured or waived or have ceased to exist or the Trustee
69
receives notice from the Representative for the respective issue of Designated
Senior Debt terminating the Blockage Period (as defined below), during the 180
days after the delivery of such Default Notice (the "Blockage Period"), neither
the Company nor any other Person on its behalf shall (x) make any payment of any
kind or character with respect to any Obligations on the Notes or (y) acquire
any of the Notes for cash or property or otherwise. Notwithstanding anything
herein to the contrary, in no event will a Blockage Period extend beyond 180
days from the date the payment on the Notes was due and only one such Blockage
Period may be commenced within any 360 consecutive days. No event of default
which existed or was continuing on the date of the commencement of any Blockage
Period with respect to the Designated Senior Debt shall be, or be made, the
basis for commencement of a second Blockage Period by the Representative of such
Designated Senior Debt whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for a period of not
less than 90 consecutive days (it being acknowledged that any subsequent action,
or any breach of any financial covenants for a period commencing after the date
of commencement of such Blockage Period that, in either case, would give rise to
an event of default pursuant to any provisions under which an event of default
previously existed or was continuing shall constitute a new event of default for
this purpose).
Section 10.04 Acceleration of Notes
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
Section 10.05 When Distribution Must Be Paid Over
In the event that the Trustee or any Holder receives any
payment or distribution of assets of the Company or any Guarantor at a time when
such payment is prohibited by Section 10.03 hereof, such payment or distribution
shall be held in trust for the benefit of the holders of such Senior Debt, and
shall be paid or delivered by the Trustee or the Holders of the Notes, as the
case may be, to the holders of such Senior Debt remaining unpaid or unprovided
for or to their representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing any of such
Senior Debt may have been issued, ratably according to the aggregate principal
amounts remaining unpaid on account of such Senior Debt held or represented by
each, for application to the payment of all such Senior Debt remaining unpaid,
to the extent necessary to pay or to provide for the payment of all such Senior
Debt in full in cash or Cash Equivalents or otherwise to the extent holders
accept satisfaction of amounts due by settlement in other than cash or Cash
Equivalents after giving effect to any concurrent payment or distribution to the
holders of such Senior Debt.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and shall not be liable to any such
holders if the Trustee shall pay over or distribute to or on behalf of Holders
or the Company or any other Person money or assets to
70
which any holders of Senior Debt shall be entitled by virtue of this Article 10,
except if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.
Section 10.06 Notice by Company
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Notes pursuant to the provisions of this
Article Ten. Regardless of anything to the contrary contained in this Article
Ten or elsewhere in this Indenture, the Trustee shall not be charged with
knowledge of the existence of any default or event of default with respect to
any Senior Debt or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received
notice in writing from the Company, or from a holder of Senior Debt or a
Representative therefor, and, prior to the receipt of any such written notice,
the Trustee shall be entitled to assume (in the absence of actual knowledge to
the contrary) that no such facts exist.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article Ten, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amounts of Senior Debt held by
such person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article Ten and, if such evidence is not furnished, the
Trustee may defer any payment to such person pending judicial determination as
to the right of such person to receive such payment.
Section 10.07 Subrogation
After all Senior Debt is paid in full and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior Debt
to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article 10 to holders of Senior
Debt that otherwise would have been made to Holders is not, as between the
Company and Holders, a payment by the Company on the Notes.
Section 10.08 Relative Rights
This Article 10 defines the relative rights of Holders and
holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company, the Guarantors and
Holders, the obligation of the Company and the Guarantors, which is
absolute and unconditional, to pay, when due, principal of, premium, if
any, and interest and Additional Interest, if any, on the Notes in
accordance with their terms;
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(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior Debt;
or
(3) prevent the occurrence of any Default or Event of Default
under this Indenture or limit the Trustee or any Holder from exercising
its available remedies upon a Default or Event of Default, subject to
the rights of holders and owners of Senior Debt to receive
distributions and payments otherwise payable to Holders.
If the Company fails because of this Article 10 to pay
principal of or interest on a Note on the due date, the failure is still a
Default or Event of Default.
Section 10.09 Subordination May Not Be Impaired by Company
No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or a Guarantor, as applicable, or any Holder to comply with this
Indenture.
Section 10.10 Distribution or Notice to Representative
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative. The Company shall provide to the Trustee, in writing,
notice of the name and address of any Representative. In the absence of such a
notice, the Trustee may conclusively assume that no Representative exists.
Upon any payment or distribution of assets of the Company
referred to in this Article Ten, the Trustee, subject to the provisions of
Article Seven hereof, and the Holders of the Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings
are pending, or upon certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
delivered to the Trustee or the Holders of the Notes, for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Ten.
Section 10.11 Rights of Trustee and Paying Agent
The Trustee and any agent of the Company or the Trustee shall
be entitled to all the rights set forth in this Article Ten with respect to any
Senior Debt which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Debt and nothing in
this Indenture shall deprive the Trustee or any such agent of any of its rights
as such holder.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article
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Ten, and no implied covenants or obligations with respect to the holders of
Senior Debt shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and
shall not be liable to any such holders if the Trustee shall pay over or
distribute to or on behalf of Holders or the Company or any other person money
or assets to which any holders of Senior Debt shall be entitled by virtue of
this Article Ten, except if such payment is made as a result of willful
misconduct or gross negligence of the Trustee.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at the
Corporate Trust Administration Office of the Trustee at least one Business Day
prior to the date of such payment written notice of facts that would cause the
payment of any Obligations with respect to the Notes to violate this Article 10.
Only the Company or a Representative of Senior Debt previously identified by the
Company to the Trustee pursuant to Section 10.10 may give the notice. Nothing in
this Article 10 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
Section 10.12 Authorization to Effect Subordination
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 10, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof at least 30 days before the expiration of the
time to file such claim, either the Representative or the holders of the Senior
Debt are hereby authorized to file an appropriate claim for and on behalf of the
Holders of the Notes.
Section 1.01 Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt
to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Notes and without impairing
or releasing the subordination provided in this Article Ten or the obligations
hereunder of the Holders of the Notes to the holders of the Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment
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of, or renew or alter, Senior Debt, or otherwise amend or supplement in any
manner Senior Debt, or any instrument evidencing the same or any agreement under
which Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior Debt; (iii)
release any Person liable in any manner for the payment or collection of Senior
Debt; and (iv) exercise or refrain from exercising any rights against the
Company and any other Person.
Section 1.02 Amendments
The provisions of this Article 10 shall not be amended or
modified in a manner materially adverse to the holders of Senior Debt without
the written consent of the holders of all Senior Debt.
Section 10.13 Trustee's Compensation Not Prejudiced
Nothing in this Article 10 shall apply to amounts due to the
Trustee, in its capacity as such, pursuant to other Sections of this Indenture.
ARTICLE 11
SUBSIDIARY GUARANTEES
Section 11.01 Subsidiary Guarantees
Subject to the provisions of this Article 11, each Guarantor,
jointly and severally, hereby unconditionally guarantees on a senior
subordinated basis to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, that: (a) the
principal of, and premium, if any, Additional Interest, if any, and interest on
the Notes will be duly and punctually paid in full when due, subject to any
applicable grace period, whether at maturity, by acceleration or otherwise, and
interest on overdue principal of, and premium, if any, Additional Interest, if
any and (to the extent permitted by law) interest on any interest, if any, on
the Notes and all other obligations of the Company to the Holders or the Trustee
hereunder or under the Notes (including fees, expenses or other) will be
promptly paid in full or performed, all in accordance with the terms hereof; (b)
in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration or
otherwise; and (c) the other obligations of the Company under this Indenture.
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
Guarantor will be obligated to pay, or to perform or to cause the performance
of, the same immediately. An Event of Default under this Indenture or the Notes
shall constitute an event of default under this Subsidiary Guarantee, and shall
entitle the Holders of Notes to accelerate the obligations of each Guarantor
hereunder in the same manner and to the same extent as the obligations of the
Company. Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or
74
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any thereof, the entry of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives and relinquishes: (a) any right
to require the Trustee, the Holders or the Company (each, a "Benefitted Party")
to proceed against the Company, the Subsidiaries or any other Person or to
proceed against or exhaust any security held by a Benefitted Party at any time
or to pursue any other remedy in any secured party's power before proceeding
against the Guarantors; (b) any defense that may arise by reason of the
incapacity, lack of authority, death or disability of any other Person or
Persons or the failure of a Benefitted Party to file or enforce a claim against
the estate (in administration, bankruptcy or any other proceeding) of any other
Person or Persons; (c) demand, protest and notice of any kind (except as
expressly required by this Indenture), including but not limited to notice of
the existence, creation or incurring of any new or additional Indebtedness or
obligation or of any action or non-action on the part of the Guarantors, the
Company, the Subsidiaries, any Benefitted Party, any creditor of the Guarantors,
the Company or the Subsidiaries or on the part of any other Person whomsoever in
connection with any obligations the performance of which are hereby guaranteed;
(d) any defense based upon an election of remedies by a Benefitted Party,
including but not limited to an election to proceed against the Guarantors for
reimbursement; (e) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal; (f) any defense
arising because of a Benefitted Party's election, in any proceeding instituted
under Bankruptcy Law, of the application of Section 1111(b)(2) of the United
States Federal Bankruptcy Code; and (g) any defense based on any borrowing or
grant of a security interest under Section 364 of the Bankruptcy Code. The
Guarantors hereby covenant that the Subsidiary Guarantee will not be discharged
except by payment in full of all principal, premium, if any, Additional
Interest, if any, and interest on the Notes and all other costs provided for
under this Indenture, or as provided in Section 8.01.
If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or the Guarantors, or any trustee or
similar official acting in relation to either the Company or the Guarantors, any
amount paid by the Company or the Guarantors to the Trustee or such Holder, the
Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated
in full force and effect. Each of the Guarantors agrees that it will not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor agrees that, as between it, on the one hand,
and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article 6
hereof for the purposes hereof, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article 6 hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by such Guarantor for the
purpose of the Subsidiary Guarantee.
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Section 11.02 Execution and Delivery of Subsidiary Guarantees
To evidence the Subsidiary Guarantees set forth in Section
11.01 hereof, each of the Guarantors agrees that a notation of the Subsidiary
Guarantees substantially in the form included in Exhibit B shall be endorsed on
each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of the Guarantors by the Chairman of the Board, any
Vice Chairman, the President or one of the Vice Presidents of the Guarantors and
attested to by an Officer.
Each of the Guarantors agree that the Subsidiary Guarantees
set forth in this Article 11 will remain in full force and effect and apply to
all the Notes notwithstanding any failure to endorse on each Note a notation of
the Subsidiary Guarantees.
If an Officer whose facsimile signature is on a Note no longer
holds that office at the time the Trustee authenticates the Note on which the
Subsidiary Guarantees are endorsed, the Subsidiary Guarantees shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantees set forth in this Indenture on behalf of the Guarantors.
Section 11.03 Consolidation or Merger of Guarantors
(a) Each Guarantor may consolidate with or merge into or sell
its assets to the Company or another Guarantor that is a Wholly Owned Restricted
Subsidiary of the Company, or with other Persons upon the terms and conditions
set forth in this Section 11.03 and Section 11.04. Upon any such consolidation,
merger, transfer or sale, the Subsidiary Guarantee of such Guarantor shall no
longer have any force or effect.
(b) Except as set forth in paragraph (a) of this Section
11.03, each Guarantor (other than any Guarantor whose Guarantee is to be
released in accordance with the terms of the Guarantee and this Indenture in
connection with any transaction complying with the provisions of Section 4.08 of
this Indenture will not, and the Company will not cause or permit any Guarantor
to, consolidate with or merge with or into any Person other than the Company or
any other Guarantor unless: (i) the entity formed by or surviving any such
consolidation or merger (if other than the Guarantor) or to which such sale,
lease, conveyance or other disposition shall have been made is a corporation
organized and existing under the laws of the United States or any State thereof
or the District of Columbia; (ii) such entity assumes by supplemental indenture
all of the obligations of the Guarantor on the Guarantee; (iii) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing; and (iv) immediately after giving effect to
such transaction and the use of any net proceeds therefrom on a PRO FORMA basis,
the Company could satisfy the provisions of clause (ii) of the first paragraph
of Section 5.01 of this Indenture. Any merger or consolidation of a Guarantor
with and into the Company (with the Company being the surviving entity) or
another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company
need only comply with clause (iv) of the first paragraph of Section 5.01 of this
Indenture.
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Section 11.04 Releases Following Sale of Assets
Upon the sale or disposition (whether by merger, stock
purchase, asset sale or otherwise) of a Guarantor of all of its assets to an
entity which is not a Guarantor or the designation of a Guarantor to become an
Unrestricted Subsidiary, which transaction is otherwise in compliance with this
Indenture (including, without limitation, the provisions of Section 4.08), such
Guarantor shall be deemed released from its obligations under its Guarantee of
the Notes or Section 11.03 hereof, as the case may be; PROVIDED, however, that
any such termination shall occur only in the event that the Guarantor is
released from all of its obligations under the Credit Agreement. In the event of
an Asset Sale, the Net Cash Proceeds from such sale or other disposition are
treated in accordance with the provisions of Section 4.08 hereof. Upon delivery
by the Company to the Trustee of an Officers' Certificate and Opinion of
Counsel, each to the effect that such sale or other disposition was made by the
Company in accordance with the provisions of this Indenture, including without
limitation Section 4.08 hereof, the Trustee shall execute any documents
reasonably required in order to evidence the release of any such Guarantor from
its obligations under its Subsidiary Guarantee. Any Guarantor not released from
its obligations under its Subsidiary Guarantee shall remain liable for the full
amount of principal of and interest on the Notes and for the other obligations
of any Guarantor under this Indenture as provided in this Article 11.
Section 11.05 Limitation of Guarantor's Liability
Each Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that the guarantee
by such Guarantor pursuant to its Subsidiary Guarantee not constitute a
fraudulent transfer or conveyance for purposes of 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
such Guarantor hereby irrevocably agree that the obligations of such Guarantor
under this Article 11 shall be limited to the maximum amount which, after giving
effect to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the Obligations of such other Guarantor under this
Article 11, results in the Obligations of such Guarantor under the Subsidiary
Guarantee of such Guarantor not constituting a fraudulent transfer or conveyance
under federal or state law. Each Guarantor that makes a payment or distribution
under a Subsidiary Guarantee shall be entitled to a contribution from each other
Guarantor in an amount PRO RATA, based on the net assets of each Guarantor,
determined in accordance with GAAP.
Section 11.06 Application of Certain Terms and Provisions to the Guarantor
(a) For purposes of any provision of this Indenture which
provides for the delivery by any Guarantor of an Officers' Certificate and/or an
Opinion of Counsel, the definitions of such terms in Section 1.01 shall apply to
such Guarantor as if references therein to the Company were references to such
Guarantor.
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(b) Any request, direction, order or demand which by any
provision of this Indenture is to be made by any Guarantor, shall be sufficient
if evidenced as described in Section 12.02 as if references therein to the
Company were references to such Guarantor.
(c) Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders to or on any Guarantor may be given or served as described in
Section 12.02 as if references therein to the Company were references to such
Guarantor.
(d) Upon any demand, request or application by any Guarantor
to the Trustee to take any action under this Indenture, such Guarantor shall
furnish to the Trustee such certificates and opinions as are required in Section
11.04 hereof as if all references therein to the Company were references to such
Guarantor.
Section 11.07 Subordination of Subsidiary Guarantees
The Obligations of each Guarantor under its Subsidiary
Guarantee pursuant to this Article 11 shall be junior and subordinated to all
obligations in respect of the Senior Debt of such Guarantor on the same basis as
the Notes are junior and subordinated to all obligations in respect of the
Senior Debt of the Company. The Guarantees will rank PARI PASSU with the May
1998 Guarantees. For the purposes of the foregoing sentence, (a) each Guarantor
may make, and the Trustee and the Holders of the Notes shall have the right to
receive and/or retain, payments by any of the Guarantors only at such times as
they may receive and/or retain payments in respect of the Notes pursuant to this
Indenture, including Article 10 hereof, and (b) the rights and obligations of
the relevant parties relative to the Subsidiary Guarantees shall be the same as
their respective rights and obligations relative to the Notes and Senior Debt of
the Company pursuant to Article 10.
Section 11.08 No Payment on Guarantees in Certain Circumstances.
(a) If any default occurs and is continuing in the payment
when due, whether at maturity, upon any redemption, by declaration or otherwise,
of any principal of, interest on, unpaid drawings for letters of credit issued
in respect of, or regularly accruing fees with respect to, any Guarantor Senior
Debt or Senior Debt guaranteed by any Guarantor (a "GUARANTOR PAYMENT DEFAULT"),
no payment of any kind or character shall be made by or on behalf of the
Guarantor or any other Person on its behalf with respect to any Obligations on
the Notes or any of the obligations of such Guarantor on its Guarantee or to
acquire any of the Notes for cash or property or otherwise. In addition, if any
event of default other than a Guarantor Payment Default (a "GUARANTOR
NON-PAYMENT DEFAULT") occurs and is continuing with respect to any Designated
Senior Debt guaranteed by a Guarantor (which guarantee constitutes Guarantor
Senior Debt of such Guarantor), as such event of default is defined in the
instrument creating or evidencing such Designated Senior Debt, permitting the
holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for the respective issue of
Designated Senior Debt gives written notice of the Guarantor Non-payment Default
to the Trustee (a "GUARANTOR DEFAULT NOTICE"), then, unless and until all
Guarantor Non-payment Defaults have been cured or waived or have ceased to exist
or the Trustee receives notice from
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the Representative for the respective issue of Designated Senior Debt
terminating the Guarantor Blockage Period (as defined below), during the 180
days after the delivery of such Guarantor Default Notice (the "GUARANTOR
BLOCKAGE PERIOD"), neither the Guarantor nor any other Person on its behalf
shall (x) make any payment of any kind or character with respect to any
Obligations on the Notes or under its Guarantee or (y) acquire any of the Notes
for cash or property or otherwise. For all purposes of this Section 11.10(a), in
no event will a Guarantor Blockage Period extend beyond 180 days from the date
the payment on the Notes was due and only one such Guarantor Blockage Period may
be commenced within any 360 consecutive days. No Guarantor Non-payment Default
which existed or was continuing on the date of the commencement of any Guarantor
Blockage Period with respect to the Designated Senior Debt shall be, or be made,
the basis for commencement of a second Guarantor Blockage Period by the
Representative of such Designated Senior Debt whether or not within a period of
360 consecutive days, unless such Non-payment Default shall have been cured or
waived for a period of not less than 90 consecutive days (it being acknowledged
that any subsequent action or any breach of any financial covenants for a period
commencing after the date of commencement of such Guarantor Blockage Period
that, in either case, would give rise to a Guarantor Non-payment Default
pursuant to any provisions under which a Guarantor Non-payment Default
previously existed or was continuing shall constitute a new Guarantor
Non-payment Default for this purpose).
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by Section 11.08(a), such payment shall be held in trust for the
benefit of, shall be paid over or delivered to, the holders of Guarantor Senior
Debt (PRO RATA to such holders on the basis of the respective amount of
Guarantor Senior Debt held by such holders) or their respective Representatives,
as their respective interests may appear. The Trustee shall be entitled to rely
on information regarding amounts then due and owing on the Guarantor Senior
Debt, if any, received from the holders of Guarantor Senior Debt (or their
Representatives) or, if such information is not received from such holders or
their Representatives, from such Guarantor and only amounts included in the
information provided to the Trustee shall be paid to the holders of Guarantor
Senior Debt.
Nothing contained in this Article Eleven shall limit the right
of the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided that all Guarantor Senior Debt thereafter due or
declared to be due shall first be paid in full in cash or Cash Equivalents
before the Holders are entitled to receive any payment of any kind or character
with respect to the Obligations on the Notes or on account of any Guarantor's
Guarantee.
Section 11.09 Payment Over of Proceeds Upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of any
Guarantor of any kind or character, whether in cash, property or securities, to
creditors upon any total or partial liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors or marshaling of assets
of such Guarantor, or in a bankruptcy, reorganization, insolvency, receivership
or similar proceeding relating to any Guarantor or its property, whether
voluntary or
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involuntary, all Obligations with respect to all Guarantor Senior Debt shall
first be paid in full, in cash or Cash Equivalents, before any payment or
distribution of any kind or character is made on account of any Obligations on
the Notes or any of the Obligations of such Guarantor on its Guarantee, or for
the acquisition of any of the Notes for cash or property or otherwise; and until
all such Obligations with respect to all Guarantor Senior Debt are paid in full
in cash or Cash Equivalents, any distribution to which the Holders of the Notes
would be entitled but for the subordination provisions will be made to the
holders of Guarantor Senior Debt as their interests may appear. Upon any such
dissolution, winding-up, liquidation, reorganization, bankruptcy, insolvency,
receivership or similar proceeding or assignment for the benefit of creditors or
marshaling of assets, any payment or distribution of assets of any Guarantor of
any kind or character, whether in cash, property or securities, to which the
Holders of the Notes or the Trustee under this Indenture would be entitled,
except for the provisions hereof, shall be paid by such Guarantor or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, or by the Holders of the Notes or by the
Trustee under this Indenture if received by them, directly to the holders of
Guarantor Senior Debt (PRO RATA to such holders on the basis of the respective
amounts of Guarantor Senior Debt held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Guarantor Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Guarantor
Senior Debt remaining unpaid until all such Guarantor Senior Debt has been paid
in full in cash or Cash Equivalents after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of Guarantor
Senior Debt.
(b) To the extent any payment of Guarantor Senior Debt
(whether by or on behalf of such Guarantor, as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar person, the Guarantor
Senior Debt or part thereof originally intended to be satisfied shall be deemed
to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of a Guarantor of any kind or character,
whether in cash, property or securities, shall be received by the Trustee or any
Holder when such payment or distribution is prohibited by Section 11.09(a), such
payment or distribution shall be held in trust for the benefit of, and shall be
paid over or delivered to, the holders of Guarantor Senior Debt (PRO RATA to
such holders on the basis of the respective amount of Guarantor Senior Debt held
by such holders) or their respective Representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Guarantor Senior Debt
may have been issued, as their respective interests may appear, for application
to the payment of Guarantor Senior Debt remaining unpaid until all such
Guarantor Senior Debt has been paid in full in cash or Cash Equivalents, after
giving effect to any concurrent payment, distribution or provision therefor to
or for the holders of such Guarantor Senior Debt.
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Section 11.10 Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Eleven or elsewhere in this
Indenture shall prevent (i) any Guarantor, except under the conditions described
in Sections 10.02, 10.03, 11.08 and 11.09, from making payments at any time for
the purpose of making payments of principal of and interest on the Notes, or
from depositing with the Trustee any moneys for such payments, or (ii) in the
absence of actual knowledge by the Trustee that a given payment would be
prohibited by Section 10.02, 10.03, 11.08 or 11.09, the application by the
Trustee of any moneys deposited with it for the purpose of making such payments
of principal of and interest on the Notes to the Holders entitled thereto unless
at least one Day prior to the date upon which such payment would otherwise
become due and payable, the Trustee shall have received the written notice
provided for in Section 10.02(a), 10.07, 11.08(a) or in Section 11.09 (provided
that, notwithstanding the foregoing, such application shall otherwise be subject
to the provisions of the first sentence of Section 10.02(a), 11.08(a) and
Section 11.09). Each Guarantor shall give prompt written notice to the Trustee
of any dissolution, winding-up, liquidation or reorganization of any Guarantor.
Section 11.11 Subrogation
Subject to the payment in full in cash or Cash Equivalents of
all Guarantor Senior Debt, the Holders shall be subrogated to the rights of the
holders of Guarantor Senior Debt to receive payments or distributions of cash,
property or securities of such Guarantor applicable to the Guarantor Senior Debt
of such Guarantor until the Notes shall be paid in full; and, for the purposes
of such subrogation, no such payments or distributions to the holders of the
Guarantor Senior Debt by or on behalf of such Guarantor or by or on behalf of
the Holders by virtue of this Article Eleven which otherwise would have been
made to the Holders shall, as between the Guarantors and the Holders of the
Notes, be deemed to be a payment by such Guarantor to or on account of the
Guarantor Senior Debt, it being understood that the provisions of this Article
Eleven are and are intended solely for the purpose of defining the relative
rights of the Holders of the Notes, on the one hand, and the holders of the
Guarantor Senior Debt, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Eleven shall
have been applied, pursuant to the provisions of this Article Eleven, to the
payment of amounts payable under the Guarantor Senior Debt, then the Holders
shall be entitled to receive from the holders of such Guarantor Senior Debt any
payments or distributions received by such holders of Guarantor Senior Debt in
excess of the amount sufficient to pay all amounts payable under or in respect
of the Guarantor Senior Debt in full in cash or Cash Equivalents.
Section 11.12 Subordination Rights Not Impaired by Acts or Omissions of a
Guarantor or Holders of Guarantor Senior Debt.
No right of any present or future holders of any Guarantor
Senior Debt to enforce subordination as provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of any
Guarantor or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by such Guarantor with the terms of this Indenture,
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regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Guarantor Senior Debt may, at any time and from time
to time, without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders and without impairing or releasing
the subordination provided in this Article Eleven or the obligations hereunder
of the Holders to the holders of the Guarantor Senior Debt, do any one or more
of the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Guarantor Senior Debt, or otherwise amend
or supplement in any manner Guarantor Senior Debt, or any instrument evidencing
the same or any agreement under which Guarantor Senior Debt is outstanding; (ii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Guarantor Senior Debt; (iii) release any person liable in
any manner for the payment or collection of Guarantor Senior Debt; and (iv)
exercise or refrain from exercising any rights against such Guarantor and any
other person.
Section 11.13 Noteholders Authorize Trustee To Effectuate Subordination of
Guarantees.
Each Holder by its acceptance of them authorizes and expressly
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate, as between the holders of Guarantor Senior Debt and
the Holders, the subordination provided in this Article Eleven, and appoints the
Trustee its attorney-in-fact for such purposes, including, in the event of any
dissolution, winding-up, liquidation or reorganization of any Guarantor (whether
in bankruptcy, insolvency, receivership, reorganization or similar proceedings
or upon an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business as assets of such Guarantor, the filing of a claim
for the unpaid balance of its or his Notes and accrued interest in the form
required in those proceedings.
If the Trustee does not file a proper claim or proof of debt
in the form required in such proceeding prior to 30 days before the expiration
of the time to file such claim or claims, then the holders of the Guarantor
Senior Debt or their Representative are or is hereby authorized to have the
right to file and are or is hereby authorized to file an appropriate claim for
and on behalf of the Holders of said Notes. Nothing herein contained shall be
deemed to authorize the Trustee or the holders of Guarantor Senior Debt or their
Representative to authorize or consent to or accept or adopt on behalf of any
Holders any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee or the holders of Guarantor Senior Debt or their Representative to vote
in respect of the claim of any Holder in any such proceeding.
Section 1.01 Obligations of Each Guarantor Unconditional.
Nothing contained in this Article Eleven or elsewhere in this
Indenture or in the Notes or the Guarantees is intended to or shall impair, as
among any Guarantor, its creditors other than the holders of Guarantor Senior
Debt, and the Holders of the Notes, the obligation of such Guarantor, which is
absolute and unconditional, to pay to the Holders of the Notes the
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principal of and any interest on the Notes as and when the same shall become due
and payable in accordance with the terms of the Guarantees, or is intended to or
shall affect the relative rights of the Holders of the Notes and creditors of
any Guarantor other than the holders of Guarantor Senior Debt, nor shall
anything herein or therein prevent the Holder of any Note or the Trustee on its
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, in respect of cash,
property or securities of any Guarantor received upon the exercise of any such
remedy.
Section 1.02 Notice to Trustee.
The Company or any Guarantor shall give prompt written notice
to the Trustee of any fact known to the Company or any such Guarantor which
would prohibit the making of any payment to or by the Trustee in respect of the
Guarantees pursuant to the provisions of this Article Eleven. Regardless of
anything to the contrary contained in this Article Eleven or elsewhere in this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any default or event of default with respect to any Guarantor Senior Debt or of
any other facts which would prohibit the making of any payment to or by the
Trustee unless and until the Trustee shall have received notice in writing from
the Company or a Guarantor, or from a holder of Guarantor Senior Debt or a
Representative therefor, and, prior to the receipt of any such written notice,
the Trustee shall be entitled to assume (in the absence of actual knowledge to
the contrary) that no such facts exist.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any person as a holder of
Guarantor Senior Debt to participate in any payment or distribution pursuant to
this Article Eleven, the Trustee may request such person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amounts of Guarantor Senior
Debt held by such person, the extent to which such person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such person under this Article Eleven, and if such evidence is not
furnished the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
Section 1.03 Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of any Guarantor
referred to in this Article Eleven, the Trustee, subject to the provisions of
Article Seven hereof, and the Holders of the Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings
are pending, or upon certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
delivered to the Trustee or the holders of the Notes, for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Guarantor Senior Debt and other Indebtedness of such Guarantor,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Eleven.
Section 1.04 Trustee's Relation to Guarantor Senior Debt.
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The Trustee and any agent of any Guarantor or the Trustee
shall be entitled to all the rights set forth in this Article Eleven with
respect to any Guarantor Senior Debt which may at any time be held by it in its
individual or any other capacity to the same extent as any other holder of
Guarantor Senior Debt and nothing in this Indenture shall deprive the Trustee or
any such agent of any of its rights as such holder.
With respect to the holders of Guarantor Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Eleven, and no implied
covenants or obligations with respect to the holders of Guarantor Senior Debt
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Guarantor Senior Debt and
shall not be liable to any such holders if the Trustee shall pay over or
distribute to or on behalf of Holders or any such Guarantor or any other person
money or assets to which any holders of Guarantor Senior Debt shall be entitled
by virtue of this Article, except if such payment is made as a result of willful
misconduct or gross negligence of the Trustee.
Whenever a distribution is to be made or a notice given to
holders or owners of Guarantor Senior Debt, the distribution may be made and the
notice given to their Representatives, if any.
Section 1.05 Trustee's Compensation Not Prejudiced.
Nothing in this Article Eleven will apply to amounts due to
the Trustee, in its capacity as such, pursuant to other sections in this
Indenture.
Section 11.14 Article Eleven Not To Prevent Events of Default.
The failure to make a payment on account of principal of or
interest on the Notes by reason of any provision of this Article Eleven will not
be construed as preventing the occurrence of an Event of Default.
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA /section/ 318(c), the imposed duties
shall control.
Section 12.02 Notices
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by private courier service guaranteeing next day delivery, by telex,
by telecopier or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
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If to the Company or the Guarantors, if any:
Xxxx Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxx., XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone No.: (202)
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
If to the Trustee:
State Street Bank and Trust Company
Xxxxxxx Square
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telephone No.: (860)
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Xx.
with a copy to:
State Street Bank and Trust Company
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (212)
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration
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 to the Company, the Guarantors, if
any, or the Trustee shall be deemed to have been given or made as of the date so
delivered if personally delivered or delivered by private courier service
guaranteeing next day delivery; when answered back, if telexed; when receipt is
acknowledged, if faxed; and five (5) calendar days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA /section/ 313(c), to the extent required
by the
85
TIA. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time. If the Trustee
or an Agent mails a notice or communication to Holders, it shall mail a copy to
the Company at the same time.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes
Holders may communicate pursuant to TIA /section/ 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and any other relevant Person shall have
the protection of TIA /section/ 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied;
and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
Section 12.05 Statements Required in Certificate or Opinion
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA /section/ 314(a)(4)) shall comply with the provisions
of TIA /section/ 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
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 satisfied; and
86
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 12.06 Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees
and Shareholders
No direct or indirect shareholder, employee, officer or
director, as such, past, present or future of the Company, the Guarantors or any
successor entity shall have any personal liability in respect of the Obligations
of the Company or the Guarantors under this Indenture or the Notes solely by
reason of his or its status as such shareholder, employee, officer or director,
except that this provision shall in no way limit the Obligation of any Guarantor
pursuant to any guarantee of the Notes. Each Holder by accepting a Note waives
and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes. This provision does not affect any
possible claims under state and federal securities laws.
Section 12.08 Governing Law
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES,
WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF TO THE EXTENT THAT
THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. IF
ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY A HOLDER OF ANY OF THE NOTES OR BY
THE TRUSTEE IN ORDER TO ENFORCE ANY RIGHT OR REMEDY UNDER THIS INDENTURE OR
UNDER THE NOTES, THE COMPANY AND THE GUARANTORS HEREBY CONSENT AND WILL SUBMIT
TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE CITY
OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE CITY OF NEW YORK. THE COMPANY
AND THE GUARANTORS HEREBY AGREE TO ACCEPT SERVICE OF PROCESS BY NOTICE GIVEN TO
THE COMPANY PURSUANT TO THE PROVISIONS OF SECTION 12.02.
Section 12.09 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 12.10 Successors
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
87
Section 12.11 Severability
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 12.12 Counterpart Originals
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 12.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following pages]
88
IN WITNESS WHEREOF, each of the parties have executed this
Indenture as of the date first written above.
THE COMPANY:
XXXX CORP.
By:
--------------------------------
Xxxxx X. Xxxxxxxxxx
Chief Executive Officer
THE GUARANTORS:
XXXX ASSET MANAGEMENT, INC.
By:
--------------------------------
Xxxxx X. Xxxxxxxxxx
President
XXXX MACHINERY, INC.
By:
--------------------------------
Xxxxx X. Xxxxxxxxxx
President
XXXX RENTAL, INC.
By:
--------------------------------
Xxxxx X. Xxxxxxxxxx
President
Attest: AIR RENTAL & SUPPLY, INC.
------------------------
Xxxxxx X. Xxxxx By:
Vice President of each --------------------------------
of Xxxx Asset Management, Xxxxx X. Xxxxxxxxxx
Inc., Xxxx Machinery, Inc., President
Xxxx Rental, Inc. and
Air Rental & Supply, Inc.
89
THE TRUSTEE:
STATE STREET BANK AND TRUST COMPANY
By:
--------------------------------
Xxxxxx X. Xxxx, Xx.
Vice President
90
CUSIP No.__________
ISIN_______________
Exhibit A
(Face of Note)
10 1/4% [Series A] [Series B] Senior Subordinated Notes due 2008
No. _____ $200,000,000
XXXX CORP.
promises to pay to Cede & Co. or registered assigns, the principal sum of
__________________Dollars on June 1, 2008
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Dated: _______________, 199__
XXXX CORP.
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
This is one of the 10 1/4% Senior
Subordinated Notes referred to in the
within-mentioned Indenture:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
------------------------------------------
Name:
Title:
A-1
(Back of Note)
10 1/4% [Series A] [Series B] Senior Subordinated Notes due 2008
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OR A DEPOSITARY OR A SUCCESSOR DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.]1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE,
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (i) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT)(A "QIB"), (ii) IT HAS ACQUIRED
THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
ACT OR (iii) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (i) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (ii) TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(iii) IN AN OFFSHORE
------------
1 Include this paragraph only if the certificate represents a Global Note.
A-2
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (iv) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (v) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, AND (vi) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT OR (vii) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Xxxx Corp, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 10
1/4% per annum from December 9, 1998 until maturity and shall pay the Additional
Interest, if any, payable pursuant to Section 4 of the Registration Rights
Agreement referred to below. The Company will pay interest and Additional
Interest semi-annually on June 1 and December 1 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; PROVIDED that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; PROVIDED, FURTHER, that
the first Interest Payment Date shall be December 1, 1999. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, at the rate equal then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
A-3
2. METHOD OF PAYMENT. The Company will pay interest on the
Notes (except defaulted interest) and Additional Interest, if any, to the
Persons who are registered Holders of Notes at the close of business on the May
15 or November 15 next preceding the Interest Payment Date, even if such Notes
are cancelled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal, premium, if any,
interest and Additional Interest, if any, at the office or agency of the Company
maintained for such purpose in the Borough of Manhattan, The City of New York,
or, at the option of the Company, payment of interest and Additional Interest,
if any, may be made by check mailed to the Holders at their addresses set forth
upon the registry books of the Company, PROVIDED that payment by wire transfer
of immediately available funds will be required with respect to principal of,
interest, premium, if any, and Additional Interest, if any, on all Global Notes
and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank
and Trust Company, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of December 9, 1998 ("Indenture") between the Company, the Guarantors
and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code /sections/ 77aaa-77bbbb). The Notes are subject
to all such terms, and Holders are referred to the Indenture and such act for a
statement of such terms. The Notes are unsecured obligations of the Company
limited to $200,000,000 in aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this Section
of this Note, the Company shall not have the option to redeem the Notes prior to
June 1, 2003 other than out of the Net Cash Proceeds of a Public Equity Offering
of common stock. Thereafter, the Notes will be redeemable at the Company's
option, in whole at any time or in part from time to time, on or after June 1,
2003, upon not less than 30 nor more than 60 days' notice to each holder of
Notes, at the following redemption prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month period commencing
June 1 of the year set forth below, plus, in each case, accrued and unpaid
interest thereon, if any, to the date of redemption:
PERCENTAGE
----------
YEAR
----
2003.............................. 105.125%
2004.............................. 103.417%
2005.............................. 101.708%
2006 and thereafter............... 100.000%
A-4
(b) Notwithstanding the provisions of clause (a) of
this Section of the Notes, at any time, or from time to time, on or prior to
June 1, 2001, the Company may, at its option, use the net cash proceeds of one
or more Public Equity Offerings (as defined below) to redeem up to 30% of the
initial aggregate principal amount of the Notes issued under this Indenture at a
redemption price equal to 110.250 percent of the principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of redemption; PROVIDED
that at least 70% of the initial aggregate principal amount of the Notes issued
under this Indenture remains outstanding immediately after any such redemption.
In order to effect the foregoing redemption with the proceeds of any Public
Equity Offering, the Company shall make such redemption not more than 120 days
after the consummation of any such Public Equity Offering.
(c) In the event that less than all of the Notes are
to be redeemed at any time, selection of such Notes for redemption will be made
by the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which such Notes are listed or, if such Notes
are not then listed on a national securities exchange, on a PRO RATA basis, by
lot or by such method as the Trustee shall deem fair and appropriate; PROVIDED,
HOWEVER, that no Notes of a principal amount of $1,000 or less shall be redeemed
in part, PROVIDED, FURTHER, that if a partial redemption is made with the
proceeds of a Public Equity Offering, selection of the Notes or portions thereof
for redemption shall be made by the Trustee only on a PRO RATA basis or on as
nearly a PRO RATA basis as is practicable (subject to DTC procedures), unless
such method is otherwise prohibited. Notice of redemption shall be mailed by
first-class mail at least 30 but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at its registered address. If any
Note is to be redeemed in part only, the notice of redemption that relates to
such Note shall state the portion of the principal amount thereof to be
redeemed. A new Note in a principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Note. On and after the redemption date, interest will cease to
accrue on Notes or portions thereof called for redemption as long as the Company
has deposited with the Paying Agent funds in satisfaction of the applicable
redemption price pursuant to the Indenture. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption
unless the Company defaults in such payments due on the redemption date.
6. Mandatory Redemption.
The Company shall not be required to make mandatory
redemption payments with respect to the Notes.
7. Repurchase at Option of Holder Upon Certain Events.
(a) Upon the occurrence of a Change of Control, each
Holder will have the right to require that the Company purchase all or a portion
of such Holder's Notes pursuant to the offer described below (the "Change of
Control Offer"), at a purchase price equal to 101 percent of the principal
amount thereof plus accrued and unpaid interest to the date of purchase. The
Company is not required to make a Change of Control Offer if a third party makes
a Change of Control Offer that would be in compliance with the provisions
described in this
A-5
section if it were made by the Company and such third party purchases (for the
consideration referred to in the immediate preceding sentence) the Notes validly
tendered and not withdrawn.
Prior to the mailing of the notice referred to below,
but in any event within 30 days following any Change of Control, the Company
covenants to (i) repay in full and terminate all commitments under Indebtedness
under the Credit Agreement and all other Senior Debt the terms of which require
repayment upon a Change of Control or offer to repay in full and terminate all
commitments under all Indebtedness under the Credit Agreement and all such other
Senior Debt and to repay the Indebtedness owed to each lender which has accepted
such offer or (ii) obtain the requisite consents under the Credit Agreement and
all such other Senior Debt to permit the repurchase of the Notes as provided
below. The Company shall first comply with the covenant in the immediately
preceding sentence before it shall be required to repurchase Notes pursuant to
the provisions described below. The Company's failure to comply with the
covenant described in the immediately preceding sentence shall constitute an
Event of Default described in clause (iii) and not in clause (ii) under "Events
of Default" below.
Within 30 days following the date upon which the
Change of Control occurred, the Company must send, by first class mail, a notice
to each Holder, with a copy to the Trustee, which notice shall govern the terms
of the Change of Control Offer. Such notice shall state, among other things, the
purchase date, which must be no earlier than 30 days nor later than 45 days from
the date such notice is mailed, other than as may be required by law (the
"Change of Control Payment Date"). Holders electing to have a Note purchased
pursuant to a Change of Control Offer will be required to surrender the Note,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third business day prior to the Change of
Control Payment Date.
(b) The Company shall not, and shall not permit any
of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the
Company or the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets sold or otherwise disposed of (as determined in good faith
by the Company's Board of Directors), (ii) at least 70 percent of the
consideration received by the Company or the Restricted Subsidiary, as the case
may be, from such Asset Sale shall be in the form of cash or Cash Equivalents
and is received at the time of such disposition; and (iii) upon the consummation
of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary
to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of
receipt thereof either (A) to prepay any Senior Debt or Guarantor Senior Debt
and, in the case of any Senior Debt or Guarantor Senior Debt under any revolving
credit facility, effect a permanent reduction in the availability under such
revolving credit facility, (B) to make an investment in properties and assets
that replace the properties and assets that were the subject of such Asset Sale
or in properties and assets that will be used in the business of the Company and
its Restricted Subsidiaries as existing on the Issue Date or in businesses
reasonably related thereto ("Replacement Assets"), or (C) a combination of
prepayment and investment permitted by the foregoing clauses (iii)(A) and
(iii)(B). On the 366th day after an Asset Sale or such earlier date, if any, as
the Board of Directors of the Company or of such Restricted Subsidiary
determines not to
A-6
apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses
(iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each, a "Net
Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which
have not been applied on or before such Net Proceeds Offer Trigger Date as
permitted in clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding
sentence (each a "Net Proceeds Offer Amount") shall be applied by the Company or
such Restricted Subsidiary to make an offer to purchase (the "Net Proceeds
Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 30 days
nor more than 45 days following the applicable Net Proceeds Offer Trigger Date,
from all Holders on a PRO RATA basis, that amount of Notes equal to the Net
Proceeds Offer Amount at a price equal to 100 percent of the principal amount of
the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to
the date of purchase; PROVIDED, HOWEVER, that if at any time any non-cash
consideration received by the Company or any Restricted Subsidiary of the
Company, as the case may be, in connection with any Asset Sale is converted into
or sold or otherwise disposed of for cash (other than interest received with
respect to any such non-cash consideration), then such conversion or disposition
shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds
thereof shall be applied in accordance with this covenant. The Company may defer
the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer
Amount equal to or in excess of $10.0 million resulting from one or more Asset
Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not
just the amount in excess of $10.0 million, shall be applied as required
pursuant to this paragraph).
In the event of the transfer of substantially all
(but not all) of the property and assets of the Company and its Restricted
Subsidiaries as an entirety to a Person in a transaction permitted under Section
5.01 of the Indenture, the successor corporation shall be deemed to have sold
the properties and assets of the Company and its Restricted Subsidiaries not so
transferred for purposes of this covenant, and shall comply with the provisions
of this covenant with respect to such deemed sale as if it were an Asset Sale.
In addition, the fair market value of such properties and assets of the Company
or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash
Proceeds for purposes of this covenant.
Notwithstanding the two immediately preceding
paragraphs, the Company and its Restricted Subsidiaries shall be permitted to
consummate an Asset Sale without complying with such paragraphs to the extent
(i) at least 80 percent of the consideration for such Asset Sale constitutes
Replacement Assets and (ii) such Asset Sale is for fair market value; PROVIDED
that any consideration not constituting Replacement Assets received by the
Company or any of its Restricted Subsidiaries in connection with any Asset Sale
permitted to be consummated under this paragraph shall constitute Net Cash
Proceeds subject to the provisions of the two preceding paragraphs.
Each Net Proceeds Offer shall be mailed to the record
Holders as shown on the register of Holders within 30 days following the Net
Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with
the procedures set forth in the Indenture. Upon receiving notice of the Net
Proceeds Offer, Holders may elect to tender their Notes in whole or in part in
integral multiples of $1,000 in exchange for cash. To the extent Holders
properly tender Notes in an amount exceeding the Net Proceeds Offer Amount,
Notes of tendering Holders will
A-7
be purchased on a PRO RATA basis (based on amounts tendered). A Net Proceeds
Offer shall remain open for a period of 20 Business Days or such longer period
as may be required by law.
The Company shall comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent
that the provisions of any securities laws or regulations conflict with this
Section 4.08 of the Indenture, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.08 of the Indenture.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
9. PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions set forth in the Indenture, the Indenture or the Notes may be amended
or supplemented with the consent of the Holders of a majority in aggregate
principal amount of the then outstanding Notes, and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes. Without the consent of any Holder of a Note, the
Indenture or the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the Company's
obligations to Holders of the Notes in case of a merger or consolidation, to
make any change that would provide any additional rights or benefits to the
Holders of the Notes (including the addition of any Guarantors) or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act or to evidence and
provide for acceptance of, the appointment of a successor Trustee.
11. DEFAULTS AND REMEDIES. The following events are defined in
the Indenture as "Events of Default": (i) the failure to pay interest on any
Notes when the same becomes due and payable and the default continues for a
period of 30 days (whether or not such payment shall be prohibited by the
subordination provisions of the Indenture); (ii) the failure to pay the
A-8
principal on any Notes, when such principal becomes due and payable, at
maturity, upon redemption or otherwise (including the failure to make a payment
to purchase Notes tendered pursuant to a Change of Control Offer or a Net
Proceeds Offer) (whether or not such payment shall be prohibited by the
subordination provisions of the Indenture); (iii) default in the observance or
performance of any other covenant or agreement contained in the Indenture which
default continues for a period of 30 days after the Company receives written
notice specifying the default (and demanding that such default be remedied) from
the Trustee or the Holders of at least 25 of the outstanding principal amount of
the Notes (except in the case of a default with respect to Section 5.01 of the
Indenture, which will constitute an Event of Default with such notice
requirement but without such passage of time requirement); (iv) the failure to
pay at final maturity (giving effect to any applicable grace periods and any
extensions thereof) the principal amount of any Indebtedness of the Company or
any Restricted Subsidiary of the Company and such failure continues for a period
of 20 days or more, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise cured
within 20 days of receipt by the Company or such Restricted Subsidiary of notice
of any such acceleration) if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at final maturity or which has been
accelerated, in each case with respect to which the 20-day period described
above has passed, aggregates $5,000,000 or more at any time; (v) one or more
judgments in an aggregate amount in excess of $5,000,000 shall have been
rendered against the Company or any of its Significant Subsidiaries and such
judgments remain undischarged, unpaid or unstayed for a period of 60 days after
such judgment or judgments become final and non-appealable;(vi) certain events
of bankruptcy, insolvency or reorganization in respect of the Company or any of
its Significant Subsidiaries; (vii) any of the Guarantees of a Guarantor that is
a Significant Subsidiary ceases to be in full force and effect or any of such
Guarantees is declared to be null and void and unenforceable or any of such
Guarantees is found to be invalid or any of such Guarantors denies its liability
under its Guarantee (other than by reason of release of such Guarantor in
accordance with the terms of this Indenture).
If an Event of Default (other than an Event of Default
specified in clause (vi) above with respect to the Company) shall occur and be
continuing, the Trustee or the Holders of at least 25 in principal amount of
outstanding Notes may declare the principal of and accrued interest on all the
Notes to be due and payable by notice in writing to the Company and the Trustee
specifying the respective Event of Default and that it is a "notice of
acceleration" (the "Acceleration Notice"), and the same (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding under
the Credit Agreement, shall become immediately due and payable upon the first to
occur of an acceleration under the Credit Agreement or 5 business days after
receipt by the Company and the Representative under the Credit Agreement of such
Acceleration Notice but only if such Event of Default is then continuing. If an
Event of Default specified in clause (vi) above with respect to the Company
occurs and is continuing, then all unpaid principal of, and premium, if any, and
accrued and unpaid interest on all of the outstanding Notes 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.
A-9
At any time after a declaration of acceleration with respect
to the Notes as described in the preceding paragraph, the Holders of a majority
in principal amount of the Notes may rescind and cancel such declaration and its
consequences (i) if the rescission would not conflict with any judgment or
decree, (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (v) in
the event of the cure or waiver of an Event of Default of the type described in
clause (vi) of the description above of Events of Default, the Trustee shall
have received an officers' certificate and an opinion of counsel that such Event
of Default has been cured or waived. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
The Holders of a majority in principal amount of the then
outstanding Notes may waive any existing Default or Event of Default under this
Indenture, and its consequences, except a default in the payment of the
principal of or interest on any Notes.
12. SUBORDINATION. The payment of principal of, premium, if
any, and interest on the Notes will be subordinated in right of payment to the
prior payment in full of Senior Debt as set forth in Article 10 of the
Indenture.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or shareholder, of the Company, as such, shall not have any
liability for any Obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such Obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. This waiver and release are part of the consideration for the
issuance of the Notes.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED NOTES.
In addition to the rights provided to Holders of Notes under the Indenture,
Holders of Transfer Restricted Notes shall have all the rights set forth in the
Registration Rights Agreement dated as of the date of the Indenture, between the
Company and the parties named on the signature pages thereof (the "Registration
Rights Agreement").
A-10
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Xxxx Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
A-11
SCHEDULE OF EXCHANGES OF CERTIFICATED NOTE
The following exchanges of a part of this Global Note for
Certificated Notes have been made:
DATE OF EXCHANGE AMOUNT OF DECREASE IN AMOUNT OF INCREASE IN PRINCIPAL AMOUNT OF THIS SIGNATURE OF
---------------- PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF GLOBAL NOTE FOLLOWING AUTHORIZED OFFICER
THIS GLOBAL NOTE THIS GLOBAL NOTE SUCH DECREASE OF
---------------------- ---------------------- (OR INCREASE) TRUSTEE OR NOTE
------------------------- CUSTODIAN
-------------------
A-12
Assignment Form
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Date:__________________________________
Your Signature:_______________________________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee.
A-13
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.07 or 4.08 of the Indenture, check the box below:
G Section 4.07 G Section 4.08
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.07 or Section 4.08 of the Indenture, state
the amount you elect to have purchased: $___________
Date:__________________________________
Your Signature:_______________________________________________
(Sign exactly as your name appears on the
face of this Note)
Tax Identification No.:_____
Signature Guarantee.
A-14
EXHIBIT B
SUBSIDIARY GUARANTY
The Guarantors listed below (hereinafter referred to as the
"Guarantors," which term includes any successor or assign under the Indenture
(the "Indenture") and any additional Guarantors), have irrevocably and
unconditionally guaranteed (i) the due and punctual payment of the principal of,
premium, if any, Additional Interest, if any, and interest on the 10 1/4% Senior
Subordinated Notes due 2008 and issued in December 1998 (the "Notes") of Xxxx
Corp., a Delaware corporation (the "Company"), whether at stated maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, Additional Interest, if any, and premium, if any, and (to the
extent permitted by law) interest on any interest, if any, on the Notes, and the
due and punctual performance of all other obligations of the Company, to the
Holders or the Trustee all in accordance with the terms set forth in Article 11
of the Indenture, (ii) in case of any extension of time of payment or renewal of
any Notes or any such other obligations, that 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, and (iii) the
payment of any and all costs and expenses (including reasonable attorneys' fees)
incurred by the Trustee or any Holder in enforcing any rights under this
Subsidiary Guarantee.
The obligations of each Guarantor to the Holder and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article 11 of the Indenture and reference is hereby made to such
Indenture for the precise terms of this Guarantee.
No shareholder, officer, director, employee or incorporator,
as such, past, present or future of each Guarantor shall have any liability
under this Subsidiary Guarantee by reason of his or its status as such
shareholder, officer, director, employee or incorporator. Each Holder by
accepting a Note waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of the Notes. This provision does
not affect any possible claims under state and federal securities laws.
This is a continuing Guarantee and shall remain in full force
and effect and shall be binding upon each Guarantor and its successors and
assigns until full and final payment of all of the Company's obligations under
the Notes and Indenture and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders, and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This is a Guarantee of payment and not of collectibility.
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Notes to which this
Subsidiary Guarantee relates shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
B-1
The Obligations of each Guarantor under its Subsidiary
Guarantee shall be limited to the extent necessary to insure that it does not
constitute a fraudulent conveyance under applicable law.
The Obligations of each Guarantor under its Subsidiary
Guarantee pursuant to Article 11 of the Indenture shall be junior and
subordinated to the Senior Debt (as defined in the Indenture) of such Guarantor
on the same basis as the Notes are junior and subordinated to the Senior Debt of
the Company. For the purposes of the foregoing sentence, (a) each Guarantor may
make, and the Trustee and the Holders of the Notes shall have the right to
receive and/or retain, payments by any of the Guarantors only at such times as
they may receive and/or retain payments in respect of the Notes pursuant to the
Indenture, including Article 10 thereof, and (b) the rights and obligations of
the relevant parties relative to the Subsidiary Guarantees and the Guarantor
Senior Debt shall be the same as their respective rights and obligations
relative to the Notes and Senior Debt of the Company pursuant to Article 10 of
the Indenture.
The Obligations of each Guarantor under its Subsidiary
Guarantee pursuant to Article 11 of the Indenture shall rank PARI PASSU with the
May 1998 Guarantees.
THE TERMS OF ARTICLE 11 OF THE INDENTURE ARE INCORPORATED
HEREIN BY REFERENCE.
Capitalized terms used herein have the same meanings given in
the Indenture unless otherwise indicated.
B-2
IN WITNESS WHEREOF, each of the parties have executed this
Subsidiary Guarantee as of December 9, 1998.
Guarantors:
XXXX ASSET MANAGEMENT, INC.
By:
------------------------------------------
Name:
Title:
XXXX MACHINERY, INC.
By:
------------------------------------------
Name:
Title:
XXXX RENTAL, INC.
By:
------------------------------------------
Name:
Title:
AIR RENTAL & SUPPLY, INC.
By:
------------------------------------------
Name:
Title:
B-3
EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: 10 1/4% Senior Subordinated Notes due 2008
This Certificate relates to $__________ principal amount of Notes held in
* __________ book-entry or *__________ certificated form by_____________________
(the "Transferor").
The Transferor*:
has requested the Trustee by written order to deliver in
exchange for its beneficial interest in the Global Note held by the Depositary a
Note or Notes in certificated, registered form of authorized denominations in an
aggregate principal amount equal to its beneficial interest in such Global Note
(or the portion thereof indicated above); or
has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
In connection with such request and in respect of each such
Note, the Transferor does hereby certify that Transferor is familiar with the
Indenture relating to the above captioned Notes and as provided in Section 2.06
of such Indenture, the transfer of this Note does not require registration under
the Securities Act (as defined below) because:*
Such Note is being acquired for the Transferor's own account,
without transfer;
1. It is purchasing the Notes for its own account or
an account with respect to which it exercises sole investment discretion and
that it and/or any such account is not an "affiliate" (as defined in Rule 144
under the Securities Act) of the Company, is not acting on behalf of the Company
and is either:
a. a "Qualified Institutional Buyer" within the
meaning of Rule 144A promulgated under the Securities Act and
is aware that any sale of Notes to it will be made in reliance
on Rule 144A and such acquisition will be for its own account
or for the account of another Qualified Institutional Buyer;
or
b. a person that, at the time the buy order for the
Notes was originated, was outside the United States and was
not a U.S. person (and was not purchasing for the account or
benefit of a U.S. person) within the meaning of Regulation S
under the Securities Act.
2. The Notes are being offered for resale in a
transaction not involving any public offering in the United States within the
meaning of the Securities Act. The Notes have not been registered under the
Securities Act or any U.S. securities laws and they are being offered for resale
in transactions not requiring registration under the Securities Act. The
C-1
Notes may not be reoffered, resold, pledged or otherwise transferred within two
years after the original issuance of the Notes except (i) to a person whom the
purchaser reasonably believes is a Qualified Institutional Buyer in a
transaction meeting the requirements of Rule 144A, (ii) in an offshore
transaction complying with Rule 903 or Rule 904 of Regulation S, (iii) pursuant
to an exemption from registration under the Securities Act provided by Rule 144
thereunder (if available), (iv) to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act, an "IAI") that, prior to such transfer furnishes the Trustee a signed
letter containing certain representations and agreements relating to the
transfer of the Notes and, if such transfer is in respect of an aggregate
principal amount of Notes less than $250,000, an opinion of counsel acceptable
to the Company, if the Company so requests, that the transfer is in compliance
with the Securities Act, (v) in accordance with another exemption from the
registration requirements of the Securities Act (and based upon an opinion of
counsel acceptable to the Company, if the Company so requests), (vi) to the
Company or (vii) pursuant to an effective registration statement under the
Securities Act, and, in each case, in accordance with all applicable U.S. state
securities laws. The purchaser will notify any subsequent purchaser from it of
the resale restrictions set forth in the preceding sentence. No representation
is being made as to the availability of the exemption provided by Rule 144 for
resales of the Notes.
Such Note is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the
Securities Act, other than Rule 144A, 144 or Rule 904 under the Securities Act.
An Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate.
------------------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
---------------------------------------------
Date:
-------------------------------------------
C-2
CROSS-REFERENCE TABLE*
TRUST INDENTURE INDENTURE SECTION
ACT SECTION
--------------- -----------------
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(b) 7.08; 7.10; 12.02
(c) N.A.
311 (a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.05
(b) 12.03
(c) 12.03
313 (a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 7.06; 12.02
(d) 7.06
314 (a) 4.03(a); 4.04(a)(b) 12.02
(b) N.A.
(c)(1) 12.04
(c)(2) 7.02; 12.04
(c)(3) N.A.
(d) N.A.
(e) 12.05
(f) N.A.
315 (a) 7.01(b)
(b) 7.05; 12.02
(c) 7.01(A)
(d) 7.01(c)
(e) 6.11
316 (a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
317 (a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 12.01
1
---------------------
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
2
TABLE OF CONTENTS
Article 1 DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................1
Section 1.01 Definitions...........................................................................1
Section 1.02 Other Definitions....................................................................22
Section 1.03 Incorporation by Reference of Trust Indenture Act....................................23
Section 1.04 Rules of Construction................................................................23
Article 2 THE NOTES.............................................................................................24
Section 2.01 Form and Dating......................................................................24
Section 2.02 Execution and Authentication.........................................................24
Section 2.03 Registrar and Paying Agent; Depositary...............................................25
Section 2.04 Paying Agent to Hold Money in Trust..................................................25
Section 2.05 Holder Lists.........................................................................26
Section 2.06 Transfer and Exchange................................................................26
Section 2.07 Replacement Notes....................................................................31
Section 2.08 Outstanding Notes....................................................................32
Section 2.09 Treasury Notes.......................................................................32
Section 2.10 Temporary Notes......................................................................32
Section 2.11 Cancellation.........................................................................33
Section 2.12 Defaulted Interest...................................................................33
Section 2.13 Satisfaction and Discharge...........................................................33
Article 3 REDEMPTION AND PREPAYMENT.............................................................................34
Section 3.01 Notices to Trustee...................................................................34
Section 3.02 Selection of Notes to be Redeemed....................................................34
Section 3.03 Notice of Redemption.................................................................34
Section 3.04 Effect of Notice of Redemption.......................................................35
Section 3.05 Deposit of Redemption Price..........................................................35
Section 3.06 Notes Redeemed in Part...............................................................36
Section 3.07 Optional Redemption..................................................................36
Section 3.08 No Mandatory Redemption..............................................................36
Section 3.09 No Sinking Fund......................................................................37
Article 4 COVENANTS.............................................................................................37
Section 4.01 Payment of Notes.....................................................................37
Section 4.02 Maintenance of Office or Agency......................................................37
Section 4.03 Reports..............................................................................38
Section 4.04 Compliance Certificate...............................................................38
Section 4.05 Taxes................................................................................39
Section 4.06 Stay, Extension and Usury Laws.......................................................39
i
Section 4.07 Repurchase of Notes at the Option of the Holder upon a
Change of Control....................................................................39
Section 4.08 Limitation on Asset Sales............................................................40
Section 4.09 Limitation on Restricted Payments....................................................42
Section 4.10 Limitation on Incurrence of Additional Indebtedness..................................44
Section 4.11 Limitation on Liens Securing Indebtedness............................................44
Section 4.12 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries...............................................................45
Section 4.13 Prohibition on Incurrence of Senior Subordinated Debt;
Limitation on Layering...............................................................45
Section 4.14 Limitations on Transactions with Affiliates..........................................45
Section 4.15 Additional Subsidiary Guarantors.....................................................46
Section 4.16 Release of Guarantors................................................................47
Section 4.17 Conduct of Business..................................................................47
Section 4.18 Corporate Existence..................................................................47
Section 4.19 Limitation of Preferred Stock of Restricted Subsidiaries.............................48
Article 5 SUCCESSORS............................................................................................48
Section 5.01 Merger, Sale or Consolidation........................................................48
Section 5.02 Successor Corporation Substituted....................................................49
Article 6 DEFAULTS AND REMEDIES.................................................................................49
Section 6.01 Events of Default....................................................................49
Section 6.02 Acceleration.........................................................................51
Section 6.03 Other Remedies.......................................................................52
Section 6.04 Waiver of Past Defaults..............................................................52
Section 6.05 Control by Majority..................................................................52
Section 6.06 Limitation on Suits..................................................................52
Section 6.07 Rights of Holders of Notes to Receive Payment........................................53
Section 6.08 Collection Suit by Trustee...........................................................53
Section 6.09 Trustee May File Proof of Claim......................................................53
Section 6.10 Priorities...........................................................................54
Section 6.11 Undertaking for Costs................................................................54
Section 6.12 Restoration of Rights and Remedies...................................................55
Article 7 TRUSTEE 55
Section 7.01 Duties of Trustee....................................................................55
Section 7.02 Rights of Trustee....................................................................56
Section 7.03 Individual Rights of Trustee.........................................................57
Section 7.04 Trustee's Disclaimer.................................................................57
Section 7.05 Notice of Defaults...................................................................57
Section 7.06 Reports by Trustee to Holders of the Notes...........................................58
Section 7.07 Compensation and Indemnity...........................................................58
ii
Section 7.08 Replacement of Trustee...............................................................59
Section 7.09 Successor Trustee by Merger, etc.....................................................60
Section 7.10 Eligibility; Disqualification........................................................60
Section 7.11 Preferential Collection of Claims Against Company....................................61
Article 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE..............................................................61
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.............................61
Section 8.02 Legal Defeasance and Discharge.......................................................61
Section 8.03 Covenant Defeasance..................................................................61
Section 8.04 Conditions to Legal or Covenant Defeasance...........................................62
Section 8.05 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions................................................63
Section 8.06 Repayment to Company.................................................................64
Section 8.07 Reinstatement........................................................................64
Article 9 AMENDMENT, SUPPLEMENT AND WAIVER......................................................................65
Section 9.01 Without Consent of Holders of Notes..................................................65
Section 9.02 With Consent of Holders of Notes.....................................................66
Section 9.03 Compliance with Trust Indenture Act..................................................67
Section 9.04 Revocation and Effect of Consents....................................................67
Section 9.05 Notation on or Exchange of Notes.....................................................67
Section 9.06 Trustee to Sign Amendments, etc......................................................68
Article 10 SUBORDINATION........................................................................................68
Section 10.01 Agreement to Subordinate.............................................................68
Section 10.02 Liquidation; Dissolution; Bankruptcy.................................................68
Section 10.03 Default on Senior Debt...............................................................69
Section 10.04 Acceleration of Notes................................................................70
Section 10.05 When Distribution Must Be Paid Over..................................................70
Section 10.06 Notice by Company....................................................................71
Section 10.07 Subrogation..........................................................................71
Section 10.08 Relative Rights......................................................................71
Section 10.09 Subordination May Not Be Impaired by Company.........................................72
Section 10.10 Distribution or Notice to Representative.............................................72
Section 10.11 Rights of Trustee and Paying Agent...................................................72
Section 10.12 Authorization to Effect Subordination................................................73
Section 10.13 Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt.............................................73
Section 10.14 Amendments...........................................................................74
Section 10.15 Trustee's Compensation Not Prejudiced................................................74
Article 11 SUBSIDIARY GUARANTEES................................................................................74
Section 11.01 Subsidiary Guarantees................................................................74
iii
Section 11.02 Execution and Delivery of Subsidiary Guarantees......................................76
Section 11.03 Consolidation or Merger of Guarantors................................................76
Section 11.04 Releases Following Sale of Assets....................................................77
Section 11.05 Limitation of Guarantor's Liability..................................................77
Section 11.06 Application of Certain Terms and Provisions to the Guarantor.........................77
Section 11.07 Subordination of Subsidiary Guarantees...............................................78
Section 11.08 No Payment on Guarantees in Certain Circumstances....................................78
Section 11.09 Payment Over of Proceeds Upon Dissolution, Etc.......................................79
Section 11.10 Payments May Be Paid Prior to Dissolution............................................81
Section 11.11 Subrogation..........................................................................81
Section 11.12 Subordination Rights Not Impaired by Acts or Omissions of a
Guarantor or Holders of Guarantor Senior Debt........................................81
Section 11.13 Noteholders Authorize Trustee To Effectuate Subordination of
Guarantees...........................................................................82
Section 11.14 Obligations of Each Guarantor Unconditional..........................................82
Section 11.15 Notice to Trustee....................................................................83
Section 11.16 Reliance on Judicial Order or Certificate of Liquidating
Agent................................................................................83
Section 11.17 Trustee's Relation to Guarantor Senior Debt..........................................83
Section 11.18 Trustee's Compensation Not Prejudiced................................................84
Section 11.19 Article Eleven Not To Prevent Events of Default......................................84
Article 12 MISCELLANEOUS........................................................................................84
Section 12.01 Trust Indenture Act Controls.........................................................84
Section 12.02 Notices..............................................................................84
Section 12.03 Communication by Holders of Notes with Other Holders of Notes........................86
Section 12.04 Certificate and Opinion as to Conditions Precedent...................................86
Section 12.05 Statements Required in Certificate or Opinion........................................86
Section 12.06 Rules by Trustee and Agents..........................................................87
Section 12.07 No Personal Liability of Directors, Officers, Employees and
Shareholders.........................................................................87
Section 12.08 Governing Law........................................................................87
Section 12.09 No Adverse Interpretation of Other Agreements........................................87
Section 12.10 Successors...........................................................................87
Section 12.11 Severability.........................................................................88
Section 12.12 Counterpart Originals................................................................88
Section 12.13 Table of Contents, Headings, etc.....................................................88
EXHIBITS
Exhibit A FORM OF NOTE A-1
Exhibit B FORM OF GUARANTEE B-1
Exhibit C CERTIFICATE OF TRANSFEROR C-1
iv
