NAVISTAR FINANCIAL CORPORATION
AS ISSUER
NAVISTAR INTERNATIONAL CORPORATION
AND
----------------
BNY MIDWEST TRUST COMPANY
AS TRUSTEE
----------------
$220,000,000
4.75% SUBORDINATED EXCHANGEABLE NOTES DUE 2009
----------------
INDENTURE
DATED AS OF MARCH 25, 2002
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS.................................................................................1
SECTION 1.1 Definitions.......................................................................1
SECTION 1.2 Other Definitions.................................................................8
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.................................9
SECTION 1.4 Rules of Construction.............................................................9
ARTICLE 2 THE EXCHANGEABLE NOTES.....................................................................10
SECTION 2.1 Form and Dating..................................................................10
SECTION 2.2 Execution and Authentication.....................................................11
SECTION 2.3 Registrar, Paying Agent and Exchange Agent.......................................11
SECTION 2.4 Paying Agent To Hold Money in Trust..............................................12
SECTION 2.5 Holder Lists.....................................................................12
SECTION 2.6 Transfer and Exchange............................................................13
SECTION 2.7 Replacement Exchangeable Notes...................................................14
SECTION 2.8 Outstanding Exchangeable Notes...................................................15
SECTION 2.9 When Exchangeable Notes Owned by the Company or an Affiliate are Disregarded.....15
SECTION 2.10 Temporary Exchangeable Notes.....................................................16
SECTION 2.11 Cancellation.....................................................................16
SECTION 2.12 Defaulted Interest...............................................................17
SECTION 2.13 CUSIP Number.....................................................................17
SECTION 2.14 Regulation S.....................................................................17
ARTICLE 3 REDEMPTION.................................................................................17
SECTION 3.1 Optional Redemption Prices.......................................................17
SECTION 3.2 Notices to Trustee...............................................................18
SECTION 3.3 Selection by Trustee of Exchangeable Notes to be Redeemed.......................18
SECTION 3.4 Notice of Redemption.............................................................18
SECTION 3.5 Effect of Notice of Redemption...................................................20
SECTION 3.6 Deposit of Redemption Price......................................................20
SECTION 3.7 Securities Redeemed in Part......................................................20
ARTICLE 4 COVENANTS..................................................................................20
SECTION 4.1 Payment of Exchangeable Notes....................................................20
SECTION 4.2 Rule 144A Information; Periodic Reports to the Trustee...........................21
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 4.3 Compliance Certificate...........................................................21
SECTION 4.4 Maintenance of Office or Agency..................................................22
SECTION 4.5 Continued Existence..............................................................22
SECTION 4.6 Repurchase Upon Fundamental Change...............................................22
SECTION 4.7 Appointments to Fill Vacancies in Trustee's Office...............................25
SECTION 4.8 Stay, Extension and Usury Laws...................................................25
SECTION 4.9 Taxes............................................................................25
SECTION 4.10 Investment Company Act...........................................................25
ARTICLE 5 SUCCESSORS................................................................................26
SECTION 5.1 When the Company and Navistar May Merge, Etc.....................................26
SECTION 5.2 Successor Corporation Substituted................................................27
SECTION 5.3 Purchase Option on Fundamental Change............................................27
ARTICLE 6 DEFAULTS AND REMEDIES.....................................................................27
SECTION 6.1 Events of Default................................................................27
SECTION 6.2 Acceleration.....................................................................28
SECTION 6.3 Other Remedies...................................................................29
SECTION 6.4 Waiver of Past Defaults..........................................................29
SECTION 6.5 Control by Majority..............................................................29
SECTION 6.6 Limitation on Suits..............................................................30
SECTION 6.7 Rights of Holders to Receive Payment.............................................30
SECTION 6.8 Collection Suit by Trustee.......................................................30
SECTION 6.9 Trustee May File Proofs of Claim.................................................31
SECTION 6.10 Priorities.......................................................................31
SECTION 6.11 Undertaking for Costs............................................................32
ARTICLE 7 THE TRUSTEE...............................................................................32
SECTION 7.1 Duties of the Trustee............................................................32
SECTION 7.2 Rights of the Trustee............................................................33
SECTION 7.3 Individual Rights of the Trustee.................................................34
SECTION 7.4 Trustee's Disclaimer.............................................................35
SECTION 7.5 Notice of Defaults...............................................................35
SECTION 7.6 Reports by the Trustee to Holders................................................35
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 7.7 Compensation and Indemnity.......................................................35
SECTION 7.8 Replacement of the Trustee.......................................................36
SECTION 7.9 Successor Trustee by Merger, Etc.................................................37
SECTION 7.10 Eligibility, Disqualification....................................................38
SECTION 7.11 Preferential Collection of Claims Against Company................................38
ARTICLE 8 SATISFACTION AND DISCHARGE OF INDENTURE...................................................38
SECTION 8.1 Discharge of Indenture...........................................................38
SECTION 8.2 Deposited Monies to be Held in Trust by Trustee..................................38
SECTION 8.3 Paying Agent to Repay Monies Held................................................39
SECTION 8.4 Return of Unclaimed Monies.......................................................39
SECTION 8.5 Reinstatement....................................................................39
ARTICLE 9 AMENDMENTS................................................................................40
SECTION 9.1 Without the Consent of Holders...................................................40
SECTION 9.2 With the Consent of Holders......................................................40
SECTION 9.3 Compliance With the Trust Indenture Act..........................................42
SECTION 9.4 Revocation and Effect of Consents................................................42
SECTION 9.5 Notation on or Exchange of Exchangeable Notes....................................42
SECTION 9.6 Trustee Protected................................................................43
ARTICLE 10 SUBORDINATION.............................................................................43
SECTION 10.1 Agreement to Subordinate.........................................................43
SECTION 10.2 Terms and Conditions of Subordination............................................43
SECTION 10.3 Distribution on Acceleration or Notes, Dissolution and Reorganization............45
SECTION 10.4 Subrogation......................................................................48
SECTION 10.5 Trustee to Effectuate Subordination..............................................49
SECTION 10.6 Notice by the Company............................................................49
SECTION 10.7 Rights of the Trustee, Holders of Senior Indebtedness............................50
SECTION 10.8 Subordination may not be Impaired................................................51
ARTICLE 11 GENERAL PROVISIONS........................................................................51
SECTION 11.1 Trust Indenture Act Controls.....................................................51
SECTION 11.2 Notices..........................................................................51
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 11.3 Communication by Holders With Other Holders......................................52
SECTION 11.4 Certificate and Opinion as to Conditions Precedent...............................52
SECTION 11.5 Statements Required in Certificate or Opinion....................................52
SECTION 11.6 Rules by Trustee and Agents......................................................53
SECTION 11.7 Legal Holidays...................................................................53
SECTION 11.8 No Recourse Against Others.......................................................53
SECTION 11.9 Counterparts.....................................................................54
SECTION 11.10 Other Provisions.................................................................54
SECTION 11.11 Governing Law....................................................................55
SECTION 11.12 No Adverse Interpretation of Other Agreements....................................55
SECTION 11.13 Successors.......................................................................55
SECTION 11.14 Severability.....................................................................55
SECTION 11.15 Table of Contents, Headings, Etc.................................................55
ARTICLE 12 EXCHANGE OF EXCHANGEABLE NOTES............................................................55
SECTION 12.1 Right to Exchange................................................................55
SECTION 12.2 Exercise of Exchange Privilege; Issuance of Common Stock On Exchange; No
Adjustment for Interest or Dividends.............................................56
SECTION 12.3 Cash Payments in Lieu of Fractional Shares.......................................57
SECTION 12.4 Exchange Price...................................................................58
SECTION 12.5 Adjustment of Exchange Price.....................................................58
SECTION 12.6 Effect of Reclassification, Consolidation, Merger or Sale........................66
SECTION 12.7 Taxes on Shares Issued...........................................................67
SECTION 12.8 Reservation of Shares; Shares to Be Fully Paid; Listing of Common Stock..........67
SECTION 12.9 Responsibility of Trustee........................................................67
SECTION 12.10 Notice to Holders Prior to Certain Actions.......................................68
SECTION 12.11 Restriction on Common Stock Issuable Upon Exchange...............................69
ARTICLE 13 ASSUMPTION................................................................................70
SECTION 13.1 Assumption of the Notes..........................................................70
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
--------------- ---------
310(a)(1)....................................................................... 7.10
(a)(2)................................................................... 7.10, 10.10
(a)(3)................................................................... n/a
(a)(4)................................................................... n/a
(a)(5)................................................................... n/a
(b)...................................................................... 7.8, 7.10, 11.2
(c)...................................................................... n/a
311(a).......................................................................... 7.11
(b)...................................................................... 7.11
(c)...................................................................... n/a
312(a).......................................................................... 2.5
(b)...................................................................... 11.3
(c)...................................................................... 11.3
313(a).......................................................................... 7.6
(b)(1)................................................................... n/a
(b)(2)................................................................... 7.6
(c)...................................................................... 7.6, 11.2
(d)...................................................................... 7.6
314(a).......................................................................... 4.2, 11.2
(b)...................................................................... n/a
(c)(1)................................................................... 11.4
(c)(2)................................................................... 11.4
(c)(3)................................................................... n/a
(d)...................................................................... n/a
(e)...................................................................... 11.5
(f)...................................................................... n/a
315(a).......................................................................... 7.1(b)
(b)...................................................................... 7.5, 11.2
(c)...................................................................... 7.1(a)
(d)...................................................................... 7.1(c)
(e)...................................................................... 6.11
316(a)(last sentence)........................................................... 2.9
(a)(1)(A)................................................................ 6.5
(a)(1)(B)................................................................ 6.4
(a)(2)................................................................... n/a
(b)...................................................................... 6.2
(c)...................................................................... 9.4
317(a)(1)....................................................................... 6.8
(a)(2)................................................................... 6.9
(b)...................................................................... 2.4
318(a).......................................................................... 11.1
(b)...................................................................... n/a
(c)...................................................................... 11.1
----------
"n/a" means not applicable.
*This Cross-Reference Table shall not, for any purpose, be deemed to be a part
of the Indenture.
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THIS INDENTURE, dated as of March 25, 2002, is by and among
Navistar
Financial Corporation, a Delaware corporation (the "Company"), Navistar
International Corporation, a Delaware corporation ("Navistar"), and BNY Midwest
Trust Company, an Illinois trust company (the "Trustee"). The Company has duly
authorized the creation of its 4.75% Subordinated Exchangeable Notes due 2009
(the "Exchangeable Notes"), and to provide therefor the Company and the Trustee
have duly authorized the execution and delivery of this Indenture. Each party
agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the holders from time to time of the Exchangeable Notes:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions.
"Additional Provisions" has the meaning provided in Section 10.1.
"Affiliate" means, when used with reference to any person, any other person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such person. For the purposes of this definition, "control"
when used with respect to any specified person means the power to direct or
cause the direction of management or policies of the referent person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise. The terms "controlling" and "controlled" have meanings correlative
of the foregoing.
"Agent" means any Registrar, Paying Agent, Exchange Agent or co- registrar.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Global Security to the extent applicable
to such transaction and as in effect from time to time.
"Average Sale Price" of the Common Stock means, with respect to any
Exchange Date, the average of the Sales Prices of the Common Stock for each
Trading Day in the five Trading Day period immediately following the date on
which the Company delivers the notice described in Section 12.2.
"Board of Directors" means the Board of Directors of the Company or
Navistar, as the case may be, or in either case, any duly authorized committee
of the Board of Directors.
"Capital Stock" of any person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such person, but excluding any debt
securities exchangeable into such equity.
"Change of control" means the occurrence of one or more of the following
events: (1)(a) Navistar consolidates with or merges into another person (other
than a direct or indirect wholly-owned subsidiary) and the holders of the common
stock of Navistar immediately prior to the transaction receive for their common
stock shares of the resulting or surviving entity (or its
parent) which in the aggregate represent less than a majority of the total
voting power of all classes of voting stock that are normally entitled to vote
in the election of directors of the resulting or surviving entity (or its
parent) immediately after the transaction or (b) the Company consolidates with
or merges into another person (other than a direct or indirect wholly-owned
subsidiary of Navistar); (2)(a) any person (other than a direct or indirect
wholly-owned subsidiary) consolidates with or merges into Navistar and the
holders of the common stock of Navistar immediately prior to the transaction
beneficially own shares of the resulting or surviving entity which in the
aggregate represent less than a majority of the total voting power of all
classes of voting stock that are normally entitled to vote in the election of
directors of the resulting or surviving entity (or its parent) immediately after
the transaction or (b) any person (other than a direct or indirect wholly owned
subsidiary of Navistar) consolidates with or merges into the Company and the
Company ceases to be a direct or indirect wholly-owned subsidiary of Navistar
(or its successor under the indenture); (3)(a) Navistar, or Navistar together
with its subsidiaries taken as a whole, sells, conveys, transfers or leases all
or substantially all of their properties and assets to any person or group in
one or a series of transactions other than (i) to one or more of its direct or
indirect wholly-owned subsidiaries, (ii) in a Permitted Joint Venture or (iii) a
transaction in which the holders of the common stock of Navistar immediately
prior to the transaction receive for their common stock shares of the transferee
or lessee (or its parent) which in the aggregate represent a majority of the
total voting power of all classes of voting stock that are normally entitled to
vote in the election of directors of the transferee or lessee (or its parent)
immediately after the transaction or (b) the Company, or the Company together
with its subsidiaries taken as a whole, sells, conveys, transfers or leases all
or substantially all of their properties and assets to any person (other than
(i) to one or more of its direct or indirect wholly-owned subsidiaries or (ii)
receivables and related assets and interests therein in connection with a
Qualified Securitization Transaction); (4) any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act) other
than (i) Navistar or one or more of its direct or indirect wholly-owned
subsidiaries or (ii) employee or retirement benefit plans or trusts sponsored or
established by Navistar or its subsidiaries is or becomes after the issue date
of the notes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Securities Exchange Act) of shares representing more than 50% of the
combined voting power of the then outstanding voting stock that is normally
entitled to vote in the election of directors of Navistar or the Company; (5)
the outstanding common stock of Navistar is reclassified into, exchanged for or
converted into the right to receive any other property or security; PROVIDED,
HOWEVER, that a Change of Control shall not be deemed to have occurred (a) with
respect to Navistar if at least 90% of the aggregate fair market value (as
determined by Navistar's Board of Directors) of the property and securities
received or retained by holders of the Common Stock (excluding cash payments for
fractional shares) in the transaction or transactions constituting the Change of
Control consists of shares of common stock of the surviving person (or its
parent) that are, or upon issuance will be, traded on a United States national
securities exchange or approved for trading on the NASDAQ Stock Market and (b)
with respect to the Company, if there is no Ratings Decline.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means any stock of any class of Navistar (as defined below)
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
Navistar and which is not subject to
2
redemption by Navistar. Subject to the provisions of Section 12.6, however,
shares issuable on exchange of Exchangeable Notes shall include only shares of
the class designated as Common Stock of Navistar at the date of this Indenture
or shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of Navistar and which are not subject to redemption by
Navistar; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"Company" means the party named as such above until a successor replaces it
in accordance with Article 5 and thereafter means the successor. References to
the Company shall not include any subsidiary.
"Corporate Trust Office" means the corporate trust office of the Trustee at
which at any particular time the trust created by this Indenture shall
principally be administered; which as of the date hereof, is located at 0 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
"Default" means any event that is, or after notice or passage of time, or
both, would be, an Event of Default.
"Depositary" means, with respect to any Global Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as Depositary for such Global Securities (or any successor
securities clearing agency so registered), which shall initially be DTC.
"Designated Senior Indebtedness" means (a) Senior Indebtedness outstanding
on the date of this Indenture and, if there shall be a merger, consolidation or
share exchange of the Company or a successor shall assume the obligation of the
Company under this Indenture, the date of such merger, consolidation, share
exchange or assumption of the surviving entity and (b) the Company's obligations
under any particular Senior Indebtedness in which the instrument creating or
evidencing the same or the assumption or guarantee thereof, or related
agreements or documents to which the Company is a party, expressly provides that
such indebtedness shall be Designated Senior Indebtedness for purposes of this
Indenture.
"Disqualified Stock" means any capital stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the capital stock), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the capital stock, in whole or in part, on or prior to the date that
is 91 days after the date on which the Exchangeable Notes mature.
"DTC" means The Depository Trust Company, a
New York corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
3
"Exchangeable Notes" means the 4.75% Subordinated Exchangeable Notes due
2009 issued, authenticated and delivered under this Indenture.
"Exchange Price" means the initial exchange price specified in the form of
Exchangeable Note in Paragraph 14 of such form, as adjusted in accordance with
the provisions of Article 12.
"Fundamental Change" means the occurrence of a Change of Control, a
Termination of Trading or a Liquidation or Dissolution Plan.
"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 from time to time.
"Global Security" means an Exchangeable Note that is registered in the
Register.
"Global Securities Legend" means the legend labeled as such and that is set
forth in Exhibit A hereto.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Initial Purchasers" means Banc of America Securities LLC, Xxxxxxx Xxxxx
Xxxxxx Inc., Credit Suisse First Boston Corporation, X.X. Xxxxxx Securities,
Inc., Banc One Capital Markets, Inc. and Scotia Capital (USA) Inc.
"Interest Payment Date" means April 1 and October 1 of each year.
"Issue Date" means the date on which Exchangeable Notes are first issued
and authenticated under this Indenture.
"Liquidated Damages" has the meaning specified in paragraph 15 of the form
of Exchangeable Note which is attached as Exhibit A hereto.
"Liquidation or Dissolution Plan" means a plan adopted by either Navistar
or the Company relating to the liquidation or dissolution of either Navistar or
the Company while either are subject to this Indenture.
"Maturity Date" means April 1, 2009.
"Navistar" means Navistar International Corporation, a Delaware
corporation.
"Note Custodian" means BNY Midwest Trust Company, as custodian with respect
to any Global Security, or any successor entity thereto.
"Offering Memorandum" means the offering memorandum dated March 18, 2002,
relating to the Exchangeable Notes, including all amendments thereto.
4
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, the Chief Accounting Officer, any
Executive Vice President, Senior Vice President or Vice President (whether or
not designated by a number or numbers or word or words before or after the title
"Vice President"), the Treasurer, the Secretary and any Assistant Treasurer or
any Assistant Secretary of the Company or Navistar, as the case may be.
"Officers' Certificate" means a certificate signed by any two of the
following Officers of the Company or Navistar, as the case may be: the Chairman
of the Board, the Chief Executive Officer, the President, the Chief Financial
Officer, a Vice President, the Treasurer, the Controller or the Secretary, and
delivered to the Trustee. One of the officers giving an Officers' Certificate
given pursuant to Section 4.3 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal counsel, who may be
an employee of or counsel to the Company, Navistar or the Trustee except to the
extent otherwise indicated in this Indenture, and shall be reasonably acceptable
to the Trustee.
"Permitted Junior Securities" means (a) shares of stock of any class of the
Company other than Disqualified Stock or (b) securities of the Company other
than Disqualified Stock that are subordinated in right of payment to all Senior
Indebtedness that may be outstanding at the time of issuance or delivery of such
securities to substantially the same extent as, or to a greater extent than, the
Exchangeable Notes are so subordinated pursuant to the terms of this Indenture.
A "person" means any individual, corporation, partnership, joint venture,
trust, estate, unincorporated organization, limited liability company or
government or any agency or political subdivision thereof.
"Permitted Joint Venture" means any person which is, directly or
indirectly, through its subsidiaries or otherwise, engaged principally in any
business in which Navistar or its subsidiaries is engaged, or a reasonably
related business, and the capital stock or other equity interests of which is
owned directly or indirectly by Navistar and one or more persons other than
Navistar and its affiliates.
"Qualified Securitization Transaction" means any transaction or series of
transactions that have been or may be entered into by the Company or any of its
subsidiaries in connection with or reasonably related to a transaction or series
of transactions in which the Company or any of its subsidiaries may sell, convey
or otherwise transfer to (1) a Securitization Subsidiary or (2) any other
person, or may grant a security interest in, any receivables and related assets
or interests therein secured by the goods or services financed thereby (whether
such receivables and related assets are then existing or arising in the future)
of the Company or any of its subsidiaries, and any assets reasonably related
thereto including, without limitation, all security interests in goods or
services financed thereby, the proceeds of such receivables, and other assets
which are customarily sold or in respect of which security interests are
customarily granted in connection with securitization transactions involving
such assets.
"Ratings Decline" means that at any time within 30 days (which period will
be extended so long as the rating of the notes is under publicly announced
consideration for possible
5
downgrade by either of the rating agencies named below) after the date of public
notice of the Fundamental Change, or of the intention of the Company or of any
person to effect a Fundamental Change, the rating of the notes is decreased by
either of Standard & Poor's Rating Services or Xxxxx'x Investors Service, Inc.
and as a result of such decrease is less than BB-/Ba2.
"Registration Agreement" means the Registration Rights Agreement relating
to the Exchangeable Notes and Common Stock issuable upon exchange of such
Exchangeable Notes dated as of March 25, 2002, by and among the Company,
Navistar and the Initial Purchasers, as such agreement may be amended, modified
or supplemented from time to time.
"Regular Record Date" means the March 15 or September 15 immediately
preceding each Interest Payment Date.
"Restricted Common Stock Legend" means the legend labeled as such and that
is set forth in Exhibit B hereto.
"Restricted Securities Legend" means the legend labeled as such and that is
set forth in Exhibit A hereto.
"Sale Price" of the Common Stock on any date means the closing sale price
per share (or, if no closing sale price is reported, the average of the bid and
ask prices or, if more than one in either case, the average of the average bid
and average ask prices) on such date as reported in the composite transactions
for the principal United States securities exchange on which the Common Stock is
traded or, if the Common Stock is not listed on a United States national or
regional securities exchange, as reported by the National Association of
Securities Dealers Automated Quotation System, appropriately adjusted to take
into account the occurrence after the applicable Exchange Date of an event that
would result in an adjustment of the Exchange Price.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Securitization Subsidiary" means a wholly-owned subsidiary of the Company
which engages in no activities other than those reasonably related to or in
connection with the entering into of securitization transactions and which is
designated by the Board of Directors of the Company (as provided below) as a
Securitization Subsidiary (a) no portion of the indebtedness or any other
obligations (contingent or otherwise) of which (1) is guaranteed by the Company
or any other subsidiary of the Company other than pursuant to Standard
Securitization Undertakings, (2) is recourse to or obligates the Company or any
other subsidiary of the Company in any way other than pursuant to Standard
Securitization Undertakings or (3) subjects any property or asset of the Company
or any other subsidiary of the Company, directly or indirectly, contingently or
otherwise, to any lien or to the satisfaction thereof, other than pursuant to
Standard Securitization Undertakings, (b) with which neither the Company nor any
other subsidiary of the Company (1) provides any credit support (for the
avoidance of doubt, no loan agreement between the Company and its subsidiaries
shall be deemed to constitute "credit support") or (2) has any contract,
agreement, arrangement or understanding other than on terms that are fair and
reasonable and that are no less favorable to the Company or such subsidiary than
6
could be obtained from an unrelated person (other than Standard Securitization
Undertakings and intercompany notes relating to the sale of receivables and
related assets to such Securitization Subsidiary) and (c) with which neither the
Company nor any subsidiary of the Company has any obligation to maintain or
preserve such Subsidiary's financial condition or to cause such Subsidiary to
achieve certain levels of operating results. Any such designation by the board
of directors of the Company shall be evidenced by resolutions of the board of
directors of the Company giving effect to such designation.
"Senior Indebtedness" means the principal, premium, if any, and interest on
(a) all indebtedness of the Company, whether outstanding on the date of the
issuance of subordinated debt securities or thereafter created, incurred or
assumed, which is for money borrowed, or which is evidenced by a note or similar
instrument given in connection with the acquisition of any business, properties
or assets, including securities, (b) any indebtedness of others of the kinds
described in clause (a) above for the payment of which the Company is
responsible or liable as guarantor or otherwise and (c) amendments, renewals,
extensions and refundings of any such indebtedness, unless in any instrument or
instruments evidencing or securing such indebtedness or pursuant to which the
same is outstanding, or in any such amendment, renewal, extension or refunding,
it is expressly provided that such indebtedness is not superior in right of
payment to subordinated debt securities.
"Shelf Registration Statement" shall have the meaning set forth in the
Registration Agreement.
"Standard Securitization Undertakings" means customary representations,
warranties and covenants (including those relating to servicing) and entered
into in the ordinary course of business in connection with a Qualified
Securitization Transaction.
A "subsidiary" means, with respect to any person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of capital stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
person or one or more of the other subsidiaries of that person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or managing
general partner of which is such person or a subsidiary of such person or (b)
the only general partners of which are such person or of one or more
subsidiaries of such person (or any combination thereof).
"Termination of Trading" will be deemed to have occurred if the Common
Stock (or other common stock into which the Exchangeable Notes are then
exchangeable) is neither listed for trading on a U.S. national securities
exchange or approved for trading on the NASDAQ Stock National Market.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-
77bbbb) as in effect on the date of execution of this Indenture, except as
provided in Sections 9.3 and 12.6.
"Trading Day" shall mean (x) if the applicable security is listed or
admitted for trading on the
New York Stock Exchange or another national
securities exchange, a day on which the
New York Stock Exchange or such other
national securities exchange is open for business or (y) if the
7
applicable security is quoted on the Nasdaq National Market, a day on which
trades may be made thereon or (z) if the applicable security is not so listed,
admitted for trading or quoted, any day other than a Saturday or Sunday or a day
on which banking institutions in the State of
New York are authorized or
obligated by law or executive order to close.
"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.
"Trust Officer" means, when used with respect to the Trustee, any officer
within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"U.S. Government Obligations" means direct obligations of the United States
of America for the payment of which the full faith and credit of the United
States of America is pledged. In order to have money available on a payment date
to pay principal or interest on the Exchangeable Notes, the U.S. Government
Obligations shall be payable as to principal or interest on or before such
payment date in such amounts as will provide the necessary money. U.S.
Government Obligations shall not be callable at the issuer's option.
"Voting Stock" of a corporation means all classes of Capital Stock of such
corporation then outstanding and normally entitled to vote in the election of
directors.
SECTION 1.2 Other Definitions.
Defined in Section
"Bankruptcy Law" 6.1
"business day" 11.7
"closing price" 12.5
"Exchange Agent" 2.3
"Exchange Date" 12.2
"Current Market Price" 12.5
"Custodian" 6.1
"Fundamental Change Date" 4.6
"Fundamental Change Offer" 4.6
"Fundamental Change Payment" 4.6
"Fundamental Change Payment Date" 4.6
"Event of Default" 6.1
"Expiration Time" 12.5
"fair market value" 12.5
"Legal Holiday" 11.7
"non-electing share" 12.5
"Paying Agent" 2.3
"Purchased Shares" 12.5
8
"Record Date" 12.5
"Redemption Date" 3.1
"Redemption Price" 3.1
"Registrar" 2.3
"Register" 2.3
"Securities" 12.5
"Trigger Event" 12.5
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the Commission;
"indenture securities" means the Exchangeable Notes;
"indenture security holder" means a holder of an Exchangeable
Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Exchangeable Notes means the Company or any
other obligor on the Exchangeable Notes.
All other terms in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
SECTION 1.4 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) the male, female and neuter genders include one another.
9
ARTICLE 2
THE EXCHANGEABLE NOTES
SECTION 2.1 Form and Dating.
(a) GLOBAL SECURITIES. The Exchangeable Notes are being offered and sold
by the Company pursuant to a Purchase Agreement relating to the Exchangeable
Notes, dated March 25, 2002, among the Company, Navistar and the Initial
Purchasers (the "Purchase Agreement").
The Exchangeable Notes are being offered and sold (i) in reliance on
Regulation S under the Securities Act ("Regulation S") or (ii) to "qualified
institutional buyers" as defined in Rule 144A ("QIBs") in reliance on Rule 144A
under the Securities Act ("Rule 144A"), each as provided in the Purchase
Agreement, and shall be issued in the form of one or more permanent global
securities in definitive, fully registered form without interest coupons with
the Global Securities Legend and Restricted Securities Legend set forth in
Exhibit A hereto (each, a "Global Security"). Any Global Security shall be
deposited on behalf of the purchasers of the Exchangeable Notes represented
thereby with the Trustee, as custodian for the Depositary, and registered in the
name of the Depositary or a nominee of the Depositary for the accounts of
participants in the Depositary (and, in the case of Exchangeable Notes held in
accordance with Regulation S, registered with the Depositary for the accounts of
designated agents holding on behalf of the Euroclear System ("Euroclear") or
Clearstream Banking, societe anonyme ("Clearstream")), duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of a Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee as hereinafter provided.
(b) BOOK-ENTRY PROVISIONS. This Section 2.1(b) shall apply only to a
Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with this
Section 2.1(b) and the written order of the Company, authenticate and deliver
initially one or more Global Securities that (i) shall be registered in the name
of Cede & Co. or other nominee of such Depositary and (ii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instructions or
held by the Trustee as custodian for the Depositary pursuant to a FAST Balance
Certificate Agreement between the Depositary and the Trustee.
Members of, or participants in, the Depositary ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary or by the Trustee as the custodian of the Depositary or
under such Global Security, and the Depositary may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices of such
Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
10
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations and Instructions to Participants" of Clearstream shall be applicable
to interests in any Global Securities that are held by participants through
Euroclear or Clearstream. The Trustee shall have no obligation to notify holders
of any such procedures or to monitor or enforce compliance with the same.
(c) DEFINITIVE SECURITIES. Except as provided in Section 2.10, owners of
beneficial interests in Global Securities will not be entitled to receive
physical delivery of certificated Exchangeable Notes in definitive form. If
applicable, certificated Exchangeable Notes in definitive form will bear the
Restricted Securities Legend set forth on Exhibit A unless removed in accordance
with Section 2.6(c).
SECTION 2.2 Execution and Authentication.
One Officer shall sign the Exchangeable Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on an Exchangeable Note no longer holds
that office at the time the Exchangeable Note is authenticated, the Exchangeable
Note shall nevertheless be valid.
An Exchangeable Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Exchangeable Note has been authenticated under this Indenture.
Upon a written order of the Company signed by an Officer of the Company,
the Trustee shall authenticate Exchangeable Notes for original issue in an
aggregate principal amount of $220,000,000 to the Initial Purchasers. The
aggregate principal amount of Exchangeable Notes outstanding at any time may not
exceed that amount except as provided in Section 2.7.
The Exchangeable Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 or any integral multiple thereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Exchangeable Notes. An authenticating agent may authenticate
Exchangeable 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 right as an Agent to deal with the
Company or an Affiliate of the Company.
SECTION 2.3 Registrar, Paying Agent and Exchange Agent.
The Company (and Navistar with respect to clause (iii)) shall maintain or
cause to be maintained in such locations as it shall determine, which may be the
Corporate Trust Office, an office or agency: (i) where Exchangeable Notes may be
presented for registration of transfer or for exchange into other Exchangeable
Notes("Registrar"); (ii) where Exchangeable Notes may be presented for payment
("Paying Agent"); (iii) where Exchangeable Notes may be presented for exchange
into Common Stock (the "Exchange Agent"); and (iv) where notices and demands to
or upon the Company in respect of Exchangeable Notes and this Indenture may be
served by
11
the holders of the Exchangeable Notes. The Registrar shall keep a register
("Register") of the Exchangeable Note and of their transfer and exchange. The
Company may appoint one or more co-registrars, one or more additional paying
agents and one or more additional exchange agents. The term "Paying Agent"
includes any additional paying agent, and the term "Exchange Agent" includes any
additional Exchange Agent. The Company may change any Paying Agent, Registrar,
Exchange Agent or co-registrar without prior notice. The Company shall notify
the Trustee of the name and address of any Agent not a party to this Indenture
and shall enter into an appropriate agency agreement with any Registrar, Paying
Agent, Exchange Agent or co-registrar not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company or any of its subsidiaries may act as Paying Agent,
Registrar, Exchange Agent or co-registrar, except that for purposes of Article 8
and Section 4.6, neither the Company nor any of its subsidiaries shall act as
Paying Agent. If the Company fails to appoint or maintain another entity as
Registrar, or Paying Agent or Exchange Agent, the Trustee shall act as such, and
the Trustee shall initially act as such.
SECTION 2.4 Paying Agent To Hold Money in Trust.
The Company shall require each Paying Agent (other than the Trustee, who
hereby so agrees), to agree in writing that the Paying Agent will hold in trust
for the benefit of holders of the Exchangeable Notes or the Trustee all money
held by the Paying Agent for the payment of principal or interest (including
Liquidated Damages) on the Exchangeable Notes, and will notify the Trustee of
any default by the Company in respect of making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a subsidiary of the Company) shall
have no further liability for the money. If the Company or a subsidiary of the
Company acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the holders of the Exchangeable Notes all money held by
it as Paying Agent. Upon written request from the Company to return unclaimed
funds to the Company, the Trustee shall from time to time deliver all unclaimed
funds held by it for two years in any capacity hereunder or as directed by
applicable escheat authorities. Any unclaimed funds held by the Trustee in any
capacity hereunder pursuant to this Section 2.4 shall be held uninvested and
without any liability for interest.
SECTION 2.5 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
holders of Exchangeable Notes 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 as
the Trustee may request in writing within fifteen (15) days after receipt by the
Company of any such request (or such lesser time as the Trustee may reasonably
request in order to enable it to timely provide any notice to be provided by it
hereunder), a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of holders of Exchangeable Notes.
12
SECTION 2.6 Transfer and Exchange.
(a) When Exchangeable Notes are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal principal amount of Exchangeable Notes for other denominations, the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfers and
exchanges, the Company shall issue, and the Trustee shall authenticate,
Exchangeable Notes at the Registrar's request, bearing registration numbers not
contemporaneously outstanding. No service charge shall be made to a holder for
any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company and the Registrar may require payment of a
sum sufficient to cover any transfer tax or other governmental charge payable
upon exchanges pursuant to Sections 2.7, 9.5 or 12.2.
The Company or the Registrar shall not be required to register the transfer
of any Exchangeable Notes surrendered for repurchase pursuant to Section 4.6.
All Exchangeable Notes issued upon any transfer or exchange of Exchangeable
Notes in accordance with this Indenture shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture as the Exchangeable Notes surrendered upon such registration of
transfer or exchange.
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, or of any
beneficial interest therein, shall only be made in accordance with Sections
2.1(b) and 2.10; provided, however, that beneficial interests in a Global
Security may be transferred to persons who take delivery thereof in the form of
a beneficial interest in the Global Security in accordance with the transfer
restrictions set forth under the heading "Notice to Investors" in the Offering
Memorandum and, if applicable, in the Restricted Securities Legend.
Except for transfers or exchanges made in accordance with Section 2.10,
transfers of a Global Security shall be limited to transfers of such Global
Security in whole, but not in part, to nominees of the Depositary or to a
successor of the Depositary or such successor's nominee.
In the event that a Global Security is exchanged for Exchangeable Notes in
definitive form pursuant to Section 2.10 prior to the effectiveness of a Shelf
Registration Statement with respect to such Exchangeable Notes, such exchange
may occur, and such Exchangeable Notes may be further exchanged or transferred,
only upon receipt by the Registrar of (1) such Global Security or such
Exchangeable Notes in definitive form, duly endorsed as provided herein, as
applicable, (2) instructions from the holder directing the Trustee to
authenticate and deliver one or more Exchangeable Notes in definitive form of
the same aggregate principal amount as the Global Security or the Exchangeable
Notes in definitive form (or portion thereof), as applicable, to be transferred,
such instructions to contain the name or names of the designated transferee or
transferees, the authorized denomination or denominations of the Exchangeable
Notes in definitive form to be so issued and appropriate delivery instructions,
and (3) such certifications or other information and, in the case of transfers
pursuant to Rule 144 under the Securities Act, legal opinions as the Company 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
13
requirements of the Securities Act (including the certification requirements
intended to ensure that such transfers comply with Rule 144A or Regulation S
under the Securities Act, as the case may be), and upon compliance with such
other procedures as may from time to time be adopted by the Company and the
Registrar.
(c) Except in connection with a Shelf Registration Statement contemplated
by and in accordance with the terms of the Registration Agreement, if
Exchangeable Notes are issued upon the registration of transfer, exchange or
replacement of Exchangeable Notes bearing a Restricted Securities Legend, or if
a request is made to remove such a Restrictive Securities Legend on Exchangeable
Notes, the Exchangeable Notes so issued shall bear the Restricted Securities
Legend, or a Restricted Securities Legend shall not be removed, as the case may
be, unless there is delivered to the Company such satisfactory evidence, which,
in the case of a transfer made pursuant to Rule 144 under the Securities Act,
may include an opinion of counsel given in accordance with the laws in the State
of
New York, as may be reasonably required by the Company, that neither the
legend nor the restrictions on transfer set forth therein are required to ensure
that transfers thereof comply with the provisions of Rule 144A, Rule 144 or
Regulation S under the Securities Act or that such Exchangeable Notes are not
"restricted" within the meaning of Rule 144 under the Securities Act. Upon
provision to the Company of such satisfactory evidence, the Trustee, at the
written direction of the Company, shall authenticate and deliver Exchangeable
Notes that do not bear the legend. The Company shall not otherwise be entitled
to require the delivery of a legal opinion in connection with any transfer or
exchange of Securities.
(d) Neither the Trustee nor any Agent shall have any responsibility for
any actions taken or not taken by the Depositary.
(e) The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Exchangeable Notes (including any transfers between or among the
Depositary's participants or beneficial owners of interests in any Global
Security) other than to require delivery of such certificates and other
documentation as is expressly required by, and to do so if and when expressly
required by, the terms of this Indenture and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 2.7 Replacement Exchangeable Notes.
If the holder of an Exchangeable Note claims that its Exchangeable Note has
been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Exchangeable Note if the Trustee's and
the Company's requirements are met. If required by the Trustee or the Company as
a condition of receiving a replacement Exchangeable Note, the holder of an
Exchangeable Note must provide a certificate of loss and an indemnity bond
sufficient, in the judgment of both the Company and the Trustee, to fully
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss, liability, cost or expense which any of them may suffer or incur if
the Exchangeable Note is replaced. The Company and the Trustee may charge the
relevant holder for their expenses in replacing any Exchangeable Note.
14
The Trustee or any authenticating agent may authenticate any such
substituted Exchangeable Note and deliver the same upon the receipt of such
security or indemnity as the Trustee, the Company and, if applicable, such
authenticating agent may require. Upon the issuance of any substituted
Exchangeable Note, the Company and the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses connected therewith. In case any
Exchangeable Note, which has matured or is about to mature, or which has been
submitted for repurchase pursuant to Section 4.6 or is about to be exchanged
into Common Stock pursuant to Article 12, shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Exchangeable Note, pay or authorize the payment of or exchange or authorize the
exchange of the same (without surrender thereof except in the case of a
mutilated Exchangeable Note), as the case may be, if the applicant for such
payment or exchange shall furnish to the Company, to the Trustee and, if
applicable, to the authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or
expense caused by or connected with such substitution, and, in case of
destruction, loss or theft, evidence satisfactory to the Company, the Trustee
and, if applicable, any paying agent or exchange agent of the destruction, loss
or theft of such Exchangeable Note and of the ownership thereof.
Every replacement Exchangeable Note is an additional obligation of the
Company and shall be entitled to all the benefits provided under this Indenture
equally and proportionately with all other Exchangeable Notes duly issued,
authenticated and delivered hereunder.
SECTION 2.8 Outstanding Exchangeable Notes.
The Exchangeable Notes outstanding at any time are all the Exchangeable
Notes properly authenticated by the Trustee except for those canceled by the
Trustee, those delivered to it for cancellation, and those described in this
Section as not outstanding.
If an Exchangeable Note is replaced pursuant to Section 2.7, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Exchangeable Note is held by a bona fide purchaser.
If Exchangeable Notes are considered paid under Section 4.1 or exchanged
under Article 12, they cease to be outstanding, and interest (and Liquidated
Damages, if any) on them ceases to accrue.
Subject to Section 2.9 hereof, an Exchangeable Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Exchangeable Note.
SECTION 2.9 When Exchangeable Notes Owned by the Company or an Affiliate
are Disregarded.
In determining whether the holders of the required principal amount of
Exchangeable Notes have concurred in any direction, waiver or consent,
Exchangeable Notes owned by the Company or an Affiliate of the Company shall be
considered as though they are not outstanding except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Exchangeable Notes which a Trust Officer of
the Trustee actually knows are so owned shall be so disregarded.
15
SECTION 2.10 Temporary Exchangeable Notes.
(a) Until definitive Exchangeable Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Exchangeable
Notes. Temporary Exchangeable Notes shall be substantially in the form of
definitive Exchangeable Notes but may have variations that the Company considers
appropriate for temporary Exchangeable Notes and shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Exchangeable Notes in exchange for
temporary Exchangeable Notes.
(b) A Global Security deposited with the Depositary or with the Trustee
as custodian for the Depositary pursuant to Section 2.1 shall be transferred to
the beneficial owners thereof in the form of certificated Exchangeable Notes in
definitive form only if such transfer complies with Section 2.6 and (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time such Depositary ceases to
be a "clearing agency" registered under the Exchange Act and a successor
Depositary is not appointed by the Company within 90 days of such notice, or
(ii) an Event of Default has occurred and is continuing.
(c) Any Global Security or interest therein that is transferable to the
beneficial owners thereof in the form of certificated Exchangeable Notes in
definitive form shall, if held by the Depository, be surrendered by the
Depositary to the Trustee, without charge, and the Trustee shall authenticate
and deliver, upon such transfer of each portion of such Global Security, an
equal aggregate principal amount of Exchangeable Notes of authorized
denominations in the form of certificated Exchangeable Notes in definitive form.
Any portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any Exchangeable Notes in the form of certificated Exchangeable Notes in
definitive form delivered in exchange for an interest in the Global Security
shall, except as otherwise provided by Section 2.6(c), bear the Restricted
Securities Legend set forth in Exhibit A hereto.
(d) Prior to any transfer pursuant to Section 2.10(b), the registered
holder of a Global Security may grant proxies and otherwise authorize any
person, including Agent Members and persons that may hold interests through
Agent Members, to take any action which a holder is entitled to take under this
Indenture or the Exchangeable Notes.
SECTION 2.11 Cancellation.
The Company at any time may deliver Exchangeable Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Exchangeable Notes surrendered to them for registration of transfer, exchange
for other Exchangeable Notes, payment, replacement, repurchase or cancellation.
The Trustee and no one else may cancel Exchangeable Notes surrendered for
registration of transfer, exchange for other Exchangeable Notes, payment,
replacement, repurchase or cancellation. The Trustee shall dispose of canceled
Exchangeable Notes in accordance with its then customary procedures, unless the
Company shall request in writing that such cancelled Exchangeable Notes be
delivered to it. The Company may
16
not issue new Exchangeable Notes to replace Exchangeable Notes that it has paid
or repurchased or that have been delivered to the Trustee for cancellation or
that any holder has (i) exchanged pursuant to Article 12 hereof or (ii)
submitted for repurchase pursuant to Section 4.6 hereof (unless revoked).
SECTION 2.12 Defaulted Interest.
If the Company fails to make a payment of interest on the Exchangeable
Notes, it shall pay such defaulted interest plus, to the extent lawful, any
interest payable on the defaulted interest. It may pay such defaulted interest,
plus any such interest payable on it, to the persons who are holders of
Exchangeable Notes on a subsequent special record date. The Company shall fix
any such record date and payment date. At least 15 days before any such record
date, the Company shall mail to holders of the Exchangeable Notes a notice that
states the record date, payment date and amount of such interest to be paid.
SECTION 2.13 CUSIP Number.
The Company in issuing the Exchangeable Notes may use a "CUSIP" number, and
if so, such CUSIP number shall be included in notices of repurchase as a
convenience to holders of Exchangeable Notes; PROVIDED, HOWEVER, that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Exchangeable Notes
and that reliance may be placed only on the other identification numbers printed
on the Exchangeable Notes; and PROVIDED FURTHER that neither the Trustee nor any
Registrar shall have any liability as to the correctness or accuracy of any
CUSIP number so printed in the notice. The Company will promptly notify the
Trustee of any change in the CUSIP number.
SECTION 2.14 Regulation S.
The Company agrees that it will refuse to register any transfer of
Exchangeable Notes or any shares of Common Stock issued upon exchange of
Exchangeable Notes that is not made in accordance with the provisions of
Regulation S under the Securities Act, pursuant to a registration statement
which has been declared effective under the Securities Act or pursuant to an
available exemption from the registration requirements of the Securities Act;
provided that the provisions of this paragraph shall not be applicable to any
Exchangeable Notes which do not bear a Restricted Securities Legend or to any
shares of Common Stock evidenced by certificates which do not bear a Restricted
Common Stock Legend.
ARTICLE 3
REDEMPTION
SECTION 3.1 Optional Redemption Prices.
The Exchangeable Notes are not redeemable before April 1, 2005. At any time
or from time to time on or after April 1, 2005 (any such date being a
"Redemption Date"), the Company may redeem some or all of the Exchangeable Notes
at prices set forth below (expressed as percentages of principal amount (the
"Redemption Price")) plus accrued and unpaid interest and
17
Liquidated Damages, if any (if the Redemption Date is also an Interest Payment
Date, accrued interest and Liquidated Damages, if any, will be paid to the
holder of record on the preceding Record Date rather than included in the
Redemption Price), on the notes redeemed, to (but excluding) the applicable
redemption date, if redeemed during the twelve-month period beginning on April 1
of the following years:
Year Redemption Price
---- ----------------
2005 102.036%
2006 101.357%
2007 100.679%
2008 and thereafter 100.000%
SECTION 3.2 Notices to Trustee.
If the Company elects to redeem the Exchangeable Notes pursuant to the
provisions of Section 3.1 hereof, it shall furnish to the Trustee, at least 30
days but not more than 60 days before the Redemption Date, an Officers'
Certificate setting forth the Section of this Indenture pursuant to which the
redemption shall occur, the Redemption Date, the principal amount of the
Exchangeable Notes to be redeemed and the Redemption Price.
If the Registrar is not the Trustee, the Company shall, concurrently with
each notice of redemption or repurchase, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may conclusively rely) setting
forth the principal amounts of the Exchangeable Notes held by each Holder.
SECTION 3.3 Selection by Trustee of Exchangeable Notes to be Redeemed.
If less than all of the Exchangeable Notes are to be redeemed, the Trustee
shall select the Exchangeable Notes or portions thereof to be redeemed in
compliance with the requirements of the principal national securities exchange,
if any, on which the Exchangeable Notes are listed or, if the Exchangeable Notes
are not listed on a national securities exchange, by lot, pro rata or by such
other method as the Trustee shall deem fair and reasonable. In the event of
partial redemption by lot, the particular Exchangeable Notes or portions thereof
to be redeemed shall be selected, unless otherwise provided herein, not less
than 35 nor more than 60 days prior to the Redemption Date by the Trustee from
the outstanding Exchangeable Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Exchangeable Notes or portions thereof selected for redemption and, in the case
of any Note selected for partial redemption, the principal amount thereof to be
redeemed. Exchangeable Notes and portions thereof selected shall be in amounts
of $1,000 or integral multiples of $1,000; except that if all of the
Exchangeable Notes of a Holder are to be redeemed, the entire outstanding amount
of Exchangeable Notes held by such Holder, even if not a multiple of $1,000,
shall be redeemed.
SECTION 3.4 Notice of Redemption.
In the event the Exchangeable Notes are to be redeemed pursuant to Section
3.1 hereof, at least 30 days but not more than 60 days before the Redemption
Date, the Trustee shall mail a
18
notice of redemption to each Holder whose Exchangeable Notes are to be redeemed
in whole or in part.
The notice shall identify the Exchangeable Notes or portions thereof
(including (CUSIP number(s)) to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, upon surrender of such Note, a new Exchangeable Note or Exchangeable Notes
in principal amount equal to the unredeemed portion will be issued;
(d) the name and address of the Paying Agent;
(e) that the Exchangeable Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price, Liquidated
Damages, if any, and, unless the Redemption Date is after a record date and or
before the succeeding interest payment date, accrued interest thereon to the
Redemption Date;
(f) that, unless the Company defaults in making the redemption
payment, interest and any Liquidated Damages on the Exchangeable Notes called
for redemption will cease to accrue on and after the Redemption Date, and the
only remaining right of the Holders of such Exchangeable Notes is to receive
payment of the Redemption Price, any Liquidated Damages and, unless the
Redemption Date is after a record date and on or before the succeeding interest
payment date, accrued interest thereon to the Redemption Date upon surrender to
the Paying Agent of the Exchangeable Notes redeemed;
(g) that in the case of a Redemption Date that is also an
Interest Payment Date, the interest payment and Liquidated Damages, if any, due
on such date shall be paid to the person in whose name the Exchangeable Note is
registered at the close of business on the Record Date immediately preceding
such Interest Payment Date;
(h) if fewer than all the Exchangeable Notes are to be redeemed,
the identification of the particular Exchangeable Notes (or portions thereof) to
redeemed, as well as the aggregate principal amount of the Exchangeable Notes to
be redeemed and the aggregate principal amount of the Exchangeable Notes to be
outstanding after such partial redemption; and
(i) the paragraph of the Exchangeable Notes pursuant to which the
Exchangeable Notes called for redemption are being redeemed.
The Company shall deliver to the Trustee, at least 40 days prior to
the Redemption Date, an Officers' Certificate setting forth the information to
be stated in such notice as provided in the preceding paragraph.
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SECTION 3.5 Effect of Notice of Redemption.
Once notice of redemption is mailed, Exchangeable Notes or portions thereof
called for redemption become due and payable on the Redemption Date at the
Redemption Price. Upon surrender to any Paying Agent, such Exchangeable Notes or
portions thereof shall be paid at the Redemption Price, plus Liquidated Damages,
if any, and accrued interest to the Redemption Date.
Notwithstanding any other provision of this Indenture to the contrary, if
the Redemption Date is on or after the Record Date but prior to the related
Interest Payment Date, no payment of interest will be made to the holder of
record on the Interest Payment Date with respect to any Note redeemed but rather
will be included in the Redemption Price as described above.
SECTION 3.6 Deposit of Redemption Price.
On or before 10 a.m.,
New York City time, each Redemption Date, the Company
shall irrevocably deposit with the Trustee or with the Paying Agent money
sufficient to pay the aggregate amount due on all Exchangeable Notes to be
redeemed on that date, including without limitation any accrued and unpaid
interest and Liquidated Damages, if any, to the Redemption Date. Upon written
request by the Company, the Trustee or the Paying Agent shall promptly return to
the Company any money not required for that purpose.
Unless the Company defaults in making such payment, interest and any
Liquidated Damages on the Exchangeable Notes to be redeemed will cease to accrue
on the applicable Redemption Date, whether or not such Exchangeable Notes are
presented for payment. If any Note called for redemption shall not be so paid
upon surrender because of the failure of the Company to comply with the
preceding paragraph, interest will be paid on the unpaid principal, from the
applicable Redemption Date until such principal is paid, and on any interest not
paid on such unpaid principal, in each case at the rate provided in the
Exchangeable Notes and in Section 4.1 hereof.
SECTION 3.7 Securities Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder at the expense of the Company
a new Note equal in principal amount to portion of the Note surrendered that is
not to be redeemed or repurchased.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Exchangeable Notes.
The Company shall pay the principal of and interest (including Liquidated
Damages payable by it, if any, and Navistar will pay Liquidated Damages payable
by it, if any) on the Exchangeable Notes on the dates and in the manner provided
in the Exchangeable Notes. Principal, interest and the Fundamental Change
Payment shall be considered paid on the date due if the Trustee or Paying Agent
(other than the Company or a subsidiary of the Company) holds
20
as of 10:00 a.m.,
New York City time, on that date immediately available funds
designated for and sufficient to pay all principal, interest (including
Liquidated Damages) or the Fundamental Change Payment then due. To the extent
lawful, the Company shall pay interest (including post- petition interest in any
proceeding under any Bankruptcy Law) on (i) overdue principal, at the rate borne
by Exchangeable Notes, compounded semiannually; and (ii) overdue installments of
interest (without regard to any applicable grace period) at the same rate,
compounded semiannually.
Notwithstanding any other provision of this Indenture, it shall solely be
the obligation of Navistar to pay the portion of the Liquidated Damages payable
by it and the Company shall have no obligation to pay and no liability for the
nonpayment of such amounts, and in the event the Company shall pay any such
amounts, Navistar shall be obligated to repay the Company for such payments.
SECTION 4.2 Rule 144A Information; Periodic Reports to the Trustee.
So long as any of the Exchangeable Notes or shares of Common Stock issuable
upon exchange of the Exchangeable Notes are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, each of the Company and
Navistar will, during any period in which it is not subject to and in compliance
with Section 13 or Section 15(d) of the Exchange Act, provide to each holder and
beneficial owner of such restricted securities and to each prospective purchaser
(as designated by such holder or beneficial owner) of such restricted
securities, upon the request of such holder or beneficial owner or prospective
purchaser, any information required to be provided by Rule 144A(d)(4) under the
Securities Act.
The Company shall provide to the Trustee such documents, reports and
information as required by TIA Section 314 (if any) in the form, in the manner
and at the times required by TIA Section 314. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.3 Compliance Certificate.
The Company and Navistar each shall deliver to the Trustee within 120 days
after the end of its respective fiscal year, an Officers' Certificate stating
that neither of the signers thereof has any knowledge, after due investigation
during the preceding fiscal year made under the supervision of the signing
officers, of any Default or Event of Default (or, if any Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge). As of the date hereof, the fiscal year
of each of the Company and Navistar ends on October 31.
The Company shall, so long as any of the Exchangeable Notes are
outstanding, deliver to the Trustee, forthwith upon 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.
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SECTION 4.4 Maintenance of Office or Agency.
The Company shall maintain or cause to be maintained the office or agency
required under Section 2.3. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency not maintained by the Trustee. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, presentations, surrenders, notices and demands with
respect to the Exchangeable Notes may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Exchangeable Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designation.
SECTION 4.5 Continued Existence.
Subject to Article 5, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
SECTION 4.6 Repurchase Upon Fundamental Change.
Following a Fundamental Change (the date of each such occurrence being the
"Fundamental Change Date") prior to the Maturity Date, the Company shall notify
the Trustee, and the Trustee shall notify holders of Exchangeable Notes in
writing, of such occurrence and shall make an offer (the "Fundamental Change
Offer") to repurchase all Exchangeable Notes then outstanding at a repurchase
price in cash (the "Fundamental Change Payment") equal to 100% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any
(if the Fundamental Change Payment Date is also an Interest Payment Date,
accrued and unpaid interest and Liquidated Damages, if any, will be paid to the
holder of record of the Note on the Record Date rather than included in the
Fundamental Change Payment), to, but excluding, the Fundamental Change Payment
Date (as defined below).
Notice of a Fundamental Change shall be mailed by the Trustee to the
holders of Exchangeable Notes as shown on the Register and to beneficial owners
as required by law not more than 30 days after the applicable Fundamental Change
Date at the addresses as shown on the Register of holders maintained by the
Registrar, with a copy to the Paying Agent. During the period specified in such
notice, holders of Exchangeable Notes may elect to tender their Exchangeable
Notes in whole or in part in integral multiples of $1,000 in exchange for cash.
Payment shall be made by the Company in respect of Exchangeable Notes properly
tendered pursuant to this Section on or before the day (the "Fundamental Change
Payment Date") which shall be the sixtieth day after the date of the notice of
the applicable Fundamental Change.
The notice, which shall govern the terms of the Fundamental Change Offer,
shall include such disclosures as are required by law and shall state:
(a) that a Fundamental Change Offer is being made pursuant to this
Section 4.6 and that all Exchangeable Notes will be accepted for payment;
22
(b) a brief description of the event, transaction or transactions that
constitute the Fundamental Change;
(c) the Fundamental Change Payment for each Exchangeable Note and the
Fundamental Change Payment Date;
(d) that any Exchangeable Note not accepted for payment will continue to
accrue interest and Liquidated Damages, if applicable, in accordance with the
terms thereof;
(e) that, unless the Company defaults on making the Fundamental Change
Payment, any Exchangeable Note accepted for payment pursuant to the Fundamental
Change Offer shall cease to accrue interest and Liquidated Damages, if
applicable, on the Fundamental Change Payment Date and no further interest or
Liquidated Damages shall accrue on or after such date;
(f) that holders electing to have Exchangeable Notes repurchased pursuant
to a Fundamental Change Offer will be required to deliver, no later than the
sixtieth day after the date of the notice described in this paragraph, a
repurchase notice electing to require the Company to repurchase all or some
portion of the Exchangeable Notes held by such holder, which notice shall state
(i) the name of the holder, (ii) the principal amount of Exchangeable Notes the
holder is delivering for purchase which must be $1,000 or an integral multiple
thereof and (iii) the Exchangeable Note certificate number (if any);
(g) that holders of Exchangeable Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m.,
New York City
time, on the Fundamental Change Payment Date, a facsimile transmission or letter
setting forth (i) the name of the holder, (ii) the principal amount of
Exchangeable Notes the holder delivered for purchase, (iii) the Exchangeable
Note certificate number (if any) delivered, (iv) a statement that such holder is
withdrawing his election to have such Exchangeable Notes purchased, (v) the
principal amount of Exchangeable Notes being withdrawn, (vi) the Exchangeable
Note certificate number (if any) being withdrawn and (vii) the principal amount
of Exchangeable Notes that remains subject to the Fundamental Change Offer, if
any;
(h) that holders whose Exchangeable Notes are repurchased only in part
will be issued Exchangeable Notes equal in principal amount to the unpurchased
portion of the Exchangeable Notes surrendered provided that the unpurchased
portion shall be in an authorized denomination;
(i) the instructions that holders must follow in order to tender their
Exchangeable Notes; and
(j) that in the case of a Fundamental Change Payment Date that is also an
Interest Payment Date, the interest payment and Liquidated Damages, if any, due
on such date shall be paid to the person in whose name the Exchangeable Note is
registered at the close of business on the Record Date immediately preceding
such Interest Payment Date.
Notwithstanding any other provision of this Indenture to the contrary, if
the Fundamental Change Payment Date is on or after the Record Date but prior to
the related Interest Payment Date, no payment of interest will be made to the
holder of record on the Interest Payment Date
23
with respect to any Note redeemed but rather will be included in the Fundamental
Change Payment as described above.
On the Fundamental Change Payment Date, the Company shall accept for
payment all Exchangeable Notes or portions thereof properly tendered pursuant to
the Fundamental Change Offer. Prior to 10:00 a.m. (local time in The City of
New
York) on the business day following the Fundamental Change Payment Date, the
Company shall deposit with the Paying Agent money sufficient to pay the
Fundamental Change Payment with respect to all Exchangeable Notes or portions
thereof so tendered and accepted and deliver or cause to be delivered to the
Trustee the Exchangeable Notes so accepted together with an Officers'
Certificate setting forth the aggregate principal amount of Exchangeable Notes
or portions thereof tendered to and accepted for payment by the Company.
Promptly following the Fundamental Change Payment Date, the Paying Agent shall
mail or deliver the Fundamental Change Payment to the holders of Exchangeable
Notes so accepted and the Trustee shall as soon as reasonably practicable
authenticate and mail or cause to be transferred by book entry to such holders a
new Exchangeable Note equal in principal amount to any unpurchased portion of
the Exchangeable Note surrendered, if any; provided that such new Exchangeable
Notes will be in a principal amount of $1,000 or an integral multiple thereof.
Any Exchangeable Notes not so accepted shall be promptly mailed or delivered by
the Company to the holder thereof.
In the case of any reclassification, change, consolidation, merger, share
exchange, combination or sale or conveyance to which Section 12.6 applies in
which the Common Stock of Navistar is changed or exchanged into the right to
receive stock, securities or other property or assets (including cash) which
includes shares of common stock of Navistar or another person that are, or upon
issuance will be, traded on a United States national securities exchange or
approved for trading on an established automated over- the-counter trading
market in the United States and such shares constitute at the time such change
or exchange becomes effective in excess of 90% of the aggregate fair market
value of such stock, securities or other property and assets (including cash)
(as determined by the Company, which determination shall be conclusive and
binding), then the person formed by such consolidation or resulting from such
merger or share exchange or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture (which shall
comply with the TIA as in force at the date of execution of such supplemental
indenture) modifying the provisions of this Indenture relating to the right of
holders of Exchangeable Notes to cause the Company to repurchase Exchangeable
Notes following a Fundamental Change, including the applicable provisions of
this Section 4.6 and the definitions of Fundamental Change, Change of Control
and Termination of Trading, as appropriate, as determined in good faith by the
Company (which determination shall be conclusive and binding), to make such
provision apply to such common stock and the issuer thereof if different from
Navistar and Common Stock of Navistar (in lieu of Navistar and the Common Stock
of Navistar).
There shall be no purchase of any Exchangeable Notes pursuant to this
Section 4.6 if there has occurred (prior to, on or after, as the case may be,
the giving, by the holders of such Exchangeable Notes, of the required
Fundamental Change repurchase notice) and is continuing, an Event of Default
(other than a default in the payment of the Fundamental Change Payment with
respect to such Exchangeable Notes). The Paying Agent will promptly return to
the respective holders any Exchangeable Notes (x) with respect to which a
Fundamental Change
24
repurchase notice has been withdrawn in compliance with this Indenture or (y)
held by it during the continuance of an Event of Default (other than a default
in the payment of the Fundamental Change Payment with respect to such
Exchangeable Notes) in which case upon such return the Fundamental Change
repurchase notice with respect thereto shall be deemed to have been withdrawn.
The Fundamental Change Offer shall be made by the Company in compliance
with all applicable provisions of the Exchange Act, and all applicable tender
offer rules promulgated thereunder, to the extent such laws and regulations are
then applicable and shall include all instructions and materials that the
Company shall reasonably deem necessary to enable such holders of Exchangeable
Notes to tender their Exchangeable Notes.
SECTION 4.7 Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.8, a Trustee, so that
there shall at all times be a Trustee hereunder.
SECTION 4.8 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 enforced, that may affect the Company's
obligation to pay the Exchangeable Notes; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such
law insofar as such law applies to the Exchangeable Notes, 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 will suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.9 Taxes.
The Company shall, and shall cause each of its subsidiaries to, pay prior
to delinquency all taxes, assessments and government levies; provided, however,
that the Company shall not be required to pay or cause to be paid any such tax,
assessment or levy (A) if the failure to do so will not, in the aggregate, have
a material adverse impact on the Company and its subsidiaries taken as a whole,
or (B) if the amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 4.10 Investment Company Act.
As long as any Exchangeable Notes are outstanding, the Company will conduct
its business and operations so as not to become an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and will take all steps required in order for it to continue not
to be an "investment company" and not to be required to be registered under the
Investment Company Act, including, if necessary, redeployment of the assets of
the Company.
25
ARTICLE 5
SUCCESSORS
SECTION 5.1 When the Company and Navistar May Merge, Etc.
Neither the Company nor Navistar shall, in a single transaction or series
of related transactions, consolidate or merge with or into, or effect a share
exchange with (whether or not it is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets as an entirety or substantially as an entirety to, any
person or entity (other than to one or more direct or indirect wholly-owned
subsidiaries or, in the case of Navistar, in a Permitted Joint Venture, or, in
the case of the Company, other than receivables and related assets or interests
therein in connection with a Qualified Securitization Transaction) unless:
(a) either
(i) it shall be the surviving or continuing corporation or
(ii) the entity or person (or its parent) formed by or surviving any
such consolidation or share exchange or into which the Company or Navistar is
merged (if other than the Company or Navistar) or the entity or person (or its
parent) which acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of the Company as an entirety or
substantially as an entirety
(1) 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
(2) shall expressly assume, by supplemental indenture in form
reasonably satisfactory to the Trustee, executed and delivered to the Trustee,
the due and punctual payment of the principal of, and interest and Liquidated
Damages, if any, on, all of the Exchangeable Notes and the performance of every
covenant of the Exchangeable Notes and this Indenture and the Registration
Agreement on the part of the Company to be performed or observed, including,
without limitation, modifications to rights of holders to cause the repurchase
of Exchangeable Notes upon a Fundamental Change in accordance with the
penultimate paragraph of Section 4.6 and exchange rights in accordance with
Section 12.6 to the extent required by such Sections;
(b) immediately after giving effect to such transaction no Default and no
Event of Default shall have occurred and be continuing; and
(c) it or such person shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger, share exchange, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, comply with this provision of this Indenture and that all conditions
precedent in this Indenture relating to such transaction have been satisfied.
For purposes of this Section 5.1, 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
26
one or more subsidiaries of the Company or Navistar, the capital stock of which
constitutes all or substantially all of the properties and assets of the Company
or Navistar, shall be deemed to be the transfer of all or substantially all of
the properties and assets of the Company or Navistar.
SECTION 5.2 Successor Corporation Substituted.
Upon any such consolidation, merger, share exchange, sale, assignment,
conveyance, lease, transfer or other disposition in accordance with Section 5.1,
the successor person formed by such consolidation, or share exchange or into
which the Company or Navistar is merged or to which such assignment, conveyance,
lease, transfer or other disposition is made will succeed to, and be substituted
for, and may exercise every right and power of, the Company or Navistar under
this Indenture with the same effect as if such successor had been named as the
Company therein, and thereafter (except in the case of a sale, assignment,
transfer, lease, conveyance or other disposition) the predecessor corporation
will be relieved of all further obligations and covenants under this Indenture
and the Exchangeable Notes.
SECTION 5.3 Purchase Option on Fundamental Change.
This Article 5 does not affect the obligations of the Company (including
without limitation any successor to the Company) under Section 4.6.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default.
An "Event of Default" with respect to any Exchangeable Notes occurs if:
(a) the Company defaults in the payment of principal of the
Exchangeable Notes when due at maturity, upon repurchase, upon acceleration or
otherwise;
(b) the Company or Navistar defaults in the payment of any installment
of interest or Liquidated Damages on the Exchangeable Notes when due (including
any interest or Liquidated Damages payable in connection with a repurchase
pursuant to Section 4.6) and continuance of such default for 30 days or more; or
(c) the Company defaults (other than a default set forth in clauses
(a) and (b) above and clauses (d) and (e) below) in the performance of, or
breaches, any other covenant or warranty of the Company set forth in this
Indenture or the Exchangeable Notes and fails to remedy such default or breach
within a period of 60 days after the receipt of written notice from the Trustee
or the holders of at least 25% in aggregate principal amount of the then
outstanding Exchangeable Notes; or
(d) the Company defaults in the payment of the Fundamental Change
Payment in respect of the Exchangeable Notes on the date therefor; or
27
(e) the Company fails to provide timely notice of any Fundamental
Change in accordance with Section 4.6; or
(f) the Company, 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) makes a general assignment for the benefit of its creditors;
(v) makes the admission in writing that it generally is unable to
pay its debts as the same become due;
(g) a court of competent jurisdiction enters a judgment, order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case,
(ii) appoints a Custodian of the Company, or
(iii) orders the liquidation of the Company,
and in any case, the order or decree remains unstayed and in effect for 90 days;
or
(h) the Company or any of its subsidiaries fails to pay, at final
maturity, indebtedness (other than indebtedness incurred in connection with a
Qualified Securitization Transaction) that is in excess of $50 million principal
amount, or acceleration resulting from an Event of Default of any indebtedness
(other than indebtedness incurred in connection with a Qualified Securitization
Transaction) of the Company or any of its subsidiaries in an aggregate principal
amount in excess of $50 million.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
SECTION 6.2 Acceleration.
If an Event of Default (other than an Event of Default with respect to the
Company specified in clauses (f) and (g) of Section 6.1) occurs and is
continuing, then and in every such case the Trustee, by written notice to the
Company, or the holders of at least 25% in aggregate principal amount of the
then outstanding Exchangeable Notes, by written notice to the Company and the
Trustee, may declare the unpaid principal of, and accrued and unpaid interest
and Liquidated Damages, if any, on, all the Exchangeable Notes then outstanding
to be due and payable. Upon such declaration such principal amount, and accrued
and unpaid interest and
28
Liquidated Damages, if any, shall become immediately due and payable,
notwithstanding anything contained in this Indenture or the Exchangeable Notes
to the contrary. If any Event of Default with respect to the Company specified
in clauses (f) or (g) of Section 6.1 occurs, all unpaid principal of and
premium, if any, and accrued and unpaid interest and Liquidated Damages, if any,
on the Exchangeable Notes then outstanding shall become automatically due and
payable without any declaration or other act on the part of the Trustee or any
holder of Exchangeable Notes.
The Holders of a majority in aggregate principal amount of the then
outstanding Exchangeable Notes by notice to the Trustee may rescind an
acceleration of the Exchangeable Notes and its consequences if all existing
Events of Default (other than nonpayment of principal of or interest and
Liquidated Damages, if any, on the Exchangeable Notes which has become due
solely by virtue of such acceleration) have been cured or waived, the amounts
payable to the Trustee under Section 7.7 shall have been paid and if the
rescission would not conflict with any judgment or decree of any court of
competent jurisdiction. No such rescission shall affect any subsequent Default
or Event of Default or impair any right consequent thereto.
SECTION 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of or interest or Liquidated Damages, if applicable, on the
Exchangeable Notes or to enforce the performance of any provision of the
Exchangeable Notes or this Indenture. The Trustee may maintain a proceeding even
if it does not possess any of the Exchangeable Notes or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any holder of an
Exchangeable Note in exercising any right or remedy occurring upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent
permitted by law.
SECTION 6.4 Waiver of Past Defaults.
The holders of a majority in aggregate principal amount of the Exchangeable
Notes then outstanding may, on behalf of the holders of all the Exchangeable
Notes, waive an existing Default or Event of Default and its consequences,
except a Default or Event of Default in the payment of the principal of or
interest or Liquidated Damages, if any, on the Exchangeable Notes (other than
the non-payment of principal of and interest and Liquidated Damages, if any, on
the Exchangeable Notes which has become due solely by virtue of an acceleration
which has been duly rescinded as provided above), or in respect of a covenant or
provision of this Indenture which cannot be modified or amended without the
consent of all holders of Exchangeable Notes. When a Default or Event of Default
is waived, it is cured and stops continuing. No waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
SECTION 6.5 Control by Majority.
The holders of a majority in aggregate principal amount of the then
outstanding Exchangeable Notes may direct the time, method and place of
conducting any proceeding for
29
any remedy available to the Trustee or exercising any trust or power conferred
on it. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture that the Trustee determines may be unduly prejudicial
to the rights of other holders of Exchangeable Notes or that may involve the
Trustee in personal liability; provided that the Trustee shall have no duty or
obligation (subject to Section 7.1) to ascertain whether or not such actions or
forbearances are unduly prejudicial to such holders; provided, further, that the
Trustee may take any other action the Trustee deems proper that is not
inconsistent with such directions.
SECTION 6.6 Limitation on Suits.
A holder of an Exchangeable Note may not pursue any remedy with respect to
this Indenture or the Exchangeable Notes unless:
(1) the holder gives to the Trustee notice of a continuing Event of
Default;
(2) the holders of at least 25% in principal amount of the then
outstanding Exchangeable Notes make a request to the Trustee to pursue the
remedy;
(3) such holder or holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(5) during such 60-day period the holders of a majority in principal
amount of the then outstanding Exchangeable Notes do not give the Trustee a
direction inconsistent with the request.
A holder of an Exchangeable Note may not use this Indenture to prejudice
the rights of another holder or to obtain a preference or priority over another
holder.
SECTION 6.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
holder of an Exchangeable Note to receive payment of principal, interest and
Liquidated Damages, if any, on the Exchangeable Note, on or after the respective
due dates expressed in the Exchangeable Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, or to bring
suit for the enforcement of the right to exchange the Exchangeable Note shall
not be impaired or affected without the consent of the holder of an Exchangeable
Note.
SECTION 6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a), (b) or (d) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount of principal and
interest and Liquidated Damages, if any, remaining unpaid on the Exchangeable
Notes and interest on overdue principal and interest and Liquidated Damages, if
any, and such further amount as shall be sufficient to cover the costs and, to
the extent lawful, expenses of collection, including the reasonable
compensation, expenses,
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disbursements and advances of the Trustee, its agents and counsel, and all other
amounts due the Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
holders of Exchangeable Notes allowed in any judicial proceedings relative to
the Company, its creditors or its property. The Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal
of, and interest and Liquidated Damages, if any, on, the Exchangeable Notes and
to file such 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 all other amounts due the Trustee under Section 7.7.) and of the
holders of the Exchangeable Notes allowed in such judicial proceedings; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any Custodian in
any such judicial proceeding is hereby authorized by each holder of Exchangeable
Notes 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 holder of
Exchangeable Notes, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any holder of an
Exchangeable Note any plan of reorganization, arrangement, adjustment or
composition affecting the Exchangeable Notes or the rights of any holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
holder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 7.7,
including payment of all compensation, expenses and liabilities
incurred, and all advances made, by the Trustee, and the costs
and expenses of collection;
Second: to holders of Exchangeable Notes for amounts due and
unpaid on the Exchangeable Notes for principal, interest and
Liquidated Damages, if any, ratably, without preference or
priority of any kind, according to the amounts due and payable on
the Exchangeable Notes for principal, interest and Liquidated
Damages, if any, respectively; and
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Third: to the Company.
Except as otherwise provided in Section 2.12, the Trustee may fix a record
date and payment date for any payment to holders of Exchangeable Notes.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit, other than the Trustee, of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section does not apply to a suit by the Trustee, a suit
by a holder pursuant to Section 6.7 or a suit by holders of more than 10% in
principal amount of the then outstanding Exchangeable Notes.
ARTICLE 7
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed. Whether or not
herein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article 7.
SECTION 7.1 Duties of the Trustee.
(a) If an Event of Default known to a Trust Officer of the Trustee has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to the
Trustee:
(1) 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
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but shall not be required to
confirm or investigate the accuracy of mathematical calculations or other facts
stated therein).
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) or
paragraph (e) of this Section;
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer or any other officer of the Trustee to
whom such matter is referred, because of such person's knowledge of and
familiarity with the particular subject, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that is in any way related to the Trustee is subject to
paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties or the exercise of any of its rights and powers
hereunder, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk of liability is not
reasonably assured to it.
(f) The Trustee shall not be liable for interest on or the investment
of any money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.2 Rights of the Trustee.
(a) The Trustee may conclusively rely on and shall be protected in
acting or refraining from acting upon any resolution, Officers' Certificate, or
any other certificate, statement, instrument, opinion, report, notice, request,
consent, order, security or other 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 contained therein.
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically prescribed). In addition,
before the Trustee acts or refrains from acting, it may require an Officers'
Certificate, an Opinion of Counsel or both. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel. The Trustee may consult with counsel of its
selection 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 execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through attorneys and
agents and other persons not
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regularly in its employ and shall not be responsible for the misconduct or
negligence of any attorney or agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith without negligence or willful misconduct which it believes
to be authorized or within its discretion, rights or powers.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
Officers of the Company.
(f) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(g) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the holders of Exchangeable Notes pursuant to the provisions of this
Indenture, unless such holders have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred therein or thereby.
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, security or other document
unless requested in writing to do so by the holders of not less than a majority
in aggregate principal amount of the Exchangeable Notes then outstanding,
provided that if the Trustee determines in its discretion to make any such
investigation, then it shall be entitled, upon reasonable prior notice and
during normal business hours, to examine the books and records and the premises
of the Company, personally or by agent or attorney, and the reasonable expenses
of every such examination shall be paid by the Company or, if paid by the
Trustee or any predecessor Trustee, shall be reimbursed by the Company upon
demand.
(i) The permissive rights of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty, and the Trustee shall not be
answerable for other than its negligence or willful misconduct.
(j) The Trustee shall not be responsible for the computation of any
adjustment to the Exchange Price or for any determination as to whether an
adjustment is required and shall not be deemed to have knowledge of any
adjustment unless and until it shall have received the notice from the Company
contemplated by Section 12.5(j).
(k) The rights, privileges, protections, immunities and benefits given to
the Trustee, including, but not limited to, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, whether as Agent or otherwise, and to each Agent, custodian and other
person employed to act hereunder.
SECTION 7.3 Individual Rights of the Trustee.
Subject to Sections 7.10 and 7.11, the Trustee in its individual or any
other capacity may become the owner or pledgee of Exchangeable Notes with the
same rights it would have if it
34
were not the Trustee and may otherwise deal with the Company or an Affiliate of
the Company and receive, collect, hold and retain collections from the Company
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
SECTION 7.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Exchangeable Notes. It shall
not be accountable for the Company's use of the proceeds from the Exchangeable
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 Exchangeable Notes or any other document in connection with the
sale of the Exchangeable Notes or pursuant to this Indenture other than its
certificate of authentication.
SECTION 7.5 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to a Trust Officer of the Trustee, the Trustee shall mail to each holder
of an Exchangeable Note a notice of the Default or Event of Default within 60
days after such Default or Event of Default occurs. A Default or an Event of
Default shall not be considered known to a Trust Officer of the Trustee unless
it is a Default or Event of Default in the payment of principal or interest when
due under Section 6.1(a), (b) (d) or (h) or a Trust Officer of the Trustee shall
have received written notice thereof, in accordance with this Indenture, from
the Company or from the holders of a majority in principal amount of the
outstanding Exchangeable Notes. Except in the case of a Default or Event of
Default in payment of principal or interest or Liquidated Damages, if any, on
any Exchangeable Note, the Trustee may withhold the notice if and so long as a
trust committee of its officers in good faith determines that withholding the
notice is in the interest of the holders of the Exchangeable Notes.
SECTION 7.6 Reports by the Trustee to Holders.
Within 60 days after the reporting date stated in Section 11.10, the
Trustee shall mail to holders of Exchangeable 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 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 holders of Exchangeable
Notes shall be filed, at the expense of the Company, by the Trustee with the
Commission and each stock exchange or securities market, if any, on which the
Exchangeable Notes are listed. The Company shall timely notify the Trustee when
the Exchangeable Notes are listed or quoted on any stock exchange or securities
market and of any delisting thereof.
SECTION 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as the Company and the Trustee shall
agree in writing for its acceptance
35
of this Indenture and its services hereunder. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by or on behalf of it in
addition to the compensation for its services. Such expenses may include the
reasonable compensation, disbursements and expenses of the Trustee's agents,
counsel and other persons not regularly in its employ.
The Company shall indemnify, defend and hold the Trustee and its directors,
officers, employees and agents (collectively with the Trustee the "Indemnitees")
harmless from and against every loss, liability, damages, claim or expense,
including without limitation damages, fines, suits, actions, demands, penalties,
costs, out-of-pocket or incidental expenses, legal fees and expenses, and the
costs and expenses of defending any claim (whether asserted by the Company, a
holder of Exchangeable Notes or any other Person) (collectively, "Losses"), that
may be imposed on, incurred by, or asserted against, any Indemnitee for or in
respect of the Trustee's (i) execution and delivery of this Indenture, (ii)
compliance or attempted compliance with or reliance upon any instruction or
other direction upon which the Trustee is authorized to rely pursuant to the
terms of this Indenture and (iii) performance under this Indenture except as set
forth in the next paragraph. Any Indemnitee shall notify the Company promptly of
any claim for which it may seek indemnity under this Section.
The Company does not need to reimburse any expense or indemnify against any
Loss incurred by the Trustee or any Indemnitee through its own negligence or
willful misconduct.
The Trustee shall have a lien prior to the Exchangeable Notes on all money
or property held or collected by the Trustee to secure the Company's payment
obligations in this Section 7.7, except that held in trust to pay principal, the
Redemption Price, interest and Liquidated Damages, if any, on Exchangeable
Notes. Such liens and the Company's obligations under this Section 7.7 shall
survive the termination, satisfaction and discharge of this Indenture and the
resignation or removal of the Trustee for any reason.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(f) or (g) 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.
SECTION 7.8 Replacement of the 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 7.8.
The Trustee may resign at any time and be discharged from the trust hereby
created by so notifying the Company. The holders of a majority in principal
amount of the then outstanding Exchangeable Notes may remove the Trustee by so
notifying the Trustee and the Company in writing and may appoint a successor
Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
36
(2) 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;
(3) a Custodian or public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the holders
of a majority in principal amount of the then outstanding Exchangeable Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the holders of at least 10% in principal amount of the then outstanding
Exchangeable Notes may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee after written request by any holder of an Exchangeable Note
who has been a holder for at least six months fails to comply with Section 7.10,
such holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to holders of
Exchangeable Notes. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided that all sums owing to
the retiring Trustee hereunder have been paid and subject to the lien provided
for in Section 7.7. Notwithstanding the replacement of the Trustee pursuant to
this Section 7.8, the Company's obligations under Section 7.7 shall continue for
the benefit of the retiring Trustee with respect to expenses and liabilities
incurred by it prior to such replacement.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
SECTION 7.9 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or exchanges into, or transfers
all or substantially all of its corporate trust business (including the trust
created by this Indenture) to, another person, the resulting, surviving or
transferee person without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
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SECTION 7.10 Eligibility, Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1). The Trustee shall always have a combined capital and
surplus as stated in Section 11.10. The Trustee is and shall always be subject
to TIA Section 310(b) regarding the disqualification of a trustee upon acquiring
a conflicting interest.
SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship set forth 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.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.1 Discharge of Indenture.
When (a) the Company delivers to the Trustee for cancellation all
Exchangeable Notes theretofore authenticated (other than any other Exchangeable
Notes which have been destroyed, lost or stolen and in lieu of or in
substitution for which other Exchangeable Notes have been authenticated and
delivered) and not theretofore canceled, or (b) all the Exchangeable Notes not
theretofore canceled or delivered to the Trustee for cancellation have become
due and payable, or by their terms will become due and payable within one year
and the Company deposits with the Trustee, in trust, amounts sufficient to pay
at maturity all of the Exchangeable Notes (other than any Exchangeable Notes
which have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Exchangeable Notes have been authenticated and
delivered) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and interest and Liquidated Damages, if any,
due or to become due to such date of maturity, and if in either case the Company
also pays, or causes to be paid, all other sums payable hereunder by the
Company, then this Indenture shall cease to be of further effect (except as to
(i) rights of registration of transfer, substitution, replacement and exchange
and rights to exchange the Exchangeable Notes for Common Stock, (ii) rights
hereunder of holders of Exchangeable Notes to receive payments of principal of
and interest, and Liquidated Damages, if any, on, the Exchangeable Notes, (iii)
the obligations under Sections 2.3 and 8.5 hereof and (iv) the rights,
obligations and immunities of the Trustee hereunder), and the Trustee, on demand
of the Company accompanied by an Officers' Certificate and an Opinion of Counsel
as required by Section 11.4, and at the Company's cost and expense, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture; the Company, however, hereby agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred by the Trustee and
to compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Exchangeable
Notes.
SECTION 8.2 Deposited Monies to be Held in Trust by Trustee.
Subject to Section 8.4, all monies deposited with the Trustee pursuant to
Section 8.1 shall be held in trust and applied by it to the payment, either
directly or through the Paying Agent, to
38
the holders of the particular Exchangeable Notes for the payment of which such
monies have been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest, and Liquidated Damages, if any.
SECTION 8.3 Paying Agent to Repay Monies Held.
Upon the satisfaction and discharge of this Indenture, all monies then held
by any Paying Agent (other than the Trustee) shall, upon the Company's demand,
be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be
released from all further liability with respect to such monies.
SECTION 8.4 Return of Unclaimed Monies.
Subject to the requirements of applicable law, any monies deposited with or
paid to the Trustee for payment of the principal of or interest (including
Liquidated Damages) on Exchangeable Notes and not applied but remaining
unclaimed by the holders thereof for two years after the date upon which the
principal of or interest (including Liquidated Damages) on such Exchangeable
Notes, as the case may be, have become due and payable, shall be repaid to the
Company by the Trustee on demand; provided, however, that the Company, or the
Trustee at the request and expense of the Company, shall have first caused
notice of such payment to the Company to be mailed to each holder of an
Exchangeable Note entitled thereto no less than 30 days prior to such payment
and all liability of the Trustee shall thereupon cease with respect to such
monies; and the holder of any of the Exchangeable Notes shall thereafter look
only to the Company for any payment which such holder may be entitled to collect
unless an applicable abandoned property law designates another person. In the
absence of a written request from the Company to return unclaimed funds to the
Company, as the case may be, the Trustee shall from time to time deliver all
unclaimed funds held by it in any capacity hereunder to or as directed by
applicable escheat authorities, as determined by the Trustee in its sole
discretion, in accordance with the customary practices and procedures of the
Trustee. Any unclaimed funds held by the Trustee in any capacity hereunder
pursuant to this Section 8.4 shall be held uninvested and without any liability
for interest.
SECTION 8.5 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 8.2 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Exchangeable
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 8.1 until such time as the Trustee or the Paying Agent is permitted
to apply all such money in accordance with Section 8.2; provided, however, that
if the Company makes any payment of interest (including Liquidated Damages) on
or principal of any Exchangeable Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the holders
thereof to receive such payment from the money held by the Trustee or Paying
Agent.
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ARTICLE 9
AMENDMENTS
SECTION 9.1 Without the Consent of Holders.
The Company, Navistar and the Trustee may amend this Indenture or the
Exchangeable Notes without notice to or the consent of any holder of an
Exchangeable Note for the purposes of:
(a) curing any ambiguity or correcting or supplementing any defective
or inconsistent provision contained in this Indenture or making any other
changes in the provisions of this Indenture which the Company, Navistar and the
Trustee may deem necessary or desirable provided such amendment does not
materially and adversely affect the legal rights under the Indenture of the
holders of Exchangeable Notes;
(b) providing for uncertificated Exchangeable Notes in addition to or
in place of certificated Exchangeable Notes;
(c) evidencing the succession of another person to the Company and
providing for the assumption by such successor of the covenants and obligations
of the Company hereunder and in the Exchangeable Notes as permitted by Section
5.1;
(d) providing for exchange rights and/or repurchase rights of holders
of Exchangeable Notes in the event of consolidation, merger, share exchange or
sale of all or substantially all of the assets of the Company as required to
comply with Sections 5.1 and/or 12.6;
(e) reducing the Exchange Price;
(f) evidencing and providing for the acceptance of appointment under this
Indenture of a successor Trustee;
(g) making any changes that would provide the holders of the Exchangeable
Notes with any additional rights or benefits or that does not adversely affect
the legal rights under this Indenture of any such holder; or
(h) complying with the requirements of the Commission in order to effect
or maintain the qualification of the Indenture under the TIA.
SECTION 9.2 With the Consent of Holders.
Subject to Section 6.7, the Company and the Trustee may amend this
Indenture or the Exchangeable Notes with the written consent of the holders of
at least a majority in principal amount of the then outstanding Exchangeable
Notes (including consents obtained in connection with a tender offer or exchange
offer for Exchangeable Notes).
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Subject to Sections 6.4 and 6.7, the holders of a majority in principal
amount of the Exchangeable Notes then outstanding may also waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Exchangeable Notes.
However, without the consent of each holder of an Exchangeable Note
affected, an amendment or waiver under this Section 9.2 may not (with respect to
any Exchangeable Notes held by a non-consenting holder):
(a) reduce the principal amount of Exchangeable Notes whose holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Exchangeable Note;
(c) reduce the rate of, or change the time for payment of, interest,
including defaulted interest, or Liquidated Damages on any Exchangeable Note;
(d) waive a Default or Event of Default in the payment of principal of,
interest or Liquidated Damages, if any, on the Exchangeable Notes (except a
rescission of acceleration of the Exchangeable Notes by the holders of at least
a majority in aggregate principal amount of the Exchangeable Notes then
outstanding and a waiver of the payment default that resulted from such
acceleration);
(e) make the principal of, interest or Liquidated Damages on, any
Exchangeable Note payable in money other than as provided for herein and in the
Exchangeable Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or Events of Default or the rights of holders of
Exchangeable Notes to receive payments of principal of, or interest or
Liquidated Damages on, the Exchangeable Notes;
(g) except as permitted herein (including Section 9.1(a)), increase
the Exchange Price or modify the provisions contained herein relating to
exchange of the Exchangeable Notes in a manner adverse to the holders thereof;
(h) waive a repurchase, upon the occurrence of a Fundamental Change,
with respect to any Exchange Note; or
(i) make any change to the abilities of holders of Exchangeable Notes to
enforce their rights hereunder or the provisions of clauses (a) through (h) of
this Section 9.2.
To secure a consent of the holders of Exchangeable Notes under this Section
9.2, it shall not be necessary for such holders to approve the particular form
of any proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment or waiver under this Section 9.2 becomes effective, the
Company shall mail to holders of Exchangeable Notes a notice briefly describing
the amendment or waiver.
41
SECTION 9.3 Compliance with the Trust Indenture Act.
Every amendment to this Indenture or the Exchangeable Notes shall be set
forth in a supplemental indenture that complies with the TIA as then in effect.
SECTION 9.4 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a holder
of an Exchangeable Note is a continuing consent by the holder and every
subsequent holder of an Exchangeable Note or portion of an Exchangeable Note
that evidences the same debt as the consenting holder's Exchangeable Note, even
if notation of the consent is not made on any Exchangeable Note. However, any
such holder or subsequent holder may revoke the consent as to his or her
Exchangeable Note or portion of an Exchangeable Note if the Trustee receives the
notice of revocation before the date on which the Trustee receives an Officers'
Certificate certifying that the holders of the requisite principal amount of
Exchangeable Notes have consented to the amendment or waiver.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the holders of Exchangeable Notes entitled to consent to
any amendment or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those persons who were
holders of Exchangeable Notes at such record date (or their duly designated
proxies), and only those persons, shall be entitled to consent to such amendment
or waiver or to revoke any consent previously given, whether or not such persons
continue to be holders after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
holders of the principal amount of Exchangeable Notes required hereunder for
such amendment or waiver to be effective shall have also been given and not
revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every holder
of an Exchangeable Note, unless it is of the type described in clauses (a) - (i)
of Section 9.2. In such case, the amendment or waiver shall bind each holder of
an Exchangeable Note who has consented to it and every subsequent holder of an
Exchangeable Note or portion of an Exchangeable Note that evidences the same
debt as the consenting holder's Exchangeable Note.
SECTION 9.5 Notation on or Exchange of Exchangeable Notes.
Exchangeable Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article 9 may, and shall if required by
the Trustee, bear a notation in the form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Exchangeable Notes so modified as to conform, in the opinion of
the Company and the Trustee, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in
exchange for outstanding Exchangeable Notes without charge to the holders of the
Exchangeable Notes, except as specified in Section 2.6.
42
SECTION 9.6 Trustee Protected.
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article 9 if such amendment or supplemental indenture does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If such amendment or supplemental indenture does adversely affect the rights,
duties, liabilities or immunities of the Trustee, the Trustee may, but need not,
sign it. In signing such amendment or supplemental indenture, the Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that such
amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
ARTICLE 10
SUBORDINATION
SECTION 10.1 Agreement to Subordinate.
The Company covenants and agrees, and each holder of the Exchangeable Notes
issued hereunder or pursuant to a Board Resolution and Officers' Certificate
("Additional Provisions"), by such holder's acceptance thereof, likewise
covenants and agrees that all Exchangeable Notes shall be issued subject to the
provisions of this Article 10; and each holder of an Exchangeable Note, whether
upon original issue or upon transfer or assignment thereof, accepts and agrees
to be bound by such provisions.
The payment by the Company of the principal of, any premium, Redemption
Price, Liquidated Damages and interest with respect to the Exchangeable Notes
and under any Additional Provisions shall, to the extent and in the manner
hereinafter set forth, be subordinate in right of payment to the prior payment
in full of all Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article 10 shall prevent the occurrence of any default
or Event of Default hereunder.
SECTION 10.2 Terms and Conditions of Subordination.
The Company, for itself and its successors, and each holder, by its
acceptance of Exchangeable Notes, agree that the payment of the principal of or
interest on or any other amounts due on the Exchangeable Notes is subordinated
in right of payment, to the extent and in the manner stated in this Article 10,
to the prior payment in full of all existing and future Senior Indebtedness of
the Company. The Exchangeable Notes shall rank pari passu with, and shall not be
senior in right of payment to, such other Indebtedness of the Company whether
outstanding on the date of this Indenture or hereafter created, incurred, issued
or guaranteed by the Company, where the instrument creating or evidencing such
Indebtedness expressly provides that such Indebtedness ranks pari passu with the
Exchangeable Notes.
The Exchangeable Notes shall be subordinate in right of payment to all
existing and future Senior Indebtedness of the Company. The payment of the
principal of, Redemption Price,
43
Liquidated Damages, interest on or any other amounts due on the Exchangeable
Notes is subordinated in right of payment to the prior payment in full of all
existing and future Senior Indebtedness. No payment on account of principal of,
redemption of, interest on or any other amounts due on the Exchangeable Notes,
including, without limitation, any payments on the Fundamental Change Offer, and
no redemption, purchase or other acquisition of the Exchangeable Notes may be
made, except payments comprised solely of Permitted Junior Securities, if:
(1) a payment default on Designated Senior Indebtedness occurs and is
continuing beyond any applicable grace period, or Payment Default ("Payment
Default"); or
(2) a default other than a Payment Default on any Designated Senior
Indebtedness occurs and is continuing that permits the holders of Designated
Senior Indebtedness to accelerate its maturity, and the trustee receives a
notice of such default (a "Payment Blockage Notice") from the Company or from
any holder of Designated Senior Indebtedness or such holder's representative (a
"Non-Payment Default"), but only for the period (the "Payment Blockage Period")
commencing on the date of receipt of the Payment Blockage Notice and ending
(unless earlier terminated by notice given to the Trustee by the holders of such
Designated Senior Indebtedness) (a) in the case of a Payment Default, upon the
date on which such Payment Default is cured or waived or ceases to exist, and
(b) in the case of a Non-Payment Default, the earliest of the date on which such
Non-Payment Default is cured or waived or ceases to exist, the date the
applicable Payment Blockage Notice is rescinded or 179 days from the date notice
is received, if the maturity of the Designated Senior Indebtedness has not been
accelerated. Upon termination of the Payment Blockage Period, payments on
account of principal of or interest on the Exchangeable Notes (other than,
subject to Section 10.03 hereof, amounts due and payable by reason of the
acceleration of the maturity of the Exchangeable Notes) and redemptions,
purchases or other acquisitions shall be made by or on behalf of the Company.
Notwithstanding the foregoing, no new Payment Blockage Notice with respect
to the same event of default or any other events of default existing or
continuing at the time of notice on the same issue of Designated Senior
Indebtedness may be given and no new Payment Blockage Period may be commenced by
the holders of such Designated Senior Indebtedness unless 365 consecutive days
have elapsed since the initial effectiveness of the immediately preceding
Payment Blockage Notice.
If the Trustee or any holder of Exchangeable Notes receives any payment or
distribution of the Company's assets of any kind in contravention of any of the
terms hereof, whether in cash, property or securities, in respect of the
Exchangeable Notes before all Senior Indebtedness is paid in full, then the
payment or distribution will be held by the recipient in trust for the benefit
of holders of Senior Indebtedness, and will be immediately paid over or
delivered to the holders of Senior Indebtedness or their representative or
representatives to the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent payment or
distribution, or provision therefor, to or for the holders of Senior
Indebtedness.
44
SECTION 10.3 Distribution on Acceleration or Notes, Dissolution and
Reorganization.
(a) If the Exchangeable Notes are declared due and payable because of the
occurrence of an Event of Default, the Company or the Trustee shall give prompt
written notice to the holders of all Senior Indebtedness or to the trustee(s)
for such Senior Indebtedness of such acceleration.
(b) Upon (i) any acceleration of the principal amount due on the
Exchangeable Notes because of an Event of Default or (ii) any distribution of
assets of the Company upon any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or any other
dissolution, winding up, liquidation or reorganization of the Company):
(1) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full of the principal thereof, the interest thereon and
any other amounts due thereon before the holders are entitled to receive
payment on account of the principal of or interest on or any other amounts
due on the Exchangeable Notes, except payments comprised solely of
Permitted Junior Securities;
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than Permitted
Junior Securities), to which the holders or the Trustee would be entitled
except for the provisions of this Article 10, shall be paid by the
liquidating trustee or agent or other Person making such a payment or
distribution, directly to the holders of Senior Indebtedness (or their
representatives(s) or trustee(s) acting on their behalf), ratably according
to the aggregate amounts remaining unpaid on account of the principal of or
interest on and other amounts due on the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities (other than payments comprised solely of
Permitted Junior Securities), shall be received by the Trustee or the
holders before all Senior Indebtedness is paid in full, such payment or
distribution shall be held in trust for the benefit of, and be paid over to
upon request by a holder of the Senior Indebtedness, the holders of the
Senior Indebtedness remaining unpaid (or their representatives) or
trustee(s) acting on their behalf, ratably as aforesaid, for application to
the payment of such Senior Indebtedness until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders
shall be subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal of and interest on the
Exchangeable Notes shall be paid in full and, for purposes of such subrogation,
no such payments or distributions to the holders of Senior Indebtedness of cash,
property or securities which otherwise would have been payable or distributable
to Holders shall, as between the Company, its creditors other than the holders
of
45
Senior Indebtedness, and the Holders, be deemed to be a payment by the Company
to or on account of the Senior Indebtedness, it being understood that the
provisions of this Article 10 are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of
Senior Indebtedness, on the other hand.
Nothing contained in this Article 10 or elsewhere in this Indenture, or in
the Exchangeable Notes is intended to or shall (i) impair, as between the
Company and its creditors other than the holders of Senior Indebtedness, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders the principal of and interest on the Exchangeable Notes as and when the
same shall become due and payable in accordance with the terms of the
Exchangeable Notes or (ii) affect the relative rights of the Holders and
creditors of the Company other than holders of Senior Indebtedness or, as
between the Company and the Trustee, the obligations of the Company to the
Trustee, or (iii) prevent the Trustee or the Holders from exercising all
remedies otherwise permitted by applicable law upon default under the Indenture
and this Indenture, subject to the rights, if any, under this Article 10 of the
holders of Senior Indebtedness in respect of cash, property and securities of
the Company received upon the exercise of any such remedy.
Upon distribution of assets of the Company referred to in this Article 10,
the Trustee, subject to the provisions of Sections 7.2 of this Indenture, and
the holders shall be entitled to rely upon a certificate of the liquidating
trustee or agent or other Person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 10. The Trustee, however, shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness. Nothing contained in this
Article 10 or elsewhere in this Indenture or in any of the Exchangeable Notes,
shall prevent the good faith application by the Trustee of any moneys which were
deposited with it hereunder, prior to its receipt of written notice of facts
which would prohibit such application, for the purpose of the payment of or on
account of the principal of or interest on, the Exchangeable Notes unless, prior
to the date on which such application is made by the Trustee, the Trustee shall
be charged with notice under Section 10.3(d) hereof of the facts which would
prohibit the making of such application.
(c) The provisions of this Article 10 shall not be applicable to any cash,
properties or securities received by the Trustee or by any Holder when received
as a holder of Senior Indebtedness and nothing in the Indenture or this
Indenture shall deprive the Trustee or such Holder of any of its rights as such
holder.
(d) 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 of
money to or by the Trustee in respect of the Exchangeable Notes pursuant to the
provisions of this Article 10. The Trustee, subject to the provisions of Section
7.2 of this Indenture, shall be entitled to assume that no such fact exists
unless the Company or any holder of Senior Indebtedness or any trustee therefor
has given such notice to the Trustee. Notwithstanding the provisions of this
Article 10 or any other provisions of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any fact which would prohibit the
making of any payment of monies to or by the Trustee in
46
respect of the Exchangeable Notes pursuant to the provisions in this
Article 10, unless, and until three Business Days after, the Trustee shall have
received written notice thereof from the Company or any holder or holders of
Senior Indebtedness or from any trustee therefor; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Sections 7.2
of this Indenture, shall be entitled in all respects conclusively to assume that
no such facts exist; provided that if on a date not less than three Business
Days immediately preceding the date upon which by the terms hereof any such
monies may become payable for any purpose (including, without limitation, the
principal of or interest on any Note), the Trustee shall not have received with
respect to such monies the notice provided for in this Section 10.3(d), than
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such prior date.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee on behalf of such holder) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee on behalf of any such
holder or holders). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article 10, 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; nor shall the Trustee be
charged with knowledge of the curing or waiving of any default of the character
specified in Section 10.2 or that any event or any condition preventing any
payment in respect of the Exchangeable Notes shall have ceased to exist, unless
and until the Trustee shall have received an Officers' Certificate to such
effect.
(e) The provisions of this Section 10.3 applicable to the Trustee shall
also apply to any Paying Agent for the Company.
(f) Each holder of a Note, by its acceptance thereof, authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article 10 and
appoints the Trustee its attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding up or liquidation or
reorganization under any applicable bankruptcy law of the Company (whether in
bankruptcy, insolvency or receivership proceedings or otherwise), the timely
filing of a claim for the unpaid balance of such holder's Exchangeable Notes in
the form required in such proceedings and the causing of such claim to be
approved. If the Trustee does not file a claim or proof of debt in the form
required in such proceedings prior to 30 days before the expiration of the time
to file such claims or proofs, then any Holder or holders of Senior Indebtedness
or their representative or representatives shall have the right to demand, xxx
for, collect, receive and receipt for the payments and distributions in respect
of the Exchangeable Notes which are required to be paid or delivered to the
holders of Senior Indebtedness as provided in this Article 10 and to file and
prove all claims therefore and to take all such other action in the name of the
holders or
47
otherwise, as such holders of Senior Indebtedness or representative thereof may
determine to be necessary or appropriate for the enforcement of the provisions
of this Article 10.
For purposes of this Article 10, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other Corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article 10 with respect to
the Securities of the relevant series to the payment of all Senior Indebtedness
with respect to the Securities of such series that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by the new
Corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the
conveyance, transfer or lease of its property as an entirety, or substantially
as an entirety, to another Person upon the terms and conditions provided for in
Article 5 of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 10.3 if such
other Person shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article 5 of this Indenture.
Nothing in Section 10.2 or in this Section 10.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.7 of this Indenture.
SECTION 10.4 Subrogation.
Subject to the payment in full of all Senior Indebtedness with respect to
Exchangeable Notes, the rights of the Holders of the Securities of such series
shall be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Company
applicable to such Senior Indebtedness until the principal of, any premium,
Redemption Price and interest on the Exchangeable Notes of such series shall be
paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Indebtedness of any cash, property
or securities to which the holders or the Trustee would be entitled except for
the provisions of this Article 10, and no payment over pursuant to the
provisions of this Article 10 to or for the benefit of the holders of such
Senior Indebtedness by holders of the Exchangeable Notes or the Trustee, shall,
as between the Company, its creditors other than holders of such Senior
Indebtedness, and the holders of the Exchangeable Notes be deemed to be a
payment by the Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article 10 are and are intended solely
for the purposes of defining the relative rights of the holders of the
Exchangeable Notes, on the one hand, and the holders of the Senior Indebtedness
with respect to the Exchangeable Notes on the other hand.
Nothing contained in this Article 10 or elsewhere in this Indenture, in any
Additional Provisions or in the Securities of any series is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior
Indebtedness with respect to the Exchangeable Notes, and the holders of the
Exchangeable Notes, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of Exchangeable Notes the principal of, any
premium, Redemption Price and interest on the Exchangeable Notes as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the holders of the Exchangeable Notes
and creditors of the Company,
48
other than the holders of such Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the holder of Exchangeable Notes from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article 10 of the
holders of such Senior Indebtedness in respect of cash, property or securities
of the Company, as the case may be, received upon the exercise of any such
remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee, subject to the provisions of Article 7 of this
Indenture, and the holders of the Exchangeable Notes shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the holders of the
Exchangeable Notes, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of Senior Indebtedness with
respect to the Exchangeable Notes and other indebtedness of the Company, as the
case may be, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
10.
SECTION 10.5 Trustee to Effectuate Subordination.
Each holder of Exchangeable Notes, by such holder's acceptance thereof,
authorizes and directs the Trustee on such holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article 10 and appoints the Trustee such holder's attorney-in-fact for any
and all such purposes.
SECTION 10.6 Notice by the Company.
The Company shall give prompt written notice to a Trust Officer of the
Trustee of any fact known to the Company that would prohibit the making of any
payment of monies to or by the Trustee in respect of the Exchangeable Notes
pursuant to the provisions of this Article 10. Notwithstanding the provisions of
this Article 10 or any other provision of this Indenture or any Additional
Provisions, the Trustee shall not be charged with knowledge of the existence of
any facts that would prohibit the making of any payment of monies to or by the
Trustee in respect of the Exchangeable Notes pursuant to the provisions of this
Article 10, unless and until a Trust Officer of the Trustee shall have received
written notice thereof from the Company or a holder or holders of Senior
Indebtedness with respect to the Securities of such series or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Article 7 of this Indenture, shall be entitled in
all respects to assume that no such facts exist; PROVIDED, HOWEVER, that if the
Trustee shall not have received the notice provided for in this Section 10.6 at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of, any premium or interest on, or any Additional
Amounts with respect to, any Security of such series), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purposes for which
they were received, and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
49
The Trustee, subject to the provisions of Article 7 of this Indenture,
shall be entitled to conclusively rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness with
respect to the Exchangeable Notes (or a trustee on behalf of such holder), to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article 10, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article 10, 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.
Upon any payment or distribution of assets of the Company referred to
in this Article 10, the Trustee and the holders shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding-up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the holders of the Securities of
any series, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness with respect
to the Exchangeable Notes of such series and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 10.
SECTION 10.7 Rights of the Trustee, Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article 10 in respect of any Senior Indebtedness with respect
to the Exchangeable Notes at any time held by it, to the same extent as any
other holder of such Senior Indebtedness, and nothing in this Indenture or any
Additional Provisions shall deprive the Trustee of any of its rights as such
holder.
With respect to the holders of Senior Indebtedness with respect to the
Exchangeable Notes, the Trustee undertakes to perform or to observe only such of
its covenants and obligations as are specifically set forth in this Article 10,
and no implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture or any Additional
Provisions against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of such Senior Indebtedness and, subject to the
provisions of Article 7 of this Indenture, the Trustee shall not be liable to
any holder of such Senior Indebtedness if it shall pay over or deliver to
holders of the Exchangeable Notes, the Company or any other Person money or
assets to which any holder of such Senior Indebtedness shall be entitled by
virtue of this Article 10 or otherwise.
Nothing in this Article 10 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.7.
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SECTION 10.8 Subordination may not be Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company,
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that 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 Indebtedness with respect to the Exchangeable Notes may, at
any time and from time to time, without the consent of or notice to the Trustee
or the holders of Exchangeable Notes, without incurring responsibility to such
holders and without impairing or releasing the subordination provided in this
Article 10 or the obligations hereunder of the holders of the Exchangeable Notes
to the holders of such Senior Indebtedness, 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, such Senior Indebtedness, or otherwise amend or
supplement in any manner such Senior Indebtedness or any instrument evidencing
the same or any agreement under which such Senior Indebtedness is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing such Senior Indebtedness; (iii) release any
Person liable in any manner for the collection of such Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights against the Company and any
other Person.
ARTICLE 11
GENERAL PROVISIONS
SECTION 11.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), such duties imposed by such section of the
TIA shall control. If any provision of this Indenture expressly modifies or
excludes any provision of the TIA that may be so modified or excluded, the
Indenture provision so modifying or excluding such provision of the TIA shall be
deemed to apply.
SECTION 11.2 Notices.
Any notice or communication by the Company or the Trustee to the other
parties is duly given if in writing and delivered in person or mailed by
first-class mail, with postage prepaid (registered or certified, return receipt
requested), or sent by facsimile or overnight air couriers guaranteeing next day
delivery, to the other party's address as stated in Section 11.10. The Company
or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.
All notices and communications (other than those sent to holders of
Exchangeable Notes) shall be deemed to have been duly given at the time
delivered by hand if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when transmission is
confirmed, if transmitted by facsimile; and the next business day after timely
51
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery. Notwithstanding the foregoing, all notices to the Trustee shall be
effective only upon receipt by a Trust Officer.
Any notice or communication to a holder of an Exchangeable Note shall be
mailed by first-class mail, with postage prepaid, to his or her address shown on
the Register kept by the Registrar. Failure to mail a notice or communication to
a holder or any defect in the notice or communication shall not affect its
sufficiency with respect to other holders.
If a notice or communication to a holder of an Exchangeable Note is sent in
the manner provided above within the time prescribed, it is duly given, whether
or not the addressee receives it.
If the Company sends a notice or communication to holders of Exchangeable
Notes, it shall send a copy to the Trustee and each Agent at the same time.
All notices or communications shall be in writing.
SECTION 11.3 Communication by Holders With Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other holders
with respect to their rights under this Indenture or the Exchangeable Notes. The
Company, the Trustee, the Registrar and the Paying Agent shall have the
protection of TIA ss.312(c).
SECTION 11.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture except in the case of the original issuance of the
Exchangeable Notes hereunder the Company, as the case may be, shall furnish to
the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.5) stating that, in the opinion of such person, all conditions
precedent provided for in this Indenture (including any covenants, compliance
with which constitutes a condition precedent) relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.5) stating that, in the opinion of such counsel, all such conditions
precedent (including any covenants, compliance with which constitutes a
condition precedent) have been complied with.
SECTION 11.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture except in the case of the original
issuance of the Exchangeable Notes hereunder (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
52
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she
has made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any Officers' Certificate may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, unless such Officer knows that the opinion
with respect to the matters upon which his or her certificate may be based as
aforesaid is erroneous. Any Opinion of Counsel may be based, insofar as it
relates to factual matters, upon certificates, statements or opinions of, or
representations by an officer or officers of the Company, or other persons or
firms deemed appropriate by such counsel, unless such counsel knows that the
certificates, statements or opinions or representations with respect to the
matters upon which his or her opinion may be based as aforesaid are erroneous.
Any Officers' Certificate, statement or Opinion of Counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or
representation by an accountant (who may be an employee of the Company), or firm
of accountants, unless such Officer or counsel, as the case may be, knows that
the certificate or opinion or representation with respect to the accounting
matters upon which his or her certificate, statement or opinion may be based as
aforesaid is erroneous.
SECTION 11.6 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by, or a meeting of,
holders of Exchangeable Notes. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 11.7 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of
New York or the city in which the Corporate Trust
Office of the Trustee is located are not required to be open, and a "business
day" is any day that is not a Legal Holiday. 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. If any date specified in this Indenture is a Legal Holiday,
then such date shall be the next succeeding business day.
SECTION 11.8 No Recourse Against Others.
No director, officer, employee, shareholder or Affiliate, as such, of the
Company or Navistar from time to time shall have any liability for any
obligations of the Company or Navistar under the Exchangeable Notes or this
Indenture or for any claim based on, in respect of,
53
or by reason of such obligations or their creation. Each holder by accepting an
Exchangeable Note waives and releases all such liability. This waiver and
release are part of the consideration for the Exchangeable Notes. Each of such
directors, officers, employees, shareholders and Affiliates is a third party
beneficiary of this Section 11.8.
SECTION 11.9 Counterparts.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 11.10 Other Provisions.
The Company initially appoints the Trustee as Paying Agent, Registrar and
authenticating agent.
The reporting date for Section 7.6 is May 15 of each year. The first
reporting date is the May 15 following the issuance of Exchangeable Notes
hereunder.
The Trustee shall always have, or shall be a subsidiary of a bank or bank
holding company which has, a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.
The Company's address is:
Navistar Financial Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Navistar International Corporation's address is:
Navistar International Corporation
0000 Xxxxxxxx Xxxx, X.X. Xxx 0000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
54
The Trustee's address is:
BNY Midwest Trust Company
0 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
SECTION 11.11 Governing Law.
The laws of the State of New York (including without limitation Section
5-1401 of the New York General Obligations Law or any successor to such statute)
shall govern this Indenture and the Exchangeable Notes.
SECTION 11.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any of their respective subsidiaries. Any such other
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.13 Successors.
All agreements of the Company and Navistar in this Indenture and the
Exchangeable Notes shall bind their respective successors. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.14 Severability.
In case any provision in this Indenture or in the Exchangeable Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 11.15 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
ARTICLE 12
EXCHANGE OF EXCHANGEABLE NOTES
SECTION 12.1 Right to Exchange.
Subject to and upon compliance with the provisions of this Indenture, each
holder of Exchangeable Notes shall have the right, at his or her option, at any
time on or before the close
55
of business on the last Trading Day prior to the Maturity Date (except that, (a)
with respect to any Exchangeable Note or portion thereof subject to a duly
completed election for repurchase, such right shall terminate on the close of
business on the Fundamental Change Payment Date (unless the Company defaults in
the payment due upon repurchase or such holder elects to withdraw the submission
of such election to repurchase in accordance with section 4.6) or (b) with
respect to any Exchangeable Note or portion thereof subject to a notice of
redemption under Section 3.4 hereof, such right shall terminate on the close of
business on the business day preceding the applicable Redemption Date (unless
the Company defaults in the payment due upon redemption)) to exchange the
principal amount of any Exchangeable Note held by such holder, or any portion of
such principal amount which is $1,000 or an integral multiple thereof, into that
number of fully paid and non-assessable shares of Common Stock (as such shares
shall then be constituted) obtained by dividing the principal amount of the
Exchangeable Note or portion thereof to be exchanged by the Exchange Price in
effect at such time, by surrender of the Exchangeable Note so to be exchanged in
whole or in part in the manner provided in Section 12.2. Exchangeable Notes in
respect of which a holder has delivered a Fundamental Change repurchase notice
exercising the option of such holder to require the Company to repurchase such
Exchangeable Notes may be exchanged only if the Fundamental Change repurchase
notice is withdrawn in accordance with the terms of this Indenture. A holder of
Exchangeable Notes is not entitled to any rights of a holder of Common Stock
until such holder of Exchangeable Notes has exchanged his or her Exchangeable
Notes to Common Stock, and only to the extent such Exchangeable Notes are deemed
to have been exchanged to Common Stock under this Article 12.
SECTION 12.2 Exercise of Exchange Privilege; Issuance of Common Stock on
Exchange; No Adjustment for Interest or Dividends.
To exercise, in whole or in part, the exchange privilege with respect to
any Exchangeable Note, the holder of such Exchangeable Note shall surrender such
Exchangeable Note, duly endorsed, at an office or agency maintained by Navistar
pursuant to Section 4.4, accompanied by the funds, if any, required by the final
paragraph of this Section 12.2 and a duly signed and completed written notice of
exchange in the form provided on the Exchangeable Notes (or such other notice
which is acceptable to Navistar) to the office or agency that the holder of
Exchangeable Notes elects to exchange such Exchangeable Note or such portion
thereof specified in said notice. Such notice shall also state the name or names
(with address or addresses) in which the certificate or certificates for shares
of Common Stock which are issuable on such exchange shall be issued, and shall
be accompanied by transfer taxes or any witholding, if required pursuant to
Section 12.7. Each such Exchangeable Note surrendered for exchange shall, unless
the shares issuable on exchange are to be issued in the same name as the
registration of such Exchangeable Note, be duly endorsed by, or be accompanied
by instruments of transfer in form satisfactory to Navistar duly executed by,
the holder of Exchangeable Notes or his or her duly authorized attorney. The
holder of such Exchangeable Notes will be required to pay any withholding tax or
duty which may be payable in respect of the issue or delivery of Common Stock on
exchange. The date on which the holder of Exchangeable Notes satisfies each of
the requirements provided in this paragraph shall be referred to as the
"Exchange Date."
Upon the exchange of the Exchangeable Notes for Common Stock (subject to
Section 12.3), Navistar shall issue and shall deliver to such holder at the
office or agency maintained by
56
Navistar for such purpose pursuant to Section 4.4, (1) no later than the fifth
business day after the Exchange Date, a certificate or certificates for the
number of full shares of Common Stock issuable upon the exchange of such
Exchangeable Note and (2) a check or cash in an amount calculated pursuant to
Section 12.3 in respect of any fractional interest in respect of a share of
Common Stock arising upon such exchange no later than the tenth business day
after the Exchange Date.
Certificates representing shares of Common Stock will not be issued or
delivered unless all withholdings, taxes and duties, if any, payable by the
holder have been paid. In case any Exchangeable Note of a denomination of an
integral multiple greater than $1,000 is surrendered for partial exchange, the
Company shall execute, and the Trustee shall authenticate and deliver to the
holder of the Exchangeable Note so surrendered, without charge to him or her, a
new Exchangeable Note or Exchangeable Notes in authorized denominations in an
aggregate principal amount equal to the unexchanged portion of the surrendered
Exchangeable Note.
Each exchange shall be deemed to have been effected as to any such
Exchangeable Note (or portion thereof) on the applicable Exchange Date, and the
person in whose name any certificate or certificates for shares of Common Stock
are issuable upon such exchange shall be deemed to have become on the applicable
Exchange Date the holder of record of the shares represented thereby; provided,
however, that any such surrender on any date when Navistar's stock transfer
books are closed shall constitute the person in whose name the certificates are
to be issued as the record holder thereof for all purposes on the next
succeeding day on which such stock transfer books are open, but such exchange
shall be at the Exchange Price in effect on the date upon which such
Exchangeable Note is surrendered.
Any Exchangeable Note or portion thereof surrendered for exchange during
the period from the close of business on the record date for any interest
payment through the close of business on the last Trading Day immediately
preceding such interest payment date shall be accompanied by payment, in funds
acceptable to the Company, of an amount equal to the interest and Liquidated
Damages, if any, otherwise payable on such interest payment date on the
principal amount being exchanged; provided however, that no such payment need be
made if there exists at the time of exchange a default in the payment of
interest or Liquidated Damages, if applicable, on the Exchangeable Notes. An
amount equal to such payment shall be paid by the Company on such interest
payment date to the holder of such Exchangeable Note at the close of business on
such record date; PROVIDED, HOWEVER, that if the Company defaults in the payment
of interest or Liquidated Damages, if applicable, on such interest payment date,
such amount shall be paid to the person who made such required payment. Except
as provided above in this Section 12.2, no adjustment shall be made for interest
and Liquidated Damages, if any, accrued on any Exchangeable Note exchanged or
for dividends on any shares issued upon the exchange of such Exchangeable Note
as provided in this Article 12.
SECTION 12.3 Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares shall be issued upon exchange of Exchangeable Notes. If more than one
Exchangeable Note shall be surrendered for exchange at one time by the same
holder, the number of full shares which shall be issuable upon exchange shall be
computed on the basis of the aggregate principal amount of
57
the Exchangeable Notes (or specified portions thereof to the extent permitted
hereby) so surrendered for exchange. If any fractional share of stock otherwise
would be issuable upon the exchange of any Exchangeable Note or Exchangeable
Notes, Navistar shall make an adjustment therefor in cash based upon the Sale
Price of the Common Stock as of the last Trading Day prior to the exchange date.
SECTION 12.4 Exchange Price.
The Exchange Price shall be as specified in the form of Exchangeable Note
attached as Exhibit A hereto, subject to adjustment as provided in this Article
12.
SECTION 12.5 Adjustment of Exchange Price.
The Exchange Price shall be adjusted from time to time as follows:
(a) If Navistar shall hereafter pay a dividend or make a distribution to
all holders of the outstanding Common Stock in shares of Common Stock, the
Exchange Price in effect at the opening of business on the date following the
date fixed for the determination of shareholders entitled to receive such
dividend or other distribution shall be reduced by multiplying such Exchange
Price by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the Record Date (as defined
in Section 12.5(g)) fixed for such determination and the denominator shall be
the sum of such number of shares and the total number of shares constituting
such dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the Record Date.
If any dividend or distribution of the type described in this Section 12.5(a) is
declared but not so paid or made, the Exchange Price shall again be adjusted to
the Exchange Price which would then be in effect if such dividend or
distribution had not been declared.
(b) If the outstanding shares of Common Stock shall be subdivided into a
greater number of shares of Common Stock, the Exchange Price in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately reduced, and, conversely, if the
outstanding shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the Exchange Price in effect at the opening of business
on the day following the day upon which such combination becomes effective shall
be proportionately increased, such reduction or increase, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(c) If Navistar shall issue rights or warrants to all or substantially all
holders of its outstanding shares of Common Stock entitling them to subscribe
for or purchase shares of Common Stock at a price per share less than the
Current Market Price (as defined in Section 12.5(g)) on the Record Date fixed
for the determination of shareholders entitled to receive such rights or
warrants, the Exchange Price shall be adjusted so that the same shall equal the
price determined by multiplying the Exchange Price in effect at the opening of
business on the date after such Record Date by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close of
business on the Record Date plus the number of shares which the aggregate
offering price of the total number of shares so offered would
58
purchase at such Current Market Price, and of which the denominator shall be the
number of shares of Common Stock outstanding on the close of business on the
Record Date plus the total number of additional shares of Common Stock so
offered for subscription or purchase. Such adjustment shall become effective
immediately after the opening of business on the day following the Record Date
fixed for determination of shareholders entitled to receive such rights or
warrants. To the extent that shares of Common Stock are not delivered pursuant
to such rights or warrants, upon the expiration or termination of such rights or
warrants the Exchange Price shall be readjusted to be the Exchange Price which
would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of delivery of only the number of
shares of Common Stock actually delivered. If such rights or warrants are not so
issued, the Exchange Price shall again be adjusted to be the Exchange Price
which would then be in effect if such date fixed for the determination of
shareholders entitled to receive such rights or warrants had not been fixed. In
determining whether any rights or warrants entitle the holders to subscribe for
or purchase shares of Common Stock at less than such Current Market Price, and
in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received for such rights or
warrants, with the value of such consideration, if other than cash, to be
determined by the Board of Directors.
(d) If Navistar shall, by dividend or otherwise, distribute to all holders
of its Common Stock shares of any class of capital stock of Navistar (other than
any dividends or distributions to which Section 12.5(a) applies) or evidences of
its indebtedness, cash or other assets (including securities, but excluding (i)
any rights or warrants of a type referred to in Section 12.5(c) and (ii)
dividends and distributions paid exclusively in cash) (the foregoing hereinafter
in this Section 12.5(d) called the "Securities"), then, in each such case, the
Exchange Price shall be reduced so that the same shall be equal to the price
determined by multiplying the Exchange Price in effect immediately prior to the
close of business on the Record Date (as defined in Section 12.5(g)) with
respect to such distribution by a fraction of which the numerator shall be the
Current Market Price (determined as provided in Section 12.5(g)) on such date
less the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the Board of
Directors) on such date of the portion of the Securities so distributed
applicable to one share of Common Stock and the denominator shall be such
Current Market Price, such reduction to become effective immediately prior to
the opening of business on the day following the Record Date; provided, however,
that in the event the then fair market value (as so determined) of the portion
of the Securities so distributed applicable to one share of Common Stock is
equal to or greater than the Current Market Price on the Record Date, in lieu of
the foregoing adjustment, adequate provision shall be made so that each holder
of Exchangeable Notes shall have the right to receive upon exchange of an
Exchangeable Note (or any portion thereof) the amount of Securities such holder
would have received had such holder exchanged such Exchangeable Note (or portion
thereof) immediately prior to such Record Date. If such dividend or distribution
is not so paid or made, the Exchange Price shall again be adjusted to be the
Exchange Price which would then be in effect if such dividend or distribution
had not been declared. If the Board of Directors determines the fair market
value of any distribution for purposes of this Section 12.5(d) by reference to
the actual or when issued trading market for any securities comprising all or
part of such distribution, it must in doing so consider the prices in such
market over the same period used in computing the Current Market Price pursuant
to Section 12.5(g) to the extent possible.
59
Notwithstanding any other provision of this Section 12.5(d) to the
contrary, rights, warrants, evidences of indebtedness, other securities, cash or
other assets (including, without limitation, any rights distributed pursuant to
any shareholder rights plan) shall be deemed not to have been distributed for
purposes of this Section 12.5(d) if Navistar makes proper provision so that each
holder of Exchangeable Notes who exchanges an Exchangeable Note (or any portion
thereof) after the date fixed for determination of shareholders entitled to
receive such distribution shall be entitled to receive upon such exchange, in
addition to the shares of Common Stock issuable upon such exchange, the amount
and kind of such distributions that such holder would have been entitled to
receive if such holder had, immediately prior to such determination date,
exchanged such Exchangeable Note into Common Stock.
Rights or warrants distributed by Navistar to all holders of Common Stock
entitling the holders thereof to subscribe for or purchase shares of Navistar's
capital stock (either initially or under certain circumstances), which rights or
warrants, until the occurrence of a specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Common Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this Section
12.5(d) (and no adjustment to the Exchange Price under this Section 12.5(d)
shall be required) until the occurrence of the earliest Trigger Event, whereupon
such rights and warrants shall be deemed to have been distributed and an
appropriate adjustment to the Exchange Price under this Section 12.5(d) shall be
made. If any such rights or warrants, including any such existing rights or
warrants distributed prior to the date of this Indenture, are subject to
subsequent events, upon the occurrence of each of which such rights or warrants
shall become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the occurrence of each such event shall be
deemed to be such date of issuance and record date with respect to new rights or
warrants (and a termination or expiration of the existing rights or warrants
without exercise by the holder thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger
Event with respect thereto, that was counted for purposes of calculating a
distribution amount for which an adjustment to the Exchange Price under this
Section 12.5 was made, (1) in the case of any such rights or warrants which
shall all have been redeemed or repurchased without exercise by any holders
thereof, the Exchange Price shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case may
be, as though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder or holders of Common Stock with respect to
such rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Stock as of the date of such redemption
or repurchase, and (2) in the case of such rights or warrants which shall have
expired or been terminated without exercise by any holders thereof, the Exchange
Price shall be readjusted as if such rights and warrants had not been issued.
For purposes of this Section 12.5(d) and Sections 12.5(a) and (c), any
dividend or distribution to which this Section 12.5(d) is applicable that also
includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock to which Section 12.5(c) applies (or both),
shall be deemed instead to be (1) a dividend or distribution of the evidences of
indebtedness, assets, shares of capital stock, rights or warrants other than
such shares of Common Stock or rights or warrants to which Section 12.5(c)
applies (and any Exchange Price reduction required by this Section 12.5(d) with
respect to such dividend or
60
distribution shall then be made) immediately followed by (2) a dividend or
distribution of such shares of Common Stock or such rights or warrants (and any
further Exchange Price reduction required by Sections 12.5(a) and (c) with
respect to such dividend or distribution shall then be made, except that (A) the
Record Date of such dividend or distribution shall be substituted as "the date
fixed for the determination of shareholders entitled to receive such dividend or
other distribution", "Record Date fixed for such determination" and "Record
Date" within the meaning of Section 12.5(a) and as "the date fixed for the
determination of shareholders entitled to receive such rights or warrants", "the
Record Date fixed for the determination of the shareholders entitled to receive
such rights or warrants" and "such Record Date" within the meaning of Section
12.5(c) and (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning of Section 12.5(a)).
(e) If Navistar shall, by dividend or otherwise, distribute cash to all
holders of its Common Stock (excluding any cash that is distributed upon a
merger, share exchange or consolidation to which Section 12.6 applies or as part
of a distribution referred to in Section 12.5(d)) in an aggregate amount that,
combined together with (1) the aggregate amount of any other such all-cash
distributions to all holders of its Common Stock within the 12 months preceding
the date of payment of such distribution, and in respect of which no adjustment
pursuant to this Section 12.5(e) has been made, and (2) the aggregate of any
cash plus the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the Board of
Directors) of consideration payable in respect of any tender offer by Navistar
or any of its subsidiaries for all or any portion of the Common Stock concluded
within the 12 months preceding the date of payment of such distribution, and in
respect of which no adjustment pursuant to Section 12.5(f) has been made,
exceeds 10% of the product of the Current Market Price (determined as provided
in Section 12.5(g)) on the Record Date with respect to such distribution times
the number of shares of Common Stock outstanding on such date, then, and in each
such case, immediately after the close of business on such date, the Exchange
Price shall be reduced so that it shall equal the price determined by
multiplying the Exchange Price in effect immediately prior to the close of
business on such Record Date by a fraction (i) the numerator of which shall be
equal to the Current Market Price on the Record Date less an amount equal to the
quotient of (x) the excess of such combined amount over such 10% and (y) the
number of shares of Common Stock outstanding on the Record Date and (ii) the
denominator of which shall be equal to the Current Market Price on such Record
Date; provided, however, that if the portion of the cash so distributed
applicable to one share of Common Stock is equal to or greater than the Current
Market Price of the Common Stock on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each holder of Exchangeable
Notes shall have the right to receive upon exchange of an Exchangeable Note (or
any portion thereof) the amount of cash such holder would have received had such
holder exchanged such Exchangeable Note (or portion thereof) immediately prior
to such Record Date. If such dividend or distribution is not so paid or made,
the Exchange Price shall again be adjusted to be the Exchange Price which would
then be in effect if such dividend or distribution had not been declared. Any
cash distribution to all holders of Common Stock as to which the Company makes
the election permitted by Section 12.5(m) and as to which the Company has
complied with the requirements of such Section shall be treated as not having
been made for all purposes of this Section 12.5(e).
61
(f) If a tender offer made by Navistar or any of its subsidiaries for all
or any portion of the Common Stock expires and such tender offer (as amended
upon the expiration thereof) requires the payment to shareholders (based on the
acceptance (up to any maximum specified in the terms of the tender offer) of
Purchased Shares (as defined below)) of an aggregate consideration having a fair
market value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a resolution of the Board of Directors) that,
combined together with (1) the aggregate of the cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors), as of the
expiration of such tender offer, of consideration payable in respect of any
other tender offers, by Navistar or any of its subsidiaries for all or any
portion of the Common Stock, expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no adjustment pursuant
to this Section 12.5(f) has been made and (2) the aggregate amount of any such
all-cash distributions to all holders of the Common Stock within 12 months
preceding the expiration of such tender offer and in respect of which no
adjustment pursuant to Section 12.5(e) has been made, exceeds 10% of the product
of the Current Market Price (determined as provided in Section 12.5(g)) as of
the last time (the "Expiration Time") tenders could have been made pursuant to
such tender offer (as it may be amended) times the number of shares of Common
Stock outstanding (including any tendered shares) on the Expiration Time, then,
and in each such case, immediately prior to the opening of business on the day
after the date of the Expiration Time, the Exchange Price shall be adjusted so
that the same shall equal the price determined by multiplying the Exchange Price
in effect immediately prior to close of business on the date of the Expiration
Time by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding (including any tendered shares) on the Expiration Time
multiplied by the Current Market Price of the Common Stock on the Trading Day
next succeeding the Expiration Time and the denominator shall be the sum of (x)
the fair market value (determined as aforesaid) of the aggregate consideration
payable to shareholders based on the acceptance (up to any maximum specified in
the terms of the tender offer) of all shares validly tendered and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased Shares) on the
Expiration Time and the Current Market Price of the Common Stock on the Trading
Day next succeeding the Expiration Time, such reduction (if any) to become
effective immediately prior to the opening of business on the day following the
Expiration Time. If the Company is obligated to purchase shares pursuant to any
such tender offer, but the Company is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, the
Exchange Price shall again be adjusted to be the Exchange Price which would then
be in effect if such tender offer had not been made. If the application of this
Section 12.5(f) to any tender offer would result in an increase in the Exchange
Price, no adjustment shall be made for such tender offer under this Section
12.5(f).
(g) For purposes of this Section 12.5, the following terms shall have the
meaning indicated:
(1) "closing price" with respect to any securities on any day
means the closing price on such day or, if no such sale takes place on such day,
the average of the reported high and low prices on such day, in each case on the
Nasdaq National Market or New York Stock Exchange, as applicable, or, if such
security is not listed or admitted to trading on such national
62
market or exchange, on the principal national securities exchange or quotation
system on which such security is quoted or listed or admitted to trading, or, if
not quoted or listed or admitted to trading on any national securities exchange
or quotation system, the average of the high and low prices of such security on
the over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available, in such manner as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of Directors
for that purpose, or a price determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a resolution of the
Board of Directors.
(2) "Current Market Price" means the average of the daily closing
prices per share of Common Stock for the 10 consecutive Trading Days immediately
prior to the date in question; provided, however, that (1) if the "ex" date (as
hereinafter defined) for any event (other than the issuance or distribution
requiring such computation) that requires an adjustment to the Exchange Price
pursuant to Sections 12.5(a), (b), (c), (d), (e) or (f) occurs during such 10
consecutive Trading Days, the closing price for each Trading Day prior to the
"ex" date for such other event shall be adjusted by multiplying such closing
price by the same fraction by which the Exchange Price is so required to be
adjusted as a result of such other event, (2) if the "ex" date for any event
(other than the issuance or distribution requiring such computation) that
requires an adjustment to the Exchange Price pursuant to Section 12.5(a), (b),
(c), (d), (e) or (f) occurs on or after the "ex" date for the issuance or
distribution requiring such computation and prior to the day in question, the
closing price for each Trading Day on and after the "ex" date for such other
event shall be adjusted by multiplying such closing price by the reciprocal of
the fraction by which the Exchange Price is so required to be adjusted as a
result of such other event, and (3) if the "ex" date for the issuance or
distribution requiring such computation is prior to the day in question, after
taking into account any adjustment required pursuant to clause (1) or (2) of
this proviso, the closing price for each Trading Day on or after such "ex" date
shall be adjusted by adding thereto the amount of any cash and the fair market
value (as determined by the Board of Directors in a manner consistent with any
determination of such value for purposes of Sections 12.5(d) or (f), whose
determination shall be conclusive and described in a resolution of the Board of
Directors) of the evidences of indebtedness, shares of capital stock or assets
being distributed applicable to one share of Common Stock as of the close of
business on the day before such "ex" date. For purposes of any computation under
Section 12.5(f), the Current Market Price on any date shall be deemed to be the
average of the daily closing prices per share of Common Stock for such day and
the next two succeeding Trading Days; provided, however, that if the "ex" date
for any event (other than the tender offer requiring such computation) that
requires an adjustment to the Exchange Price pursuant to Section 12.5(a), (b),
(c), (d), (e) or (f) occurs on or after the Expiration Time for the tender or
exchange offer requiring such computation and prior to the day in question, the
closing price for each Trading Day on and after the "ex" date for such other
event shall be adjusted by multiplying such Closing Price by the reciprocal of
the fraction by which the Exchange Price is so required to be adjusted as a
result of such other event. For purposes of this paragraph, the term "ex" date,
(1) when used with respect to any issuance or distribution, means the first date
on which the Common Stock trades regular way on the relevant exchange or in the
relevant market from which the closing price was obtained without the right to
receive such issuance or distribution, (2) when used with respect to any
subdivision or combination of shares of Common Stock, means the first date on
which the Common Stock trades regular way on such exchange or in such market
after the time at which such subdivision
63
or combination becomes effective, and (3) when used with respect to any tender
or exchange offer means the first date on which the Common Stock trades regular
way on such exchange or in such market after the Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive adjustments to the Exchange
Price are called for pursuant to this Section 12.5, such adjustments shall be
made to the Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 12.5 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors.
(3) "fair market value" shall mean the amount which a willing
buyer would pay a willing seller in an arm's length transaction.
(4) "Record Date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of Common Stock
have the right to receive any cash, securities or other property or in which the
Common Stock (or other applicable security) is exchanged for or exchanged into
any combination of cash, securities or other property, the date fixed for
determination of shareholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).
(h) The Company may make such reductions in the Exchange Price, in
addition to those required by Sections 12.5(a), (b), (c), (d), (e) and (f), as
the Board of Directors considers to be advisable to avoid or diminish any income
tax to holders of Common Stock or rights to purchase Common Stock resulting from
any dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes.
Navistar from time to time may, to the extent permitted by law, reduce the
Exchange Price by any amount for any period of at least 20 days, if the Board of
Directors has made a determination that such reduction would be in Navistar's
best interests, which determination shall be conclusive and described in a
resolution of the Board of Directors. The reduction in Exchange Price shall be
irrevocable during this period. Whenever the Exchange Price is reduced pursuant
to the preceding sentence, Navistar shall mail to the holders of Exchangeable
Notes at his or her last address appearing on the Register a notice of the
reduction at least 15 days prior to the date the reduced Exchange Price takes
effect, and such notice shall state the reduced Exchange Price and the period
during which it will be in effect.
(i) No adjustment in the Exchange Price shall be required unless such
adjustment would require an increase or decrease of at least 1% of the Exchange
Price then in effect; provided, however, that any adjustments which by reason of
this Section 12.5(i) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Article 12 shall be made by Navistar and shall be made to the nearest cent or to
the nearest one hundredth of a share, as the case may be.
No adjustment need be made for a change in the par value or no par value of
the Common Stock.
(j) Whenever the Exchange Price is adjusted as herein provided, Navistar
shall promptly file with the Trustee and any Exchange Agent other than the
Trustee an Officers' Certificate setting forth the Exchange Price after such
adjustment and setting forth a brief
64
statement of the facts requiring such adjustment. Promptly after delivery of
such certificate, Navistar shall prepare a notice of such adjustment of the
Exchange Price setting forth the adjusted Exchange Price and the date on which
each adjustment becomes effective and shall mail such notice of such adjustment
of the Exchange Price to each holder of Exchangeable Notes at his or her last
address appearing on the Register of holders maintained for that purpose within
20 days of the effective date of such adjustment. Failure to deliver such notice
shall not affect the legality or validity of any such adjustment.
(k) In any case in which this Section 12.5 provides that an adjustment
shall become effective immediately after a Record Date for an event, Navistar
may defer until the occurrence of such event issuing to the holder of any
Exchangeable Note exchanged after such Record Date and before the occurrence of
such event the additional shares of Common Stock issuable upon such exchange by
reason of the adjustment required by such event over and above the Common Stock
issuable upon such exchange before giving effect to such adjustment.
(l) For purposes of this Section 12.5, the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
Navistar but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. Navistar shall not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of Navistar.
(m) In lieu of making any adjustment to the Exchange Price pursuant to
Section 12.5(e), Navistar may elect to reserve the amount and kind of
distributions for distribution to the holders of Exchangeable Notes upon the
exchange of the Exchangeable Notes so that any such holder exchanging
Exchangeable Notes will receive upon such exchange, in addition to the shares of
Common Stock and other items to which such holder is entitled, the full amount
and kind of distributions which such holder would have received if such holder
had, immediately prior to the Record Date for such distribution, exchanged its
Exchangeable Notes into Common Stock, together with any interest accrued with
respect to such amount, in accordance with this Section 12.5(m). Navistar may
make such election by providing an Officers' Certificate to the Trustee to such
effect on or prior to the payment date for any such distribution and depositing
with the Trustee on or prior to such date an amount and kind of distribution
equal to the aggregate amount that the holders of Exchangeable Notes would have
received if such holders had, immediately prior to the Record Date for such
distribution, exchanged all of the Exchangeable Notes into Common Stock. Any
such funds so deposited by Navistar with the Trustee shall be invested by the
Trustee pursuant to arrangements reasonably satisfactory to the Trustee in U.S.
Government Obligations with a maturity not more than three (3) months from the
date of issuance. Upon exchange of Exchangeable Notes by a holder thereof, such
holder shall be entitled to receive, in addition to the Common Stock issuable
upon exchange, an amount of cash equal to the amount such holder would have
received if such holder had, immediately prior to the Record Date for such
distribution, exchanged its Exchangeable Note into Common Stock, along with such
holder's pro-rata share of any accrued interest earned as a consequence of the
investment of such funds. Promptly after making an election pursuant to this
Section 12.5(m), Navistar shall give or shall cause to be given notice to all
holders of Exchangeable Notes of such election, which notice shall state the
amount of cash per $1,000 principal amount of Exchangeable Notes such holders
shall be entitled to receive (excluding interest) upon exchange of the
Exchangeable Notes as a consequence of Navistar having made such election.
65
SECTION 12.6 Effect of Reclassification, Consolidation, Merger or Sale.
If any of the following events occur: (i) any reclassification or change of
the outstanding shares of Common Stock (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), (ii) any consolidation, merger, share
exchange or combination of Navistar with another corporation as a result of
which holders of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock, or (iii) any sale or conveyance of the properties and assets
of Navistar as an entirety or substantially as an entirety to any other
corporation as a result of which holders of Common Stock shall be entitled to
receive stock, securities or other property or assets (including cash) with
respect to or in exchange for such Common Stock, then Navistar or the successor
or purchasing corporation, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the TIA as in force at the date
of execution of such supplemental indenture if such supplemental indenture is
then required to so comply) providing that the Exchangeable Notes shall be
exchangeable into the kind and amount of shares of stock and other securities or
property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, share exchange, combination, sale or conveyance
by a holder of a number of shares of Common Stock issuable upon exchange of the
Exchangeable Notes (assuming, for such purposes, a sufficient number of
authorized shares of Common Stock available to exchange all such Exchangeable
Notes) immediately prior to such reclassification, change, consolidation,
merger, share exchange, combination, sale or conveyance assuming such holder of
Common Stock did not exercise his or her rights of election, if any, as to the
kind or amount of securities, cash or other property receivable upon such
consolidation, merger, share exchange, sale or conveyance (provided that, if the
kind or amount of securities, cash or other property receivable upon such
consolidation, merger, share exchange, sale or conveyance is not the same for
each share of Common Stock in respect of which such rights of election have not
been exercised ("non- electing share"), then, for the purposes of this Section
12.6, the kind and amount of securities, cash or other property receivable upon
such consolidation, merger, share exchange, sale or conveyance for each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares). Such supplemental indenture
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 12. If, in the case
of any such reclassification, change, consolidation, merger, share exchange,
combination, sale or conveyance, the stock or other securities and assets
receivable thereupon by a holder of shares of Common Stock includes shares of
stock or other securities and assets of a corporation other than the successor
or purchasing corporation, as the case may be, in such reclassification, change,
consolidation, merger, share exchange, combination, sale or conveyance, then
such supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the holders
of the Exchangeable Notes as the Board of Directors shall reasonably consider
necessary by reason of the foregoing.
Navistar shall cause notice of the execution of such supplemental indenture
to be mailed to each holder of Exchangeable Notes at his or her address
appearing on the Register within 20 days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such
supplemental indenture.
66
The above provisions of this Section 12.6 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, share exchanges,
combinations, sales and conveyances.
If this Section 12.6 applies to any event or occurrence, Section 12.5 shall
not apply.
SECTION 12.7 Taxes on Shares Issued.
The issue of stock certificates on exchanges of Exchangeable Notes shall be
made without charge to the exchanging holder except for any withholding, tax or
duty in respect of the issue thereof. Neither the Company nor Navistar shall,
however, be required to pay any withholding, tax or duty which may be required
in respect of any Exchangeable Note exchanged, and neither the Company nor
Navistar shall be required to issue or deliver any such stock certificate unless
and until the person or persons requesting the issue thereof shall have paid to
Navistar the amount of such withholding, tax or duty or shall have established
to the satisfaction of Navistar that such withholding, tax or duty has been
paid.
SECTION 12.8 Reservation of Shares; Shares to Be Fully Paid; Listing of
Common Stock.
Navistar shall provide, free from preemptive rights, out of its authorized
but unissued shares or shares held in treasury, sufficient shares to provide for
the exchange of the Exchangeable Notes from time to time as such Exchangeable
Notes are presented for exchange.
Before taking any action which would cause an adjustment reducing the
Exchange Price below the then par value, if any, of the shares of Common Stock
issuable upon exchange of the Exchangeable Notes, Navistar shall take all
corporate action which may, in the opinion of its counsel, be necessary in order
that Navistar may validly and legally issue shares of such Common Stock at such
adjusted Exchange Price.
Navistar covenants that all shares of Common Stock issued upon exchange of
Exchangeable Notes will be fully paid and non- assessable by Navistar and free
from all taxes, liens and charges with respect to the issue thereof.
Navistar further covenants that no later than the date the Shelf
Registration Statmeent (as defined in the Registration Rights Agreement) is
declared effective and as long as the Common Stock is listed on the New York
Stock Exchange, or its successor, Navistar shall cause all Common Stock issuable
upon exchange of the Exchangeable Notes to be eligible for such listing in
accordance with, and at the times required under, the requirements of such
market, and if at any time thereafter the Common Stock becomes quoted on the
Nasdaq National Market or listed on any other national securities exchange,
Navistar shall cause all Common Stock issuable upon exchange of the Exchangeable
Notes to be so quoted or listed and kept so quoted or listed.
SECTION 12.9 Responsibility of Trustee.
The Trustee shall not at any time be under any duty of responsibility to
any holders of Exchangeable Notes to determine whether any facts exist which may
require any adjustment of the Exchange Price, or with respect to the nature or
extent or calculation of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture
67
provided to be employed, in making the same. The Trustee shall not be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at any time
be issued or delivered upon the exchange of any Exchangeable Note; and the
Trustee makes no representations with respect thereto. Subject to the provisions
of Section 7.1, the Trustee shall not be responsible for any failure of the
Company or Navistar to issue, transfer or deliver any shares of Common Stock or
stock certificates or other securities or property or cash upon the surrender of
any Exchangeable Note for the purpose of exchange or to comply with any of the
duties, responsibilities or covenants of the Company or Navistar contained in
this Article 12. Without limiting the generality of the foregoing, the Trustee
shall not have any responsibility to determine the correctness of any provisions
contained in any supplemental indenture entered into pursuant to Section 12.6
relating either to the kind or amount of shares of stock or securities or
property (including cash) receivable by holders of Exchangeable Notes upon the
exchange of their Exchangeable Notes after any event referred to in such Section
12.6 or to any adjustment to be made with respect thereto, but, subject to the
provisions of Section 7.1, may accept as conclusive evidence of the correctness
of any such provisions, and shall be protected in relying upon, the Officers'
Certificate and Opinion of Counsel (which Navistar shall be obligated to file
with the Trustee prior to the execution of any such supplemental indenture) with
respect thereto.
SECTION 12.10 Notice to Holders Prior to Certain Actions.
If:
(a) Navistar declares a dividend (or any other distribution) on its Common
Stock (other than in cash out of retained earnings or other than a dividend that
results in an adjustment in the Exchange Price pursuant to Section 12.5 as to
which Navistar has made an election in accordance with Section 12.5(m));
(b) Navistar authorizes the granting to all or substantially all of the
holders of its Common Stock of rights or warrants to subscribe for or purchase
any share of any class of Common Stock or any other rights or warrants (other
than rights or warrants referred to in the second paragraph of Section 12.5(d));
(c) there is any reclassification of the Common Stock (other than a
subdivision or combination of outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value), or
any consolidation, merger or share exchange to which Navistar is a party and for
which approval of any shareholders of Navistar is required, or the sale or
transfer of all or substantially all of the assets of Navistar; or
(d) there is any voluntary or involuntary dissolution, liquidation or
winding-up of Navistar;
then Navistar shall cause to be filed with the Trustee and to be mailed to each
holder of Exchangeable Notes at his or her address appearing on the Register
maintained for that purpose as promptly as possible but in any event at least 15
days prior to the applicable date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date
as of which
68
the holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding-up is expected to become effective or occur,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, share
exchange, sale, transfer, dissolution, liquidation or winding-up. Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of such dividend, distribution, reclassification, consolidation,
merger, share exchange, sale, transfer, dissolution, liquidation or winding-up.
SECTION 12.11 Restriction on Common Stock Issuable Upon Exchange.
(a) Shares of Common Stock to be issued upon exchange of Exchangeable
Notes prior to the effectiveness of a Shelf Registration Statement shall be
physically delivered in certificated form to the holders exchanging such
Securities, and the certificate representing such shares of Common Stock shall
bear the Restricted Common Stock Legend unless removed in accordance with
Section 12.11(c).
(b) If (i) shares of Common Stock to be issued upon exchange of an
Exchangeable Note prior to the effectiveness of a Shelf Registration Statement
are to be registered in a name other than that of the holder of such
Exchangeable Note or (ii) shares of Common Stock represented by a certificate
bearing the Restricted Common Stock Legend are transferred subsequently by such
holder, then, unless the Shelf Registration Statement has become effective and
such shares are being transferred pursuant to the Shelf Registration Statement,
the holder must deliver to the transfer agent for the Common Stock a certificate
in substantially the form of Exhibit C as to compliance with the restrictions on
transfer applicable to such shares of Common Stock, and neither the transfer
agent nor the registrar for the Common Stock shall be required to register any
transfer of such Common Stock not so accompanied by a properly completed
certificate.
(c) Except in connection with a Shelf Registration Statement, if
certificates representing shares of Common Stock are issued upon the
registration of transfer, exchange or replacement of any other certificate
representing shares of Common Stock bearing the Restricted Common Stock Legend,
or if a request is made to remove such Restricted Common Stock Legend from
certificates representing shares of Common Stock, the certificates so issued
shall bear the Restricted Common Stock Legend, or the Restricted Common Stock
Legend shall not be removed, as the case may be, unless there is delivered to
Navistar such satisfactory evidence, which, in the case of a transfer made
pursuant to Rule 144 under the Securities Act, may include an opinion of counsel
as may be reasonably required by Navistar, that neither the legend nor the
restrictions on transfer set forth therein are required to ensure that transfers
thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under
the Securities Act or that such shares of Common Stock are securities that are
not "restricted" within the meaning of Rule 144 under the Securities Act. Upon
provision to Navistar of such reasonably satisfactory evidence, Navistar shall
cause the transfer agent for the Common Stock to countersign and deliver
certificates representing shares of Common Stock that do not bear the legend.
69
ARTICLE 13
ASSUMPTION
SECTION 13.1 Assumption of the Notes
Navistar may, at its option, assume the obligations of the Company under
the Exchangeable Notes and this Indenture provided that:
(a) no Ratings Decline will result;
(b) no Event of Default under this Indenture shall have occurred and be
continuing or shall result from the assumption;
(c) Navistar assumes the obligations of the Company under the Exchangeable
Notes and this Indenture and the performance of each of the Company's covenants
under the Exchangeable Notes and this Indenture except as provided below,
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee; and
(d) Navistar shall have delivered to the Trustee an officers' certificate
and an Opinion of counsel, each stating that such transaction and the
supplemental transaction comply with the indenture and all conditions precedent
in the indenture relating to such transaction have been satisfied.
Upon the assumption, the Exchangeable Notes will be general unsecured
obligations of Navistar and will be subordinated in right of payment to all of
the Company's existing and future senior indebtedness, and Navistar will succeed
to, and be substituted for the Company, and may exercise the Company's right and
power, under this Indenture with the same effect as if Navistar had been named
as the Company in this Indenture and all references in this Indenture to the
Company shall be to Navistar, except that (1) clauses (1)(b), (2)(b) and (3)(b)
in the definition of Change of Control shall not apply to Navistar as successor
and (2) Navistar, as successor, shall be permitted to effect a Permitted Joint
Venture notwithstanding the prohibition on the Company from selling, assigning,
transferring, leasing, conveying or otherwise disposing of all or substantially
all of its assets, and thereafter, the Company will be relieved of all further
obligations and covenants under the Exchangeable Notes and this Indenture.
70
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed and attested, all as of the date first above written, signifying their
agreements contained in this Indenture.
NAVISTAR FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
NAVISTAR INTERNATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Treasurer
BNY MIDWEST TRUST COMPANY, as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
EXHIBIT A
(Face of Security)
[Global Securities Legend]
[The following legend shall appear on the face of each Global Security:
THIS EXCHANGEABLE NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY,
THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS EXCHANGEABLE NOTE
FOR ALL PURPOSES.]
[The following legend shall appear on the face of each Global Security for
which The Depository Trust Company is to be the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY THE AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED
EXCHANGEABLE NOTES IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES
REFERRED TO IN THE INDENTURE, THIS GLOBAL SECURITY 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 OR SUCH
SUCCESSOR DEPOSITARY.]
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE
ISSUANCE HEREOF (OR ANY APPLICABLE PREDECESSOR SECURITY HEREOF) OR (Y) BY ANY
HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE MEANING OF RULE 144 UNDER THE
SECURITIES ACT) OF THE COMPANY AT ANY TIME DURING THE THREE
A-1
MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE
COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION
(AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF
PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN
ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY
HEDGING TRANSACTION WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE
UPON EXCHANGE OF THIS SECURITY EXCEPT AS PERMITTED BY THE SECURITIES ACT.
A-2
No. _______ $
CUSIP ___________
NAVISTAR FINANCIAL CORPORATION
4.75 % SUBORDINATED EXCHANGEABLE NOTE DUE 2009
Navistar Financial Corporation promises to pay to
or registered assigns,
the principal sum of on April 1, 2009
Interest Payment Dates: April 1 and October 1, commencing October 1, 2002
Regular Record Dates: March 15, and September 15.
NAVISTAR FINANCIAL CORPORATION
By:
--------------------------------------
Title:
Certificate of Authentication
This is one of the Exchangeable Notes described in the within- mentioned
Indenture.
BNY MIDWEST TRUST COMPANY,
as Trustee
By:
--------------------------------
Authorized Signatory
Dated:
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(Back of Security)
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NAVISTAR FINANCIAL CORPORATION
4.75% SUBORDINATED EXCHANGEABLE NOTE DUE 2009
1. INTEREST.
Navistar Financial Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this
Exchangeable Note at the rate per annum shown above. The Company will pay
interest semi-annually in arrears on April 1 and October 1 of each year,
beginning October 1, 2002. Interest on the Exchangeable Notes will accrue
from the most recent interest payment date to which interest has been paid
or, if no interest has been paid, from March 25, 2002. Interest (including
any Liquidated Damages) will be computed on the basis of a 360-day year
composed of twelve 30-day months and the actual number of days elapsed in
any partial month.
2. METHOD OF PAYMENT. The Company will pay interest (and Liquidated Damages
payable by it and Navistar International Corporation ("Navistar") shall pay
Liquidated Damages payable by it, if any) on the Exchangeable Notes (except
defaulted interest) to the person in whose name each Exchangeable Note is
registered at the close of business on the March 15 or September 15
immediately preceding the relevant interest payment date (each a "Regular
Record Date") (other than with respect to an Exchangeable Note or portion
thereof redeemed or repurchased in connection with a Fundamental Change on
a repurchase date, during the period from the close of business on a
Regular Record Date to (but excluding) the next succeeding interest payment
date, in which case accrued interest (and Liquidated Damages, if any) shall
be payable (unless such Exchangeable Note or portion thereof is exchanged)
to the holder of the Exchangeable Note or portion thereof redeemed or
repurchased in accordance with the applicable repurchase provisions of the
Indenture). The holder must surrender Exchangeable Notes to a Paying Agent
to collect principal payments. The Company will pay the principal of, and
interest (including Liquidated Damages payable by it and Navistar shall pay
Liquidated Damages payable by it, if any) on, the Exchangeable Notes at the
office or agency of the Company maintained for such purpose, in money of
the United States that at the time of payment is legal tender for payment
of public and private debts. Until otherwise designated by the Company, the
Company's office or agency maintained for such purpose will be the
principal Corporate Trust Office of the Trustee (as defined below).
However, the Company may pay principal, and interest (including Liquidated
Damages payable by it and Navistar shall pay Liquidated Damages payable by
it, if any) by check payable in such money, and may mail such check to the
holders of the Exchangeable Notes at their respective addresses as set
forth in the Register of holders of Exchangeable Notes.
3. PAYING AGENT AND REGISTRAR. BNY Midwest Trust Company (together with any
successor Trustee under the Indenture referred to below, the "Trustee"),
will act as Paying Agent and Registrar. The Company may change the Paying
Agent, Registrar or co-registrar without prior notice. Subject to certain
limitations in the Indenture, the Company or any of its subsidiaries may
act in any such capacity.
4. INDENTURE. The Company issued the Exchangeable Notes under an Indenture
dated as of March 25, 2002 (the "Indenture") by and between the Company,
Navistar and the Trustee. The terms of the Exchangeable Notes include those
stated in the Indenture and
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those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code (Sections 77aaa-77bbbb) (the "TIA") as in effect on the
date of the Indenture. The Exchangeable Notes are subject to, and qualified
by, all such terms, certain of which are summarized hereon, and holders are
referred to the Indenture and the TIA for a statement of such terms. The
Exchangeable Notes are unsecured general obligations of the Company limited
to (except as otherwise provided in the Indenture) $220,000,000 in
aggregate principal amount. Capitalized terms not defined below have the
same meaning as is given them in the Indenture.
5. FUNDAMENTAL CHANGE. Upon the occurrence of a Fundamental Change, the
Company shall make a Fundamental Change Offer to repurchase all outstanding
Exchangeable Notes at a price equal to 100% of the aggregate principal
amount of the Exchangeable Notes, plus (subject to paragraph 2) accrued and
unpaid interest (and Liquidated Damages, if any) to, but excluding, the
date of repurchase, such offer to be made as provided in the Indenture. To
accept the Fundamental Change Offer, the holder hereof must comply with the
terms thereof, including surrendering this Exchangeable Note, with the
"Option of Holder to Elect Repurchase" portion hereof completed, to the
Company, a depositary, if appointed by the Company, or a Paying Agent, at
the address specified in the notice of the Fundamental Change Offer mailed
to holders as provided in the Indenture, prior to termination of the
Fundamental Change Offer.
6. DENOMINATIONS, TRANSFER AND EXCHANGE. The Exchangeable Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Exchangeable Notes may be registered
and Exchangeable Notes may be exchanged as provided in the Indenture. As a
condition of transfer, the Registrar and the Trustee may require a holder,
among other things, to furnish appropriate endorsements and transfer
documents, and the Company and the Registrar may require a holder to pay
any taxes and fees required by law or permitted by the Indenture. The
Company or the Registrar need not exchange or register the transfer of any
Exchangeable Note or portion of an Exchangeable Note submitted for
repurchase.
7. PERSONS DEEMED OWNERS. The registered holder of an Exchangeable Note may be
treated as its owner for all purposes.
8. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Indenture or the
Exchangeable Notes may be amended or supplemented with the consent of the
holders of at least a majority in principal amount of the then outstanding
Exchangeable Notes, and any existing default may be waived with the consent
of the holders of a majority in principal amount of the then outstanding
Exchangeable Notes.
Without the consent of any holder, the Indenture or the Exchangeable Notes
may be amended to: (a) cure any ambiguity or correct or supplement any defective
or inconsistent provision contained in the Indenture, or make any other changes
in the provisions of the Indenture which the Company and the Trustee may deem
necessary or desirable provided such amendment does not materially and adversely
affect the legal rights under the Indenture of the holders of Exchangeable
Notes; (b) provide for uncertificated Exchangeable Notes in addition to or in
place of certificated Exchangeable Notes; (c) evidence the succession of another
person to
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the Company and providing for the assumption by such successor of the covenants
and obligations of the Company thereunder and in the Exchangeable Notes as
permitted by Section 5.1 of the Indenture; (d) provide for exchange rights
and/or repurchase rights of holders of Exchangeable Notes in the event of
consolidation, merger, share exchange or sale of all or substantially all of the
assets of the Company as required to comply with Sections 5.1 and/or 12.6 of the
Indenture; (e) reduce the Exchange Price; (f) evidence and provide for the
acceptance of the appointment under the Indenture of a successor Trustee; (g)
make any change that would provide any additional rights or benefits to the
holders of Exchangeable Notes or that does not adversely affect the legal rights
under the Indenture of any such holder; or (h) comply with the requirements of
the Commission in order to effect or maintain the qualification of the Indenture
under the TIA.
Without the consent of each holder affected, an amendment or waiver may not
(with respect to any Exchangeable Notes held by a non-consenting holder): (a)
reduce the principal amount of Exchangeable Notes whose holders must consent to
an amendment, supplement or waiver; (b) reduce the principal of or change the
fixed maturity of any Exchangeable Note; (c) reduce the rate of or change the
time for payment of interest, including defaulted interest, or Liquidated
Damages on any Exchangeable Notes; (d) waive a Default or Event of Default in
the payment of principal of, or interest or Liquidated Damages on, the
Exchangeable Notes (except a rescission of acceleration of the Exchangeable
Notes by the holders of at least a majority in aggregate principal amount of the
Exchangeable Notes and a waiver of the payment default that resulted from such
acceleration); (e) make the principal of, or interest or Liquidated Damages on,
any Exchangeable Note payable in money other than as provided for in the
Indenture and in the Exchangeable Notes; (f) make any change in the provisions
of the Indenture relating to waivers of past Defaults or the rights of holders
of Exchangeable Notes to receive payments of principal of, or interest or
Liquidated Damages, on the Exchangeable Notes; (g) except as permitted by the
Indenture (including Section 9.1(a)), increase the Exchange Price or modify the
provisions of the Indenture relating to exchange of the Exchangeable Notes in a
manner adverse to the holders thereof or (h) make any change to the ability of
holder of Exchangeable Notes to enforce their rights under the Indenture or the
provisions of clauses (a) through (h) of Section 9.2 of the Indenture.
9. DEFAULTS AND REMEDIES. An Event of Default is: (a) default in payment of
the principal of, the Exchangeable Notes, when due at maturity, upon
repurchase, upon acceleration or otherwise; (b) default for 30 days or more
in payment of any installment of interest or Liquidated Damages on the
Exchangeable Notes; (c) default by the Company for 60 days or more after
notice in the observance or performance of any other covenants in the
Indenture; (d) default in the payment of the Fundamental Change Payment in
respect of the Exchangeable Notes on the date therefor; (e) failure to
provide timely notice of a Fundamental Change; (f) certain events involving
bankruptcy, insolvency or reorganization of the Company; or (g) the Company
or any of its subsidiaries fails to pay, at final maturity, indebtedness
(other than indebtedness incurred in connection with a Qualified
Securitization Transaction) that is in excess of $50 million principal
amount, or acceleration resulting from an Event of Default of any
indebtedness (other than indebtedness incurred in connection with a
Qualified Securitization Transaction) of the Company or any of its
subsidiaries in an aggregate principal amount in excess of $50 million. If
an Event of Default occurs and is continuing, the Trustee or the holders of
at
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least 25% in principal amount of the then outstanding Exchangeable Notes
may declare the unpaid principal of, and accrued and unpaid interest and
Liquidated Damages, if any, on, all Exchangeable Notes then outstanding to
be due and payable immediately, except that in the case of an Event of
Default arising from certain events of bankruptcy, insolvency, or
reorganization with respect to the Company, all outstanding Exchangeable
Notes become due and payable without further action or notice. Holders of
Exchangeable Notes may not enforce the Indenture or the Exchangeable Notes
except as provided in the Indenture. The Trustee may require an indemnity
satisfactory to it before it enforces the Indenture or the Exchangeable
Notes. Subject to certain limitations, holders of a majority in principal
amount of the then outstanding Exchangeable Notes may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from holders
notice of any continuing default (except a default in payment of principal,
interest or Liquidated Damages, if applicable) if it determines that
withholding notice is in their interests. The Company must furnish annual
compliance certificates to the Trustee.
10. TRUSTEE DEALINGS WITH THE COMPANY AND NAVISTAR. The Trustee or any of its
Affiliates, in their individual or any other capacities, may make or
continue loans to or guaranteed by, accept deposits from and perform
services for the Company or Navistar or their respective Affiliates and may
otherwise deal with the Company or Navistar or their respective Affiliates
as if it were not Trustee.
11. NO RECOURSE AGAINST OTHERS. No director, officer, employee, shareholder or
Affiliate, as such, of the Company or Navistar shall have any liability for
any obligations of the Company or Navistar under the Exchangeable 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 an Exchangeable
Note waives and releases all such liability. The waiver and release are
part of the consideration for the Exchangeable Notes.
12. AUTHENTICATION. This Exchangeable Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
13. ABBREVIATIONS. Customary abbreviations may be used in the name of a holder
or an assignee, such as: TEN CO = 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.
14. EXCHANGE. Subject to and upon compliance with the provisions of the
Indenture, the registered holder of this Exchangeable Note has the right at
any time on or before the close of business on the last Trading Day prior
to the Maturity Date (or (a) in case this Exchangeable Note or any portion
hereof is subject to a duly completed election for repurchase, on or before
the close of business on the Fundamental Change Payment Date (unless the
Company defaults in payment due upon repurchase or such holder elects to
withdraw the submission of such election to repurchase) or (b) in case this
Exchangeable Note or any portion hereof is subject to a notice of
redemption under Section 3.4 of the Indenture, on or before the close of
business on the business day preceding the applicable redemption date) to
exchange the principal amount hereof, or any portion of such principal
amount which is $1,000 or an integral multiple thereof, into that number of
fully
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paid and non-assessable shares of common stock of Navistar International
Corporation, a Delaware corporation, ("Common Stock") obtained by dividing
the principal amount of the Exchangeable Note or portion thereof to be
exchanged by the Exchange Price of $55.73 per share, as adjusted from time
to time as provided in the Indenture (the "Exchange Price"), upon surrender
of this Exchangeable Note to Navistar at the office or agency maintained
for such purpose (and at such other offices or agencies designated for such
purpose by Navistar), accompanied by written notice of exchange duly
executed (and if the shares of Common Stock to be issued on exchange are to
be issued in any name other than that of the registered holder of this
Exchangeable Note by instruments of transfer, in form satisfactory to the
Company and Navistar, duly executed by the registered holder or its duly
authorized attorney) and, in case such surrender shall be made during the
period from the close of business on the Regular Record Date immediately
preceding any Interest Payment Date through the close of business on the
last Trading Day immediately preceding such Interest Payment Date, also
accompanied by payment, in funds acceptable to the Company, of an amount
equal to the interest and Liquidated Damages, if any, otherwise payable on
such Interest Payment Date on the principal amount of this Exchangeable
Note then being exchanged. Subject to the aforesaid requirement for a
payment in the event of exchange after the close of business on a Regular
Record Date immediately preceding an Interest Payment Date, no adjustment
shall be made on exchange for interest or Liquidated Damages accrued hereon
or for dividends on Common Stock delivered on exchange. The right to
exchange this Exchangeable Note is subject to the provisions of the
Indenture relating to exchange rights in the case of certain
consolidations, mergers, share exchanges or sales or transfers of
substantially all Navistar's assets.
Navistar shall not issue fractional shares or scrip representing fractions
of shares of Common Stock upon any such exchange, but shall pay cash in lieu of
such fractional shares in the manner described in the Indenture.
15. REGISTRATION AGREEMENT. The holder of this Exchangeable Note is entitled to
the benefits of a Registration Agreement, dated as of March 25, 2002, by
and among the Company, Navistar and the Initial Purchasers (the
"Registration Agreement"). Pursuant to the Registration Agreement, the
Company and Navistar have agreed for the benefit of the holders of the
Exchangeable Notes and the Common Stock issued and issuable upon exchange
of the Exchangeable Notes, that (i) they will, at their cost, within 90
days after the Issue Date, file a shelf registration statement (the "Shelf
Registration Statement") with the Securities and Exchange Commission (the
"Commission") with respect to resales of the Exchangeable Notes and the
Common Stock issuable upon exchange thereof, (ii) the Company and Navistar
will use their reasonable best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission under the Securities
Act within 210 days after the Issue Date and (iii) the Company and Navistar
will use their reasonable best efforts to keep such Shelf Registration
Statement continuously effective under the Securities Act until the
earliest of (1) the latest of the second anniversary of (a) the Issue Date,
(b) the last date on which any Exchangeable Notes are issued upon exercise
of the Initial Purchasers' over-allotment option or (c) the last date on
which any unregistered Navistar Common Stock is issued or issuable in
exchange for Exchangeable Notes; (2) the date on which the Exchangeable
Notes and the
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unregistered Common Stock issuable upon their exchange may be sold by
non-affiliates of Navistar and Navistar Financial pursuant to paragraph (k)
of Rule 144 (or any successor provision) promulgated by the SEC under the
Securities Act; (3) the date as of which all the Exchangeable Notes and the
Common Stock issuable upon their exchange have been sold under Rule 144
under the Securities Act (or any similar provision then in force) or (4)
the date as of which all the Exchangeable Notes or the Common Stock
issuable upon their exchange have been sold pursuant to the Shelf
Registration.
If the Shelf Registration Statement (i) is not filed with the Commission on
or prior to 90 days, or has not been declared effective by the Commission within
210 days, after the Issue Date or (ii) is filed and declared effective but shall
thereafter cease to be effective (without being succeeded immediately by a
replacement shelf registration statement filed and declared effective) or cease
to be usable (including, without limitation, as a result of a Suspension Period
as defined below) for the offer and sale of Transfer Restricted Securities (as
defined below) for a period of time (including any Suspension Period) which
shall exceed 60 days in the aggregate in any 12-month period during the period
beginning on the Issue Date and ending on the second anniversary of the latest
of (a) the Issue Date, (b) the second anniversary of the last date on which any
Exchangeable Notes are issued upon exercise of the Initial Purchasers'
over-allotment option and (c) the last date on which any unregistered Navistar
Common Stock is issued or issuable in exchange for the Exchange Notes (each such
event referred to in clauses (i) and (ii) being referred to herein as a
"Registration Default"), the Company will pay liquidated damages to each holder
of Transfer Restricted Securities that are Exchangeable Notes and Navistar will
pay liquidated damages to each holder of Transfer Restricted Securities that are
Common Stock (together, "Liquidated Damages") which has complied with its
obligations under the Registration Agreement. The amount of Liquidated Damages
payable during any period in which a Registration Default shall have occurred
and be continuing is that amount which is equal to one-quarter of one percent
(25 basis points) per annum per $1,000 principal amount of Exchangeable Notes
and $2.50 per annum per 17.944 shares of Common Stock (subject to adjustment
from time to time in the event of a stock split, stock recombination, stock
dividend and the like) constituting Transfer Restricted Securities for the first
90 days during which a Registration Default has occurred and is continuing and
one-half of one percent (50 basis points) per annum per $1,000 principal amount
of Exchangeable Notes and $5.00 per annum per 17.944 shares of Common Stock
(subject to adjustment as set forth above) constituting Transfer Restricted
Securities for any additional days during which such Registration Default has
occurred and is continuing. All accrued Liquidated Damages will be paid by check
on each Damages Payment Date (as defined in the Registration Agreement), and
Liquidated Damages will be calculated on the basis of a 360-day year consisting
of twelve 30-day months. Following the cure of a Registration Default,
Liquidated Damages will cease to accrue with respect to such Registration
Default.
"Transfer Restricted Securities" means each Exchangeable Note and each
share of Common Stock issued on exchange thereof until the date on which such
Exchangeable Note or share, as the case may be, (i) has been transferred
pursuant to the Shelf Registration Statement or another registration statement
covering such Exchangeable Note or share which has been filed with the
Commission pursuant to the Securities Act, in either case after such
registration statement has become and while such registration statement is
effective under the Securities Act, (ii) has been transferred pursuant to Rule
144 under the Securities Act (or any similar provision
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then in force), or (iii) may be sold or transferred pursuant to Rule 144(k)
under the Securities Act (or any similar provision then in force).
Pursuant to the Registration Agreement, the Company and Navistar may
suspend the use of the prospectus which is a part of the Shelf Registration
Statement for a period not to exceed 30 days in any three-month period or for
three periods not to exceed an aggregate of 60 days in any twelve-month period
under certain circumstances (each, a "Suspension Period"); provided that the
existence of a Suspension Period will not prevent the occurrence of a
Registration Default or otherwise limit the obligation of the Company or
Navistar to pay Liquidated Damages.
The above description of certain provisions of the Registration Agreement
is qualified by reference to, and is subject in its entirety to, the more
complete description thereof contained in the Registration Agreement.
The Company will furnish to any holder upon written request and without
charge a copy of the Indenture and the Registration Agreement. Requests may be
made to:
Navistar Financial Corporation, 0000 Xxxx Xxxx Xxxx, Xxxxxxx Xxxxxxx,
Xxxxxxxx 00000, Attention: Investor Relations.
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FORM OF EXCHANGE NOTICE
To: NAVISTAR INTERNATIONAL CORPORATION
The undersigned beneficial owner of the Exchangeable Note hereby
irrevocably exercises the option to exchange this Exchangeable Note, or portion
hereof (which is $1,000 or an integral multiple thereof) below designated, into
shares of Common Stock of Navistar International Corporation in accordance with
the terms of the Indenture referred to in this Exchangeable Note, and directs
that the shares issuable and deliverable upon the exchange, together with any
check in payment for fractional shares and Exchangeable Notes representing any
unexchanged principal amount hereof, be issued and delivered to the beneficial
owner hereof unless a different name has been indicated below. If shares or any
portion of this Exchangeable Note not exchanged are to be issued in the name of
a person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto. Any amount required to be paid by the undersigned
on account of interest, Liquidated Damages and taxes accompanies this
Exchangeable Note.
Dated:
Fill in for registration of shares if to be delivered, _________________________
and Exchangeable Notes if to be issued, other
than to and in the name of the beneficial owner _________________________
(Please Print):
_________________________
Signature(s)
Principal amount to be
exchanged (if less than
_____________________________________ all);
(Name) _________________________
$___,000
_____________________________________ _________________________
(Street Address) Social Security or other
Taxpayer Identification
Number
____________________________________
(City, State and Zip Code)
Signature Guarantee:
_____________________________________________
Signatures must be guaranteed by an eligible Guarantor Institution (banks,
brokers, dealers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15 if shares are to be issued, or
Exchangeable Notes are to be delivered, other than to and in the name of the
registered holder(s).
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ASSIGNMENT FORM
To assign this Exchangeable Note, fill in the form below:
(I) or (we) assign and transfer this Exchangeable Note to
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________ agent to transfer
this Exchangeable Note on the books of the Company. The agent may substitute
another to act for him.
Your Signature: _______________________________________________
(Sign exactly as your name appears on the other
side of this Exchangeable Note)
Date: ________________________________
Medallion Signature Guarantee: _____________________________________ [FOR
INCLUSION ONLY IF THIS EXCHANGEABLE NOTE BEARS A RESTRICTED SECURITIES LEGEND]
In connection with any transfer of any of the Exchangeable Notes evidenced by
this certificate which are "restricted securities" (as defined in Rule 144 (or
any successor thereto) under the Securities Act), the undersigned confirms that
such Exchangeable Notes are being transferred:
CHECK ONE BOX BELOW
(1) [_] to the Company; or
(2) [_] pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(3) [_] pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(4) [_] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
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Unless one of the boxes is checked, the Registrar will refuse to register any of
the Exchangeable Notes evidenced by this certificate in the name of any person
other than the registered holder thereof; provided, however, that if box (3) or
(4) is checked, the Trustee may require, prior to registering any such transfer
of the Exchangeable Notes, such certifications and other information, and if box
(4) is checked such legal opinions, as the Company has reasonably requested in
writing, by delivery to the Trustee of a standing letter of instruction, 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
of 1933; provided that this paragraph shall not be applicable to any
Exchangeable Notes which are not "restricted securities" (as defined in Rule 144
(or any successor thereto) under the Securities Act).
Your Signature: _______________________________________________________
(Sign exactly as your name appears on the
other side of this Exchangeable Note)
Date: __________________________
Medallion Signature Guarantee: _________________________________
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OPTION OF HOLDER TO ELECT REPURCHASE
If you wish to have this Exchangeable Note repurchased by the Company
pursuant to Section 4.6 of the Indenture, check the Box: [_]
If you wish to have a portion of this Exchangeable Note purchased by the
Company pursuant to Section 4.6 of the Indenture, state the amount (in multiples
of $1,000): $_____.
Date: ________ Your Signature:______________________________________________
(Sign exactly as your name appears on the other side of this
Exchangeable Note)
Medallion Signature Guarantee:________________________________________________
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EXHIBIT B
FORM OF RESTRICTED COMMON STOCK LEGEND
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF NAVISTAR THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE
HEREOF (OR ANY APPLICABLE PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT
WAS AN "AFFILIATE" (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF
NAVISTAR AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH
TRANSFER, IN EITHER CASE OTHER THAN (1) TO NAVISTAR, (2) IN AN OFFSHORE
TRANSACTION (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF
PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN
ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY
HEDGING TRANSACTION WITH REGARD TO THIS SECURITY EXCEPT AS PERMITTED BY THE
SECURITIES ACT."
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EXHIBIT C
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
OF RESTRICTED COMMON STOCK
(Transfers pursuant to Section 12.11(c) of the Indenture)
[NAME AND ADDRESS OF COMMON STOCK TRANSFER AGENT]
Re: Navistar Financial Corporation 4.75% Subordinated Exchangeable Notes due
2009 (the "Exchangeable Notes")
Reference is hereby made to the Indenture dated as of March 25, 2002 (the
"Indenture") by and among Navistar Financial Corporation, Navistar International
Corporation and BNY Midwest Trust Company, as Trustee. Capitalized terms used
but not defined herein shall have the meanings given them in the Indenture.
This letter relates to _________ shares of Common Stock represented by the
accompanying certificate(s) that were issued upon exchange of Exchangeable Notes
and which are held in the name of [name of transferor] (the "Transferor") to
effect the transfer of such Common Stock.
In connection with the transfer of such shares of Common Stock, the
undersigned confirms that such shares of Common Stock are being transferred:
CHECK ONE BOX BELOW
(1) [_] to Navistar; or
(2) [_] pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(3) [_] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
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Unless one of the boxes is checked, the transfer agent will refuse to
register any of the Common Stock evidenced by this certificate in the name of
any person other than the registered holder thereof; provided, however, that if
box (2) or (3) is checked, the transfer agent may require, prior to registering
any such transfer of the Common Stock such certifications and other information,
and if box (3) is checked such legal opinions, as the Company and Navistar have
reasonably requested in writing, by delivery to the transfer agent of a standing
letter of instruction, 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 of 1933.
[Name of Transferor],
By
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Name:
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Title:
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Dated:
C-2
