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ROHR, INC.
AND
IBJ SCHRODER BANK & TRUST COMPANY,
AS TRUSTEE
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$100,000,000
% SENIOR NOTES DUE 2003
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INDENTURE
DATED AS OF MAY 15, 1994
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS................................................... 1
SECTION 1.01 Definitions............................................ 1
SECTION 1.02 Other Definitions...................................... 27
SECTION 1.03 Incorporation by Reference of Trust Indenture Act...... 27
SECTION 1.04 Rules of Construction.................................. 28
ARTICLE 2 THE SENIOR NOTES.............................................. 28
SECTION 2.01 Form and Dating........................................ 28
SECTION 2.02 Execution and Authentication........................... 28
SECTION 2.03 Registrar and Paying Agent............................. 29
SECTION 2.04 Paying Agent To Hold Money in Trust.................... 30
SECTION 2.05 Holder Lists........................................... 30
SECTION 2.06 Transfer and Exchange.................................. 30
SECTION 2.07 Replacement Senior Notes............................... 31
SECTION 2.08 Outstanding Senior Notes............................... 31
SECTION 2.09 When Treasury Senior Notes Disregarded................. 32
SECTION 2.10 Temporary Senior Notes................................. 32
SECTION 2.11 Cancellation........................................... 32
SECTION 2.12 Defaulted Interest..................................... 33
SECTION 2.13 CUSIP Number........................................... 33
ARTICLE 3 REDEMPTION..................................................... 33
SECTION 3.01 Notices to Trustee..................................... 33
SECTION 3.02 Selection of Senior Notes To Be Redeemed............... 34
SECTION 3.03 Notice of Redemption................................... 34
SECTION 3.04 Effect of Notice of Redemption......................... 35
SECTION 3.05 Deposit of Redemption Price............................ 35
SECTION 3.06 Senior Notes Redeemed in Part.......................... 35
ARTICLE 4 COVENANTS..................................................... 36
SECTION 4.01 Payment of Senior Notes................................ 36
SECTION 4.02 Commission Reports..................................... 36
SECTION 4.03 Compliance Certificate................................. 36
SECTION 4.04 Maintenance of Office or Agency........................ 38
SECTION 4.05 Limitation on Indebtedness............................. 38
SECTION 4.06 Limitation on Restricted Payments...................... 38
SECTION 4.07 Limitations on Payment Restrictions Affecting
Subsidiaries......................................... 40
SECTION 4.08 Limitations on Transactions with Affiliates............ 41
SECTION 4.09 Limitation on Subsidiary Indebtedness and Preferred
Stock................................................ 42
SECTION 4.10 Limitation on Sales of Assets.......................... 44
SECTION 4.11 Limitation on Liens.................................... 47
SECTION 4.12 Continued Existence.................................... 48
PAGE
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SECTION 4.13 Taxes................................................... 48
SECTION 4.14 Stay, Extension and Usury Laws.......................... 49
SECTION 4.15 Investment Company Act.................................. 49
SECTION 4.16 Change of Control....................................... 49
SECTION 4.17 Limitation on Sale and Leaseback Transactions........... 51
SECTION 4.18 Appointments to Fill Vacancies in Trustee's Office...... 52
SECTION 4.19 Further Instruments and Acts............................ 52
ARTICLE 5 SUCCESSORS..................................................... 52
SECTION 5.01 When the Company May Merge, etc......................... 52
SECTION 5.02 Successor Corporation Substituted....................... 54
SECTION 5.03 Purchase Option on Change of Control.................... 54
ARTICLE 6 DEFAULTS AND REMEDIES.......................................... 54
SECTION 6.01 Events of Default....................................... 54
SECTION 6.02 Acceleration............................................ 56
SECTION 6.03 Other Remedies.......................................... 57
SECTION 6.04 Waiver of Past Defaults................................. 57
SECTION 6.05 Control by Majority..................................... 57
SECTION 6.06 Limitation on Suits..................................... 58
SECTION 6.07 Rights of Holders To Receive Payment.................... 58
SECTION 6.08 Collection Suit by Trustee.............................. 58
SECTION 6.09 Trustee May File Proofs of Claim........................ 59
SECTION 6.10 Priorities.............................................. 59
SECTION 6.11 Undertaking for Costs................................... 59
ARTICLE 7 THE TRUSTEE.................................................... 60
SECTION 7.01 Duties of the Trustee................................... 60
SECTION 7.02 Rights of the Trustee................................... 61
SECTION 7.03 Individual Rights of the Trustee........................ 62
SECTION 7.04 Trustee's Disclaimer.................................... 62
SECTION 7.05 Notice of Defaults...................................... 62
SECTION 7.06 Reports by the Trustee to Holders....................... 63
SECTION 7.07 Compensation and Indemnity.............................. 63
SECTION 7.08 Replacement of the Trustee.............................. 64
SECTION 7.09 Successor Trustee by Merger, etc........................ 65
SECTION 7.10 Eligibility, Disqualification........................... 66
SECTION 7.11 Preferential Collection of Claims Against Company....... 66
ARTICLE 8 SATISFACTION AND DISCHARGE OF INDENTURE........................ 66
SECTION 8.01 Termination of Company's Obligations.................... 66
SECTION 8.02 Application of Trust Money.............................. 70
SECTION 8.03 Repayment to Company.................................... 70
SECTION 8.04 Reinstatement........................................... 70
ii
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ARTICLE 9 AMENDMENTS..................................................... 71
SECTION 9.01 Without the Consent of Holders......................... 71
SECTION 9.02 With the Consent of Holders............................ 71
SECTION 9.03 Compliance with the Trust Indenture Act................ 72
SECTION 9.04 Revocation and Effect of Consents...................... 72
SECTION 9.05 Notation on or Exchange of Senior Notes................ 73
SECTION 9.06 Trustee Protected...................................... 73
ARTICLE 10 GENERAL PROVISIONS............................................ 74
SECTION 10.01 Trust Indenture Act Controls........................... 74
SECTION 10.02 Notices................................................ 74
SECTION 10.03 Communication by Holders With Other Holders............ 75
SECTION 10.04 Certificate and Opinion as to Conditions Precedent..... 75
SECTION 10.05 Statements Required in Certificate or Opinion.......... 75
SECTION 10.06 Rules by Trustee and Agents............................ 76
SECTION 10.07 Legal Holidays......................................... 76
SECTION 10.08 No Recourse Against Others............................. 77
SECTION 10.09 Counterparts........................................... 77
SECTION 10.10 Other Provisions....................................... 77
SECTION 10.11 Governing Law.......................................... 78
SECTION 10.12 No Adverse Interpretation of Other Agreements.......... 78
SECTION 10.13 Successors............................................. 78
SECTION 10.14 Severability........................................... 78
SECTION 10.15 Table of Contents, Headings, etc....................... 78
iii
CROSS-REFERENCE TABLE*
TRUST INDENTURE ACT SECTION INDENTURE SECTION
310(a)(1)................................................................. 7.10
(a)(2)................................................................. 7.11
(a)(3)................................................................. N.A.
(a)(4)................................................................. N.A.
(b)....................................................... 7.08, 7.10, 10.02
(c).................................................................... N.A.
311(a).................................................................... 7.11
(b).................................................................... 7.11
(c).................................................................... N.A.
312(a).................................................................... 2.05
(b)................................................................... 10.03
(c)................................................................... 10.03
313(a).................................................................... 7.06
(b)(1)................................................................. N.A.
(b)(2)................................................................. 7.06
(c)............................................................. 7.06, 10.02
(d).................................................................... 7.06
314(a)............................................................. 4.01, 10.02
(b).................................................................... N.A.
(c)(1)................................................................ 10.04
(c)(2)................................................................ 10.04
(c)(3)................................................................. N.A.
(d).................................................................... N.A.
(e)................................................................... 10.05
(f).................................................................... N.A.
315(a)................................................................. 7.01(b)
(b)............................................................. 7.05, 10.02
(c)................................................................. 7.01(a)
(d)................................................................. 7.01(c)
(e).................................................................... 6.11
316(a)(last sentence)..................................................... 2.09
(a)(1)(A).............................................................. 6.05
(a)(2)(B).............................................................. 6.04
(a)(2)................................................................. N.A.
(b).................................................................... 6.02
317(a)(1)................................................................. 6.08
(a)(2)..................................................................6.09
(b).................................................................... 2.04
318(a)................................................................... 10.01
N.A. means not applicable.
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* This Cross-Reference Table is not part of the Indenture.
iv
THIS INDENTURE, dated as of May 15, 1994, is between Rohr, Inc., a Delaware
corporation (the "Company"), and IBJ Schroder Bank & Trust Company, a New York
banking corporation ("Trustee"). The Company has duly authorized the creation
of its % Senior Notes due 2003 (the "Senior Notes") and to provide therefor
the Company has 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 Senior
Notes.
ARTICLE 1
Definitions
Section 1.01 Definitions.
"Acquired Indebtedness" of any specified Person means Indebtedness of any
other Person and its Subsidiaries existing at the time such other Person
merged with or into or became a Subsidiary of such specified Person or assumed
by the specified Person in connection with the acquisition of assets from such
other Person including, without limitation, Indebtedness of such other Person
and its Subsidiaries incurred in connection with or in anticipation of (a)
such other Person and its Subsidiaries being merged with or into or becoming a
Subsidiary of such specified Person or (b) such acquisition by the specified
Person.
"Affiliate" means, when used with reference to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, the referent Person, as the case may be, or any Person
who beneficially owns (within the meaning of Rule 13d-3 andRule 13d-5 under
the Exchange Act), directly or indirectly, 10% or more of the equity interests
of the referent Person or warrants, options or other rights to acquire or hold
more than 10% of any class of equity interests of the referent 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 poli-
cies of the referent Person, directly or indirectly, whether through the own-
ership of voting securities, by contract or otherwise; and the terms "control-
ling" and "controlled" have meanings correlative of the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Sale" means any sale, lease, transfer, exchange or other disposition
by the Company or any Subsidiary (or series of related sales, leases, trans-
fers, exchanges or dispositions) in excess of $1,000,000, including, without
limitation, dispositions pursuant to merger, consolidation or sale and lease-
back transactions, of (a) shares of Capital Stock of a Subsidiary of the Com-
pany (pro rated to the extent of the Company's interest therein), (b) all or
substantially all of the properties and assets of any division or line of
business of the Company or any Subsidiary of the Company or (c) any other
property or assets of the Company (pro rated to the extent of the Company's
interest therein) or of any Subsidiary of the Company (pro rated to the extent
of the Company's interest therein,) (each referred to for purposes of this
definition as a "disposition") by the Company or by any of its Subsidiaries
(other than (i) dispositions by the Company to a Wholly Owned Subsidiary of
the Company or by a Subsidiary of the Company to the Company or to a Wholly
Owned Subsidiary of the Company, (ii) sales or other dispositions of inventory
in the ordinary course of business, (iii) any disposition of properties or as-
sets that is consummated in accordance with the provisions of Section 5.01,
(iv) any disposition of any account receivable pursuant to the Pooling and
Servicing Agreement, (v) dispositions by the Company or any Subsidiary of the
Company of the business, jet product line, the overhaul and repair business,
as conducted by Rohr Aero Services, Inc. and Rohr Aero Services Europe, re-
spectively, on the Issue Date, the Hagerstown, Maryland plant and the Auburn,
Washington plant, in each case, including related assets, (vi) the disposition
by the Company or any Subsidiary of the Company of interests owned on the Is-
sue Date in two trusts which own an Airbus A300 aircraft and a McDonnell Doug-
las DC10 aircraft, respectively and (vii) the disposition of Building 107 (at
the Company's facility in Chula Vista, California) to (a) any pension plan of
the Company or (b) to any other Person if the net proceeds of such disposition
are delivered to any pension plan referred to in clause (a) of this defini-
tion, in either case resulting in the full satisfaction (or in case the full
amount of such net proceeds are so delivered and shall be insufficient to ef-
fect such full satisfaction, the partial satisfaction,) of the Company's fund-
ing liabilities with respect to any such pension plans).
"Average Life" means, as of the date of determination, with respect to any
Indebtedness or security, the quotient obtained by dividing (a) the sum of the
product of (i) the number of years from such date to the date of each
2
successive scheduled principal or redemption payment of such Indebtedness or
security multiplied by (ii) the amount of such principal or redemption payment
by (b) the sum of all such principal or redemption payments.
"Bank Agent" means, at any time, the then-acting agent under the Revolving
Credit Agreement, which shall initially be Citicorp USA, Inc.
"Board of Directors" means the Board of Directors of the Company or any au-
thorized committee of the Board of Directors.
"Capital Stock" means, with respect to any Person, any and all shares, in-
terests, participations, rights in, or other equivalents (however designated
and whether voting or non-voting) of such Person's capital stock, including
each class of Common Stock or Preferred Stock of such Person, whether out-
standing on the Issue Date or issued after the Issue Date, and any and all
rights, warrants or options exchangeable for or convertible into such capital
stock (but excluding any debt security that is exchangeable for or convertible
into such capital stock).
"Capitalized Lease Obligation" means any obligation under a lease that is
required to be classified and accounted for as a capital lease obligation un-
der GAAP and, for purposes of this Indenture, the amount of such obligations
at any date shall be the capitalized amount of such obligations at such date,
determined in accordance with GAAP. The Stated Maturity of such obligation
shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be terminated by
the lessee without penalty.
"Cash Equivalents" means (a) marketable direct obligations issued by, or un-
conditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States,
in each case maturing within three years from the date of acquisition thereof,
(b) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public instru-
mentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having a long-term rating of at least
A from either Standard & Poor's Corporation ("S&P") or Moody's Investors Serv-
ice, Inc. ("Moody's") or a short-term rating of at least A-1 from S&P or P-1
from Moody's, (c) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of
at least
3
A-1 from S&P or at least P-1 from Moody's, (d) certificates of deposit, bank-
ers' acceptances, time deposits, eurocurrency deposits or similar types of in-
vestments routinely offered by commercial banks and maturing within one year
from the date of acquisition thereof issued by any commercial bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia or any United States branch of a foreign bank having, at
the date of acquisition thereof, combined capital and surplus of not less than
$500 million, (e) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (a) above en-
tered into with any commercial bank meeting the qualifications specified in
clause (d) above or with investment banks reporting to the Market Reports Di-
vision of the Federal Reserve Bank ("FRB") meeting the FRB's capital criteria
and having a long-term rating of at least A from either S&P or Moody's and (f)
investments in money market funds which invest substantially all their assets
in securities of the types described in clauses (a) through (e) above.
"Change of Control" means the occurrence of one or more of the following
events (whether or not approved by the Board of Directors of the Company): (a)
an event or series of events by which any Person or other entity or group of
Persons or other entities acting in concert as determined in accordance with
Section 13(d) of the Exchange Act, whether or not applicable (a "Group of Per-
sons") shall, as a result of a tender or exchange offer, open market pur-
chases, privately negotiated purchases, merger or otherwise (i) be or become,
directly or indirectly, the beneficial owner (within the meaning of Rule 13d-3
and Rule 13d-5 under the Exchange Act, whether or not applicable) of 50% or
more of the combined voting power of the then outstanding Voting Stock of the
Company or (ii) have or has the ability to elect, directly or indirectly, a
majority of the members of the Board of Directors of the Company or other
equivalent governing body thereof, (b) the stockholders of the Company shall
approve any Plan of Liquidation of the Company (whether or not otherwise in
compliance with the provisions of this Indenture), (c) individuals who at the
beginning of any period of two consecutive calendar years constituted the
Board of Directors of the Company (together with any new directors whose elec-
tion or appointment by the Board of Directors of the Company or whose nomina-
tion for election by the Company's shareholders was approved by a vote of at
least a majority of the members of the Board of Directors of the Company then
still in office who either were members of the Board of Directors of the Com-
pany at the beginning of such period or whose
4
election, appointment or nomination for election was previously so approved)
cease for any reason to constitute a majority of the members of the Board of
Directors of the Company then in office, or (d) the direct or indirect sale,
lease, exchange or other transfer, in one transaction or a series of related
transactions, of all or substantially all of the property or assets of the
Company to any Person or Group of Persons (whether or not otherwise in compli-
ance with the provisions of this Indenture).
"Commission" means the Securities and Exchange Commission.
"Common Stock" of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether vot-
ing or non-voting) of any Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation,
all series and classes of such common stock.
"Company" means the party named as such above until a successor replaces it
in accordance with Article 5 and thereafter means the successor.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any Per-
son, the ratio of (a) the aggregate amount of EBITDA of such Person for the
four full fiscal quarters ending on or immediately prior to the date of the
transaction (the "Transaction Date") giving rise to the need to calculate the
Consolidated Fixed Charge Coverage Ratio (such four full fiscal quarter period
being referred to herein as the "Four Quarter Period") to (b) the aggregate
Consolidated Fixed Charges of such Person for such Four Quarter Period. For
purposes of this definition, if the Transaction Date occurs prior to the first
anniversary of the Issue Date, EBITDA and Consolidated Fixed Charges shall be
calculated, in the case of the Company, after giving effect on a pro forma ba-
sis as if the issuance of the Senior Notes and the application of the net pro-
ceeds therefrom occurred on the first day of the Four Quarter Period. In addi-
tion to and without limitation of the foregoing, for purposes of this defini-
tion, EBITDA and Consolidated Fixed Charges shall be calculated after giving
effect on a pro forma basis for the period of such calculation to (x) the
incurrence or retirement, as the case may be, of any Indebtedness (including
Acquired Indebtedness) of such Person or of any of its Subsidiaries during the
period commencing on the first day of the Four Quarter Period to and including
the Transaction Date (the "Reference Period"), including, without limitation,
the incurrence of the Indebtedness giving rise to the need to make such calcu-
lation, as if such incurrence or retirement, as the case may be, occurred
5
on the first day of the Reference Period and (y) the EBITDA attributable to
any Person, business, property or asset acquired or divested during the Refer-
ence Period (provided that with respect to any such acquisition, only to the
extent the EBITDA of such Person is otherwise includible in the referent Per-
son's EBITDA) as if such transaction occurred on the first day of the Refer-
ence Period. Furthermore, in calculating "Consolidated Fixed Charges" for pur-
poses of determining the denominator (but not the numerator) of this "Consoli-
dated Fixed Charge Coverage Ratio," (i) interest on Indebtedness determined on
a fluctuating basis as of the Transaction Date and which will continue to be
so determined thereafter shall be deemed to have accrued at a fixed rate per
annum equal to the rate of interest on such Indebtedness in effect on the
Transaction Date; (ii) if interest on any Indebtedness actually incurred on
the Transaction Date may be optionally determined at an interest rate based
upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate or other rates, then the interest rate in effect on the Transaction Date
will be deemed to have been in effect during the entire Reference Period; and
(iii) notwithstanding the foregoing, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by Interest Rate
Protection Agreements, shall be deemed to accrue at the rate per annum result-
ing after giving effect to the operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any Person for any peri-
od, the sum of, without duplication, the amounts for such period, taken as a
single accounting period, of (a) Consolidated Interest Expense and (b) the
product of (i) the amount of all dividend requirements whether in cash or oth-
erwise (except dividends payable in shares of Common Stock) paid, accrued or
scheduled to be paid or accrued during such period multiplied by (ii) a frac-
tion, the numerator of which is one and the denominator of which is one minus
the then current effective consolidated Federal, state, local and foreign tax
rate (expressed as a decimal number between 1 and 0) of such Person (as re-
flected in the audited consolidated financial statements of such Person for
the most recently completed fiscal year).
"Consolidated Interest Expense" means, with respect to any Person for any
period, the aggregate of the interest expense (without deduction of interest
income) of such Person and its Consolidated Subsidiaries for such period, on a
consolidated basis, as determined in accordance with GAAP, including all amor-
tization of original issue discount, the interest component of Capitalized
Lease Obligations, net cash costs under all Interest Rate Protection Agree-
6
ments (including amortization of fees), all capitalized interest, the interest
portion of any deferred payment obligations for such period and cash contribu-
tions to any employee stock ownership plan to the extent such contributions
are used by such employee stock ownership plan to pay interest or fees to any
Person (other than the referent Person or one of its Wholly Owned Subsidiar-
ies) in connection with loans incurred by such employee stock ownership plan
to purchase capital stock of the referent Person, but net of any amortization
of any debt issuance costs. If the Person for whom this calculation is being
made or any of its Subsidiaries directly or indirectly guarantees Indebtedness
of a third person, the calculation shall give effect to the incurrence of such
guaranteed Indebtedness as if such Person or Subsidiary of such Person had di-
rectly incurred or otherwise assumed such guaranteed Indebtedness as of the
first day of the Reference period.
"Consolidated Net Income" means, with respect to any Person for any period,
the consolidated net income (or deficit) of such Person and its Consolidated
Subsidiaries for such period, on a consolidated basis, as determined in accor-
dance with GAAP consistently applied, provided that the net income of any
other Person (other than a Subsidiary) in which the referent Person or any
Subsidiary of the referent Person has a joint interest with a third party
(which interest does not cause the net income of such other Person to be con-
solidated into the net income of the referent Person in accordance with GAAP)
shall be included only to the extent of the lesser of (a) such net income that
has been actually received by the referent Person or Wholly Owned Subsidiary
of the referent Person in the form of cash dividends or similar cash distribu-
tions (subject to, in the case of a dividend or other distribution to a Wholly
Owned Subsidiary of the referent Person, the limitations set forth in clause
(i)(1) of the next proviso hereof) or (b) the net income of such other Person
(which in no event shall be less than zero); provided further, that there
shall be excluded (i)(1) the net income (but not loss) of any Subsidiary of
the referent Person to the extent that the declaration or payment of dividends
or similar distributions by such Subsidiary is not permitted by operation of
the terms of its charter or any agreement, instrument, judgment, decree, or-
der, statute, rule or governmental regulation applicable to such Subsidiary,
(2) the net income of any Person acquired in a pooling of interests transac-
tion accrued prior to the date it became a Subsidiary of the referent Person,
and (3) all gains and losses resulting from the cumulative effect of any ac-
counting change pursuant to the application of Accounting Principles Board
Opinion No. 20, as amended, or any successor thereto; (ii) any gain (but not
loss), net of any related provisions
7
for taxes, realized upon the sale or other disposition (including, without
limitation, dispositions pursuant to Sale-Leaseback Financings) of any prop-
erty or assets which are not sold or otherwise disposed of in the ordinary
course of business and upon the sale or other disposition of any Capital Stock
of any Subsidiary of the referent Person; (iii) any gain arising from the ac-
quisition of any securities, or the extinguishment, under GAAP, of any Indebt-
edness of the referent Person; (iv) any extraordinary gain (but not extraordi-
nary loss) net of any related provision for taxes on any such extraordinary
gain; (v) any amounts paid or accrued as dividends on Preferred Stock of such
Person or Preferred Stock of any Subsidiary of such Person; (vi) income or
loss attributable to discontinued operations; and (vii) in the case of a suc-
cessor to the Company by consolidation or merger or as a transferee of the
Company's assets, any earnings of the successor corporation prior to such con-
solidation, merger or transfer of assets.
"Consolidated Net Worth" of a Person at any date means the Consolidated
Stockholders' Equity of such Person less (a) the amount of any gain resulting,
directly or indirectly, from the extinguishment, retirement or repurchase of
any Indebtedness of such Person or of any of its Subsidiaries, (b) any revalu-
ation or other write-ups subsequent to the Issue Date in the book value of any
asset owned by such Person or a Consolidated Subsidiary and (c) any amounts
attributable to the cost of treasury stock and the principal amount of any
promissory notes receivable from the sale of Capital Stock of such Person or
of any of its Subsidiaries. Notwithstanding any of the foregoing, net deferred
income tax assets recorded in accordance with Statement of Financial Account-
ing Standards No. 109, Accounting for Income Taxes ("SFAS 109"), shall be cal-
culated without regard to any valuation allowance with respect to such net de-
ferred tax asset recorded by the Company in accordance withSFAS 109.
"Consolidated Stockholders' Equity" as of any date means, with respect to
any Person, the amount by which the assets of such Person and of its Subsidi-
aries on a consolidated basis exceed (a) the total liabilities of such Person
and of its Subsidiaries on a consolidated basis, plus (b) any redeemable Pre-
ferred Stock (including Disqualified Capital Stock) of such Person or any re-
deemable Preferred Stock (including Disqualified Capital Stock) of any Subsid-
iary of such Person issued to any Person other than to such Person or to a
Wholly Owned Subsidiary of such Person, in each case determined in accordance
with GAAP.
8
"Consolidated Subsidiary" of any Person means a Subsidiary which for finan-
cial reporting purposes is or, in accordance with GAAP, should be, accounted
for by such Person as a consolidated subsidiary.
"Consolidated Tax Expense" means, with respect to any Person for any period,
the aggregate of the U.S. Federal, state and local tax expense attributable to
taxes based on income and foreign income tax expenses of such Person and its
Consolidated Subsidiaries for such period (net of any income tax benefit), de-
termined in accordance with GAAP.
"Convertible Subordinated Notes" means the % Convertible Subordinated
Notes due 2004 of the Company offered concurrently with the Senior Notes.
"Convertible Subordinated Note Indenture" means that certain indenture by
and between the Company and The Bank of New York, as Trustee, governing the
Convertible Subordinated Notes as amended or supplemented from time to time.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any of its Subsidiaries against fluctuations in currency values to
or under which the Company or any of its Subsidiaries is a party or a benefi-
ciary on the date of this Indenture or becomes a party or a beneficiary there-
after.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default (as defined in Section 6.01).
"Disqualified Capital Stock" means any Capital Stock that, other than solely
at the option of the issuer thereof, by its terms (or by the terms of any se-
curity into which it is convertible or exchangeable) is, or upon the happening
of an event or the passage of time would be, required to be redeemed or repur-
chased, in whole or in part, or has, or upon the happening of an event or the
passage of time would have, a redemption or similar payment due on or prior to
the first anniversary of the Maturity Date of the Senior Notes, or is convert-
ible into or exchangeable for debt securities at the option of the holder
thereof at any time prior to such Maturity Date.
9
"EBITDA" for any Person means for any period for which it is to be deter-
mined the sum of, without duplication, the amounts for such period, taken as a
single accounting period, of (a) Consolidated Net Income of such Person for
such period, plus (b) only to the extent Consolidated Net Income has been re-
duced thereby, (i) Consolidated Tax Expense of such Person paid or accrued in
accordance with GAAP for such period, (ii) Consolidated Interest Expense of
such Person for such period, (iii) depreciation and amortization expenses (in-
cluding, without limitation, amortization of capitalized debt issuance costs)
of such Person and its Consolidated Subsidiaries for such period; all as de-
termined on a consolidated basis in conformity with GAAP consistent with those
principles applied in the preparation of the audited financial state ments of
such Person and its Consolidated Subsidiaries on the Issue Date; provided that
if a Person has any Subsidiary that is not a Wholly Owned Subsidiary, EBITDA
of such Person shall be reduced by an amount equal to (1) the Consolidated Net
Income of such Subsidiary for such period multiplied by (2) the quotient of
(A) the number of shares of outstanding Common Stock of such Subsidiary not
owned on the last day of such period by such Person or by any Wholly Owned
Subsidiary of such Person that is not subject to any encumbrance or restric-
tion on the payment of dividends to such Person divided by (B) the total num-
ber of shares of outstanding Common Stock of such Subsidiary on the last day
of such period.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Indebtedness" has the meaning set forth in the definition of Per-
mitted Refinancing Indebtedness.
"Fair Market Value" or "fair value" means, with respect to any asset or
property or Capital Stock, the price which could be negotiated in an arm's-
length, free market transaction, for cash, between an informed and willing
seller and an informed, willing and able buyer, neither of whom is under undue
pressure or compulsion to complete the transaction. Fair Market Value shall be
determined by the Board of Directors of the Company acting reasonably and in
good faith and shall be evidenced by a written resolution of said Board of Di-
rectors (certified by the Secretary or Assistant Secretary of the Company) de-
livered to the Trustee, provided that if the aggregate non-cash consideration
to be received by the Company or any of its Subsidiaries from any Asset Sale
shall exceed $10,000,000, then Fair Market Value shall be determined by an In-
dependent Financial Advisor.
10
"GAAP" means generally accepted accounting principles set forth in the opin-
ions and pronouncements of the Accounting Principles Board of the American In-
stitute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Issue Date.
"incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), as-
sume, guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise,
of any such Indebtedness or other obligation on the balance sheet of such Per-
son (and "incurrence," "incurred," "incurable" and "incurring" shall have
meanings correlative to the foregoing), provided that the accrual of interest
(whether such interest is payable in cash or in kind) and the accretion of
original issue discount shall not be deemed an incurrence of Indebtedness,
provided, further, that (a) any Indebtedness or Disqualified Capital Stock of
a Person existing at the time such Person becomes (after the Issue Date) a
Subsidiary (whether by merger, consolidation, acquisition or otherwise) of the
Company shall be deemed to be incurred by such Subsidiary at the time it be-
comes a Subsidiary of the Company and (b) any amendment, modification or
waiver of any document pursuant to which Indebtedness was previously incurred
shall be deemed to be an incurrence of Indebtedness unless such amendment,
modification or waiver does not (i) increase the principal or premium thereof
or interest rate thereon (including by way of original issue discount), (ii)
change to an earlier date the Stated Maturity thereof or the date of any
scheduled or required principal payment thereon or the time or circumstances
under which such Indebtedness may or shall be redeemed, (iii) if such Indebt-
edness is subordinated to the Senior Notes, modify or affect, in any manner
adverse to the holders such subordination, (iv) if the Company is the obligor
thereon, provide that a Subsidiary of the Company not already an obligor
thereon shall be an obligor thereon or (v) violate, or cause the Indebtedness
to violate, the provisions described under Sections 4.07 and 4.11 of this In-
denture.
"Indebtedness" means, with respect to any Person, at any date, any of the
following, without duplication, (a) any liability, contingent or otherwise, of
such Person (i) for borrowed money (whether or not the recourse of the
11
lender is to the whole of the assets of such Person or only to a portion
thereof) (ii) evidenced by a note, bond, debenture or similar instrument or
(iii) for the payment of money relating to a Capitalized Lease Obligation or
other obligation (whether issued or assumed) relating to the deferred purchase
price of property but excluding advances, deposits, partial and progress pay-
ments, unpaid wages and related employee obligations, trade accounts payable
and accrued liabilities in each case arising in the ordinary course of busi-
ness that are not overdue by 180 days or more or are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted;
(b) all conditional sale obligations and all obligations under any title re-
tention agreement (even if the rights and remedies of the seller under such
agreement in the event of default are limited to repossession or sale of such
property); (c) reimbursement obligations of such Person with respect to let-
ters of credit and all obligations of such Person in respect of any banker's
acceptance or similar credit transaction entered into in the ordinary course
of business; (d) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on any asset or property (including, without limita-
tion, leasehold interests and any other tangible or intangible property) of
such Person, whether or not such Indebtedness is assumed by such Person or is
not otherwise such Person's legal liability, provided that if the obligations
so secured have not been assumed in full by such Person or are otherwise not
such Person's legal liability in full, the amount of such Indebtedness for the
purposes of this definition shall be limited to the lesser of the amount of
such Indebtedness secured by such Lien or the Fair Market Value of the assets
or property securing such Lien; (e) all Indebtedness of others guaranteed (in-
cluding all dividends of other Persons the payment of which is guaranteed),
directly or indirectly, by such Person or that is otherwise its legal liabil-
ity or which such Person has agreed to purchase or repurchase or in respect of
which such Person has agreed contingently to supply or advance funds; (f) all
Disqualified Capital Stock issued by such Person (other than such Disqualified
Capital Stock owned by the referent Person or by any Wholly Owned Subsidiary
of the referent Person, provided that if any Wholly Owned Subsidiary of the
referent Person shall cease to be a Wholly Owned Subsidiary of the referent
Person or shall transfer such Disqualified Capital Stock (other than to the
referent Person or another Wholly Owned Subsidiary of the referent Person) the
date on which such Wholly Owned Subsidiary so ceases to be a Wholly Owned Sub-
sidiary of the referent Person or so transfers such Disqualified Capital Stock
shall be deemed to be
12
the issuance of such Disqualified Capital Stock by the Subsidiary issuer
thereof) with the amount of Indebtedness represented by such Disqualified Cap-
ital Stock being equal to the greater of its voluntary or involuntary liquida-
tion preference and its maximum fixed repurchase price, but excluding accrued
dividends if any; and (g) all obligations under Currency Agreements and Inter-
est Rate Protection Agreements. For purposes hereof, the "maximum fixed repur-
chase price" of any Disqualified Capital Stock which does not have a fixed re-
purchase price shall be calculated in accordance with the terms of such Dis-
qualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant
to this Indenture. The amount of Indebtedness of any Person at any date shall
be the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability, upon the occurrence of the contin-
gency giving rise to the obligation, of any contingent obligations at such
date, provided that the amount outstanding at any time of any Indebtedness is-
sued with original issue discount is the full amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such In-
debtedness at such time as determined in conformity with GAAP.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Independent Financial Advisor" means an accounting, appraisal or investment
banking firm of nationally recognized standing that is, in the reasonable and
good faith judgment of the Board of Directors of the Company, qualified to
perform the task for which such firm has been engaged and disinterested and
independent with respect to the Company and its Affiliates.
"Interest Rate Protection Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement, in-
terest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other similar agreement or ar-
rangement designed to protect a Person or any of its Subsidiaries against
fluctuations in interest rates to or under which such Person or any of its
Subsidiaries is a party or a beneficiary on the Issue Date or becomes a party
or a beneficiary thereafter.
"Investment" by any Person means (a) any direct or indirect loan, advance or
other extension of credit or capital contribution to (by means of transfers of
cash or other property (valued at the Fair Market Value thereof
13
as of the date of transfer) to others or payments for property or services for
the account or use of others, or otherwise), (b) any direct or indirect pur-
chase or acquisition of Capital Stock, bonds, notes, debentures or other secu-
rities or evidences of Indebtedness issued by any other Person (whether by
merger, consolidation, amalgamation or otherwise and whether or not purchased
directly from the issuer of such securities or evidences of Indebtedness), (c)
any direct or indirect guarantee or assumption of the Indebtedness of any
other Person, and (d) all other items that would be classified as investments
(including, without limitation, purchases of assets outside the ordinary
course of business) on a balance sheet of such Person prepared in accordance
with GAAP. The amount of any Investment shall be the original cost of such In-
vestment plus the cost of all additions thereto, without any adjustments for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
"Issue Date" means the date on which the Senior Notes are originally issued
under this Indenture.
"Lien" means, with respect to any Person, any mortgage, pledge, lien, encum-
brance, easement, restriction, covenant, right-of-way, charge or adverse claim
affecting title or resulting in an encumbrance against real or personal prop-
erty of such Person, or a security interest of any kind (including any condi-
tional sale or other title retention agreement, any lease in the nature there-
of, including any sale and leaseback transaction, any option or other similar
agreement to sell, in each case securing obligations of such Person and any
filing of or agreement to give any financing statement under the Uniform Com-
mercial Code (or equivalent statute or statutes) of any jurisdiction other
than to reflect ownership by a third party of property leased to the referent
Person or any of its Subsidiaries under a lease that is not in the nature of a
conditional sale or title retention agreement).
"Material Subsidiary" means, at any date of determination, any Subsidiary of
the Company that, together with its Subsidiaries, (i) for the most recent fis-
cal year of the Company accounted for more than 5% of the consolidated reve-
nues of the Company or (ii) as of the end of such fiscal year, was the owner
of more than 5% of the consolidated assets of the Company, all as set forth on
the most recently available consolidated financial statements of the Company
and its consolidated Subsidiaries for such fiscal year prepared in conformity
with generally accepted accounting principles as then in effect.
14
"Maturity Date" means [ ], 2003.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds of
such Asset Sale in the form of cash or Cash Equivalents, including payments in
respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of
cash or Cash Equivalents (except to the extent such obligations are financed
or sold with recourse to the Company or any Subsidiary of the Company) and
proceeds from the conversion of other property received when converted to cash
or Cash Equivalents, net of (a) reasonable third-party brokerage commissions
and other reasonable third-party fees and expenses (including fees and ex-
penses of counsel and investment bankers) related to such Asset Sale, (b) pro-
visions for all taxes as a result of such Asset Sale computed on a consoli-
dated basis reflecting the consolidated results of operations of the Company
and its Subsidiaries, taken as a whole, (c) payments made to repay Indebted-
ness or any other obligation outstanding at the time of such Asset Sale that
was incurred in accordance with this Indenture and that either (i) is secured
by a Lien incurred in accordance with this Indenture on the property or assets
sold or (ii) is required to be paid as a result of such sale in each case to
the extent actually repaid in cash and (d) appropriate amounts to be provided
by the Company or any Subsidiary of the Company as a reserve against liabili-
ties associated with such Asset Sale, including without limitation pension and
other post-employment benefit liabilities, liabilities related to environmen-
tal matters and liabilities under any indemnification obligations associated
with such Asset Sale, all as determined in conformity with generally accepting
accounting principles as then in effect. For purposes of this definition and
Section 4.10, "cash" means U.S. dollars or such money as is freely and readily
convertible into U.S. dollars.
"Net Equity Proceeds" means (a) in the case of any sale by the Company of
Qualified Capital Stock of the Company, the aggregate net proceeds received by
the Company, after payment of expenses, commissions and the like incurred in
connection therewith, whether such proceeds are in cash or in other property
(valued as determined reasonably and in good faith by the Board of Directors
of the Company, as evidenced by a written resolution of said Board of Direc-
tors, at the Fair Market Value thereof at the time of receipt) and (b) in the
case of any exchange, exercise, conversion or surrender of any outstanding In-
debtedness of the Company or any Subsidiary for or into shares of Qualified
Capital Stock of the Company, the amount of such Indebtedness (or,
15
if such Indebtedness was issued at an amount less than the stated principal
amount thereof, the accrued amount thereof as determined in accordance with
generally accepted accounting principles as then in effect) as reflected in
the consolidated financial statements of the Company prepared in accordance
with generally accepted accounting principles as then in effect as of the most
recent date next preceding the date of such exchange, exercise, conversion or
surrender (plus any additional amount required to be paid by the holder of
such Indebtedness of the Company or to any wholly owned Subsidiary of the Com-
pany upon such exchange, exercise, conversion or surrender) and less any and
all payments made to the holders of such Indebtedness, and all other expenses
incurred by the Company in connection therewith, in the case of each of
clauses (a) and (b) to the extent consummated after the Issue Date, provided
that the exchange exercise, conversion or surrender of any Indebtedness out-
standing on the Issue Date, including the Convertible Subordinated Notes,
which is subordinated (whether pursuant to its terms or by operation of law)
to the Senior Notes shall not be or be deemed to be included in Net Equity
Proceeds.
"New Indebtedness" has the meaning set forth in the definition of Permitted
Refinancing Indebtedness.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, the Chief Accounting Officer, any Ex-
ecutive Vice President, Senior Vice President or Vice President, the Treasur-
er, any other executive officer, the Secretary and any Assistant Treasurer or
any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one of
whom must be the principal executive officer, principal financial officer, the
treasurer or principal accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is rea-
sonably acceptable to the Trustee. The counsel may be an employee of or coun-
sel to the Company or the Trustee except to the extent otherwise indicated in
this Indenture.
"Pari Passu Indebtedness" means the Senior Notes and any Indebtedness under
the Company's Revolving Credit Agreement, its 9.33% Senior Notes due 2002, its
9.35% Senior Notes due 2000, and any other Indebtedness per-
16
mitted under this Indenture which is pari passu in right of payment with the
Senior Notes.
"Permitted Indebtedness" means, without duplication, (a) Indebtedness of the
Company and its Subsidiaries remaining outstanding immediately after the Issue
Date after giving effect to the consummation of the transactions described in
the Prospectus under "Use of Proceeds"; (b) $110 million of Indebtedness of
the Company evidenced by or arising under the Revolving Credit Agreement; (c)
Indebtedness of the Company evidenced by or arising under the Senior Notes and
this Indenture; (d) Permitted Refinancing Indebtedness incurred by the Company
or by any of its Subsidiaries; (e) unsecured Indebtedness of the Company to a
Wholly Owned Subsidiary of the Company, provided that (i) any Indebtedness of
the Company to a Wholly Owned Subsidiary of the Company shall be evidenced by
an intercompany promissory note that is subordinated in right of payment to
the payment and performance of the Company's obligations under this Indenture
and the Senior Notes, and (ii) any subsequent issuance or transfer of Capital
Stock of a Wholly Owned Subsidiary of the Company (the "Creditor Subsidiary")
that results in such Creditor Subsidiary ceasing to be a Wholly Owned Subsidi-
ary of the Company or any subsequent transfer of Indebtedness owing from the
Company to such Creditor Subsidiary (other than a transfer to another Wholly
Owned Subsidiary of the Company) shall be deemed in each case to constitute
the incurrence of Indebtedness by the Company to the extent of any such In-
debtedness then outstanding; (f) Indebtedness of the Company in an aggregate
principal amount not to exceed, when added to Indebtedness and Preferred Stock
of Subsidiaries of the Company incurred under clause (d) of Section 4.09 here-
of, 10% of Consolidated Net Worth of the Company, provided, however, that no
Default or Event of Default shall have occurred and be continuing at the time
of or as a consequence of the incurrence of such Indebtedness; and (g) Indebt
edness (1) of the Company or of any Subsidiary of the Company in respect of
bankers' acceptances provided in the ordinary course of business, (2) of the
Company under Currency Agreements and Interest Rate Protection Agreements
which are entered into for the purpose of protection against risk of currency
or interest rate fluctuations affecting the Company or any of its Subsidiaries
in the ordinary course of business that are related to payment obligations of
the Company or any of its Subsidiaries otherwise permitted under this Inden-
ture, provided that in the case of Currency Agreements or Interest Rate Pro-
tection Agreements that relate to other Indebtedness, such
17
Currency Agreements or Interest Rate Protection Agreements do not increase the
obligations of the Company outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates or interest rates, as applica-
ble, or by reason of fees, indemnities and compensation payable thereunder and
(3) of the Company or any of the Subsidiaries of the Company in respect of
letters of credit issued in connection with self-insurance and reinsurance ob-
ligations incurred in the ordinary course of business, provided that the total
amount of outstanding Indebtedness incurred under this clause (3), other than
in connection with workers' compensation, unemployment insurance and other so-
cial security obligations, shall not exceed $9 million at any one time.
"Permitted Investments" means (a) investments held in the form of cash and
Cash Equivalents; (b) Investments in any Wholly Owned Subsidiary (or any Per-
son which will, upon the making of such Investment, become a Wholly Owned Sub-
sidiary) of the Company by the Company or by any other Wholly Owned Subsidiary
of the Company, provided that (i) any Indebtedness evidencing an Investment in
a Wholly Owned Subsidiary of the Company shall not be subordinated or junior
to any other Indebtedness or other obligation of such Wholly Owned Subsidiary
and (ii) such Investment shall only be a Permitted Investment so long as any
such Wholly Owned Subsidiary in which the Investment has been made or which
has made such Investment remains a Wholly Owned Subsidiary of the Company; (c)
Investments made after the Issue Date, not exceeding $15 million at any one
time in excess of Investments made as Restricted Payments, in joint ventures,
partnerships or Persons that are not Wholly Owned Subsidiaries of the Company
that are made solely for the purpose of acquiring or furthering businesses re-
lated to the Company's business; (d) Investments of the Company and its Sub-
sidiaries arising as a result of any Asset Sale otherwise complying with the
terms of this Indenture, provided that for each Asset Sale the maximum aggre-
gate amount of Investments permitted under this clause (d) shall not exceed
20% of the total consideration received for such Asset Sale by the Company or
any Subsidiary of the Company; (e) Investments in the Company by any Subsidi-
ary of the Company, provided that any Indebtedness evidencing such Investment
is subordinated to the Senior Notes; (f) Investments of the Company and its
Subsidiaries in the form of promissory notes or deferred payment obligations
as a result of the sale of the Company's business jet product line or its Ha-
gerstown, Maryland plant; provided that the aggregate amount of such non-cash
consideration does not exceed $15 million; (g) Investments arising from, or of
the type contemplated
18
by, the Company's Pooling and Servicing Agreement as in effect on the Issue
Date; (h) Investments received in connection with the bona fide settlement of
legal proceedings or other disputed obligations arising in the ordinary course
of business; (i) loans, advances or other extensions of credit to actual or
potential customers or suppliers that are made as part of the purchase or sale
of goods or services by the Company or any of its Subsidiaries, as made from
time to time by the Company or any Subsidiary in the ordinary course of busi-
ness and consistent with practices in the industry of the Company; and (j)
other Investments made after the Issue Date in the ordinary course of business
of the Company not to exceed $10 million at any one time.
"Permitted Liens" means, without duplication, (a) Liens for taxes, assess-
ments and governmental charges or levies (other than any Lien imposed by the
Employee Retirement Income Security Act of 1974, as amended) that are not yet
subject to penalties for non-payment or are being contested in good faith by
appropriate proceedings and for which adequate reserves, if required, have
been established or other provisions have been made in accordance with GAAP;
(b) statutory mechanics', workmen's, materialmen's, operators',
warehousemen's, repairmen's, and bankers' liens, and similar Liens imposed by
law and arising in the ordinary course of business for sums which are not
overdue by more than 15 days, or if so overdue, are being contested in good
faith by appropriate proceedings and for which adequate reserves, if required,
have been established or other provisions have been made in accordance with
GAAP; (c) minor imperfections of, or encumbrances on, title that do not impair
the value of property for its intended use; (d) Liens (other than any Lien un-
der the Employee Retirement Income Security Act of 1974, as amended) incurred
or deposits made in the ordinary course of business in connection with (or
made to secure reinsurance obligations of the Company or any of its Subsidiar-
ies incurred in connection with its or their obligations with respect to)
workers' compensation, unemployment insurance and other types of social secu-
rity; (e) Liens incurred or deposits made to secure the performance of ten-
ders, bids, leases, statutory or regulatory obligations, bankers' acceptances,
surety and appeal bonds, government contracts, performance and return of money
bonds and other obligations of a similar nature incurred in the ordinary
course of business (exclusive of obligations for the payment of borrowed mon-
ey); (f) easements, rights-of-way, municipal and zoning ordinances and similar
charges, encumbrances, title defects or other irregularities that do not mate-
rially interfere with the ordinary course of business of the Company or of any
19
of its Subsidiaries; (g) Liens (including extensions and renewals thereof)
upon real or tangible personal property acquired after the Issue Date, pro-
vided that (1) any such Lien is created solely for the purpose of securing In-
debtedness (other than Permitted Indebtedness) (A) that is incurred in accor-
dance with Section 4.05 or 4.09 to finance the cost (including the cost of im-
provement or construction) of the item of property or assets subject thereto
and such Lien is created prior to, at the time of or within 365 days after the
later of the acquisition, the completion of construction or the commencement
of full operation of such property or (B) that is Permitted Refinancing In-
debtedness to Refinance any Indebtedness previously so secured, (2) the prin-
cipal amount of the Indebtedness secured by any such Lien does not exceed 100%
of such cost and (3) any such Lien shall not extend to or cover any property
or assets of the Company or of any of its Subsidiaries other than such item of
property or assets and any improvements on such item; (h) leases or subleases
granted to others that do not materially interfere with the ordinary course of
business of the Company or of any of its Subsidiaries; (i) Liens encumbering
property or assets to secure repayment of advances, deposits or progress or
partial payments by a customer of the Company or of any of its Subsidiaries
relating to such property or assets; (j) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (k) Liens in favor of
the Company or any Wholly Owned Subsidiary of the Company; (l) Liens secured
by real property or other assets of the Company or of any Subsidiary of the
Company in connection with the financing of industrial revenue and similar
bond facilities and related obligations or of any equipment or other property
designed primarily for the purpose of air or water pollution control, provided
that any such Lien on such facilities, equipment or other property shall not
apply to any other property or assets of the Company or of such Subsidiary of
the Company; (m) Liens arising from the rendering of a final judgment or order
against the Company or any Subsidiary of the Company that does not give rise
to an Event of Default; (n) Liens securing reimbursement obligations with re-
spect to letters of credit incurred in accordance with this Indenture that en-
cumber documents and other property relating to such letters of credit and the
products and proceeds thereof; (o) Liens in favor of customs and revenue au-
thorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; (p) Liens encumbering customary ini-
tial deposits and margin deposits, and other Liens that are within the general
parameters customary in the industry and incurred in the ordinary course of
business securing Indebtedness under Interest Rate Protection Agreements
20
and Currency Agreements and forward contracts, options, futures contracts,
futures options or fluctuations in the price of commodities; (q) Liens on
sales of receivables; (r) Liens in favor of the Trustee arising under this In-
denture; (s) Liens incurred or deposits made in the ordinary course of busi-
ness to secure up to $9 million of self-insurance and reinsurance obligations,
other than obligations related to workers' compensation, unemployment insur-
ance and other types of social security; and (t) deposits made to secure pro-
curement credit card obligations arising from miscellaneous, non-repetitive
purchases of supplies and services in the ordinary course of business, with no
such purchase to exceed $5,000.
"Permitted Payments" means, so long as no Default or Event of Default shall
have occurred and be continuing or would result as a consequence thereof, (a)
the prepayment, acquisition, retirement or decrease of Indebtedness of the
Company that is subordinated (whether pursuant to its terms or by operation of
law) to the Senior Notes that is prepaid, acquired, decreased or retired (i)
by conversion into or in exchange for Qualified Capital Stock of the Company
or (ii) in exchange for or with or out of the net cash proceeds of the sub-
stantially concurrent sale (other than by the Company to a Subsidiary of the
Company) of Permitted Refinancing Indebtedness (b) payroll, travel, relocation
and similar advances to employees of the Company or any Subsidiaries in the
ordinary course of the Company's business; (c) loans to employees (other than
travel advances) not to exceed $500,000 in the aggregate at any one time out-
standing; (d) any purchases, redemptions, acquisitions, cancellations or other
retirement for value of shares of Capital Stock of the Company or of any Sub-
sidiary of the Company, options on any such shares or related stock apprecia-
tion rights or similar securities held by officers, directors or employees or
former officers or employees (or their estates or beneficiaries under their
estates) and which were issued pursuant to any stock option plan (or other di-
rector officer or employee benefit plan or agreement), upon death, disability,
retirement, termination of employment or pursuant to the terms of such plan or
agreement and which in the aggregate do not exceed $1,000,000 in any fiscal
year; (e) the purchase at a price of not more than $.05 per right of any
rights issued or issuable pursuant to currently existing or future rights
plans of the Company, provided that such purchase shall not exceed $3 million
in the aggregate; or (f) the retirement of shares of the Company's Capital
Stock in exchange for or out of the proceeds of a substantially concurrent
sale (other than a sale to a Subsidiary of the Company) of other shares of its
Capital Stock (other than Disqualified Capital Stock).
21
"Permitted Program Investment" means an investment in design, engineering,
tooling or similar costs related to a program undertaken by the Company in the
ordinary course of its business.
"Permitted Refinancing Indebtedness" means Indebtedness of the Company or of
any of the Company's Subsidiaries or Preferred Stock of a Subsidiary of the
Company, the net proceeds of which are used to Refinance outstanding Indebted-
ness of the Company or of any of the Company's Subsidiaries that was outstand-
ing as of the Issue Date or incurred in accordance with this Indenture or Pre-
ferred Stock of a Subsidiary of the Company that was out standing as of the
Issue Date or issued in accordance with this Indenture, provided that (a) if
the Indebtedness (including the Senior Notes) being Refinanced (the "Existing
Indebtedness") is pari passu with or subordinated to the Senior Notes, then
any Indebtedness Refinancing of the Existing Indebtedness (the "New Indebted-
ness") shall be pari passu with or subordinated to, as the case may be, the
Senior Notes, at least to the same extent and in the same manner as the Exist-
ing Indebtedness is to the Senior Notes, (b) such New Indebtedness has a
Stated Maturity no earlier than the Stated Maturity of the Existing Indebted-
ness, (c) such New Indebtedness has an Average Life at the time such New In-
debtedness is incurred that is equal to or greater than the Average Life of
the Existing Indebtedness as of the date of such Refinancing, (d) such New In-
debtedness is in an aggregate principal amount (or, if such New Indebtedness
is issued at a price less than the principal amount thereof, the aggregate
amount of gross proceeds therefrom is) not in excess of the aggregate princi-
pal amount outstanding under the Existing Indebtedness on the date of the pro-
posed Refinancing thereof (or if the Existing Indebtedness was issued at a
price less than the principal amount thereof, then not in excess of the amount
of liability in respect thereof determined in accordance with GAAP as of the
date of such proposed Refinancing), (e) with respect to such Preferred Stock
of the Company's Subsidiaries, Preferred Stock issued in exchange for or the
proceeds of which are used to Refinance such existing Preferred Stock of a
Subsidiary ("New Preferred Stock") shall have (i) a Stated Maturity no earlier
than the Stated Maturity of the Preferred Stock being exchanged or Refinanced,
(ii) an Average Life at the time such New Preferred Stock is proposed to be
incurred that is equal to or greater than the Average Life of the Preferred
Stock to be exchanged or Refinanced as of the date of such proposed exchange
or Refinancing and (iii) a liquidation value no greater than the liquidation
value of the Preferred Stock to be exchanged or Refi-
22
nanced as of the date of such proposed exchange or Refinancing and (f) if such
Existing Indebtedness is Indebtedness solely of the Company, such New Indebt-
edness will only be permitted if it is Indebtedness solely of the Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, estate, unincorporated organization or government or any agency or po-
litical subdivision thereof.
"Plan of Liquidation" means a plan (including by operation of law) that pro-
vides for, contemplates or the effectuation of which is preceded or accompa-
nied by (whether or not substantially contemporaneously) (a) the sale, lease,
conveyance or other disposition of all or substantially all of the assets of
the Company otherwise than as an entirety or substantially as an entirety and
(b) the distribution of all or substantially all of the proceeds of such sale,
lease, conveyance or other disposition and all or substantially all of the re-
maining assets of the Company to holders of Capital Stock of the Company.
"Pooling and Servicing Agreement" means the Pooling and Servicing Agreement
dated as of December 23, 1992, among the Company, the Company's Wholly Owned
Subsidiary RI Receivables, Inc. and Bankers Trust Company, as trustee on be-
half of the Certificateholders (as defined therein), and related documentation
and any extension, renewal, modification, restatement or replacement thereof
(in whole or in part), as the same may be amended, supplemented or otherwise
modified from time to time, provided, however, the investors in any such re-
ceivables program shall not obtain an interest in receivables sold under such
program which exceeds $70 million in aggregate principal amount at any one
time.
"Preferred Stock" means the Capital Stock of any Person (other than the Com-
mon Stock of such Person) of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of as-
sets upon any voluntary or involuntary liquidation, dissolution or winding-up
of such Person, to shares of Capital Stock of any other class of such Person.
"pro forma" means, with respect to any calculation made or required to be
made pursuant to the terms of this Indenture, a calculation in accordance with
Article 11 of Regulation S-X under the Securities Act.
"Prospectus" means the Company's final prospectus dated , 1994 in respect of
the public offering of the Senior Notes.
23
"Qualified Capital Stock" means, with respect to any Person, any Capital
Stock of such Person that is not Disqualified Capital Stock or convertible
into or exchangeable or exercisable for Disqualified Capital Stock and in-
cludes rights and other securities issuable under the Company's Amended and
Restated Rights Agreement, dated as of April 6, 1990, between the Company and
The First National Bank of Chicago, as Rights Agent, as such agreement may be
amended or supplemented from time to time.
"redemption date" when used with respect to any of the Senior Notes to be
redeemed, means the date fixed by the Company for such redemption pursuant to
this Indenture and the Senior Notes.
"redemption price" when used with respect to any of the Senior Notes to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Senior Notes.
"Reference Period" has the meaning set forth in the definition of "Consoli-
dated Fixed Charge Coverage Ratio."
"Refinance" means, in respect of any security or Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a
security or Indebtedness in exchange or replacement for, such security or In-
debtedness in whole or in part. "Refinanced" and "Refinancing" shall have cor-
relative meanings.
"Restricted Payment" means (a) the declaration or payment of any dividend or
the making of any other distribution, including any dividend or distribution
made in connection with the merger or consolidation of the Company (whether in
any such case in cash, securities or other property or assets of the Company
or of any of its Subsidiaries), on the Company's or any of its Subsidiaries'
Capital Stock, or to the holders of the Company's or any of its Subsidiaries'
Capital Stock, whether outstanding on the Issue Date or thereafter (other than
dividends or distributions payable solely in Qualified Capital Stock of the
Company or of such Subsidiary (subject to the last paragraph of Section 4.06)
and other than any dividend or distribution declared or paid by any Wholly
Owned Subsidiary of the Company); (b) the making of any Investment by the Com-
pany or any of its Subsidiaries in any Person other than Permitted Invest-
ments; (c) any purchase, redemption, retirement or other acquisition for value
by the Company or any Subsidiary of any Capital Stock of the Company or of any
of its Subsidiaries or of any Affiliate of the Company
24
or any other securities of a direct or indirect parent of the Company, whether
outstanding on the Issue Date or thereafter, or any warrants, rights or op-
tions to purchase or acquire shares of the Capital Stock of the Company or of
any of its Subsidiaries or of any Affiliate of the Company, whether outstand-
ing on the Issue Date or thereafter, held by any Person other than the Company
or one of its Wholly Owned Subsidiaries, other than through the issuance in
exchange therefor solely of Qualified Capital Stock of the Company or of such
Subsidiary; or (d) the prepayment, acquisition, decrease or retirement for
value prior to maturity, scheduled repayment or scheduled sinking fund payment
of any Indebtedness of the Company that is subordinated (whether pursuant to
its terms or by operation of law) to the Senior Notes, in each case to the ex-
tent not contained within the definition of "Permitted Payments". The dollar
amount of any non-cash dividend or distribution by the Company or any of its
Subsidiaries on the Company's or any Subsidiary's Capital Stock shall be equal
to the Fair Market Value of such dividend or distribution at the time of such
dividend or distribution.
"Revolving Credit Agreement" means the Credit Agreement dated as of April
26, 1989, among the Company, the lenders party thereto, and the Bank Agent,
and any agreement governing Indebtedness incurred to refund or Refinance the
borrowings, letters of credit and commitments then outstanding or permitted to
be outstanding under the Revolving Credit Agreement, in each case together
with the related notes and any other instruments and agreements executed from
time to time in connection therewith, and in each case as amended, modified,
supplemented, extended, renewed, restated, refunded, replaced or refinanced
(in whole or in party, and without limitation as to amount, terms, conditions,
covenants and other provisions) from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Notes" means the Senior Notes issued under this Indenture.
"Stated Maturity" means, with respect to any security or Indebtedness, the
date specified therein as the fixed date on which any principal of such secu-
rity or Indebtedness is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
thereof at the option of the holder thereof).
25
A "Subsidiary" of a Person means (a) a corporation a majority of whose Vot-
ing Stock is at the time, directly or indirectly, owned by such Person, by one
or more Subsidiaries of such Person or by such Person and one or more Subsidi-
aries of such Person or (b) any other Person (other than a corporation) in
which such Person, one or more Subsidiaries of such Person or such Person and
one or more Subsidiaries of such Person, directly or indirectly, at the date
of determination thereof, have (i) at least a majority ownership interest or
(ii) the power to elect or direct the election of the directors or other gov-
erning body of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ((S))((S)) 77aaa-
77-bbbb) as in effect on the date of execution of this Indenture, except as
provided in Section 9.03.
"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 any officer within the Corporate Trust & Agencies Ad-
ministration Department (or any successor department) of the Trustee, includ-
ing any vice president, assistant vice president, assistant secretary, direc-
tor or associate director; any other officer of the Trustee customarily per-
forming functions similar to those performed by any officer of the Corporate
Trust & Agencies Administration Department; and any other officer of the
Trustee to whom any corporate trust matter is referred because of such per-
son's knowledge of and familiarity with the particular subject.
"Voting Stock" means, with respect to any Person, securities of any class or
classes of Capital Stock of such Person entitling the holders thereof (whether
at all times or only so long as no senior class of stock has voting power by
reason of any contingency) to vote in the election of members of the board of
directors or other governing body of such Person.
"Wholly Owned Subsidiary" means, with respect to any Person, any Subsidiary
of such Person all the outstanding shares of Capital Stock (other than direc-
tors' qualifying shares, if applicable) of which are owned directly by such
Person or another Wholly Owned Subsidiary of such Person.
26
Section 1.02 Other Definitions.
DEFINED IN
TERM SECTION
- ---- ----------
"Affiliate Transaction".............................................. 4.08
"Asset Sale Offer"................................................... 4.10
"Asset Sale Offer Amount"............................................ 4.10
"Asset Sale Offer Payment Date"...................................... 4.10
"Asset Sale Offer Termination Date".................................. 4.10
"Asset Sale Offer Trigger Date"...................................... 4.10
"Bankruptcy Law"..................................................... 6.01
"Business Day"....................................................... 10.07
"Change of Control Date"............................................. 4.16
"Change of Control Offer"............................................ 4.16
"Change of Control Offer Payment Date"............................... 4.16
"Change of Control Offer Termination Date"........................... 4.16
"Custodian".......................................................... 6.01
"Event of Default"................................................... 6.01
"Legal Holiday"...................................................... 10.07
"Paying Agent"....................................................... 2.03
"Registrar".......................................................... 2.03
"United States Government Obligations"............................... 8.01
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the Commission;
"indenture securities" means the Senior Notes;
"indenture security holder" means a holder of a Senior Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Senior Notes means the Company or any other obligor on
the Senior 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.
27
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include
the singular; and
(e) the male, female and neuter genders include one another.
ARTICLE 2
The Senior Notes
Section 2.01 Form and Dating.
The Senior Notes and the Trustee's certificate of authentication relating
thereto shall be substantially in the form set forth in Exhibit A, which is
part of this Indenture, with such appropriate insertions, omissions, substitu-
tions and other variations as are required or permitted by this Indenture. The
Senior Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. The Company shall approve the form of the Senior
Notes and any notation, legend or endorsement on them. Each Senior Note shall
be dated the date of its authentication.
The terms and provisions contained in the Senior Notes shall constitute, and
are hereby expressly made, a part of this Indenture and, to the extent appli-
cable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound there-
by.
Section 2.02 Execution and Authentication.
Two Officers shall sign the Senior Notes for the Company by manual or fac-
simile signature. The Company's seal shall be reproduced on the Senior Notes.
If an Officer whose signature is on a Senior Note no longer holds that of-
fice at the time the Senior Note is authenticated, the Senior Note shall nev-
ertheless be valid.
28
A Senior Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Senior
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 Senior Notes for original issue up to the aggregate
principal amount stated in paragraph 4 of the Senior Notes. The aggregate
principal amount of Senior Notes outstanding at any time may not exceed that
amount except as provided in Section 2.07.
The Senior 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 Senior Notes. An authenticating agent may authenticate Senior
Notes whenever the Trustee may do so. Each reference in this Indenture to au-
thentication by the Trustee includes authentication by such agent. An authen-
ticating agent has the same right as an Agent to deal with the Company or an
Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
The Company shall maintain or cause to be maintained in the Borough of Man-
hattan, New York, New York (the "New York Office"), and in such other loca-
tions as it shall determine, an office or agency: (a) where securities may be
presented for registration of transfer or for exchange ("Registrar"); (b)
where Senior Notes may be presented for payment ("Paying Agent"); and (c)
where notices and demand to or upon the Company in respect of Senior Notes and
this Indenture may be served by the holders of Senior Notes. The Registrar
shall keep a register of the Senior Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent, Registrar 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 or co-registrar not a party
to this Indenture. The agreement shall implement the provisions of this Inden-
ture that relate to such Agent. The Company or any of its Subsidiaries may act
as Paying Agent, Registrar or co-registrar, except that for purposes of Arti-
cles 3 and 8 and Sections 4.10 and 4.16, neither the
29
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, the
Trustee shall act as such, and the Trustee shall initially act as such. The
Trustee shall cause the New York Office to be maintained as long as it acts as
Registrar or Paying Agent.
Section 2.04 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 Senior Notes or the Trustee all money held
by the Paying Agent for the payment of principal or interest on the Senior
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 re-
quire 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 Senior Notes all money held by it as Paying Agent.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of holders of
Senior Notes. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven days before each interest payment date and at
such other times as the Trustee may request in writing a list in such form and
as of such date as the Trustee may reasonably require of the names and ad-
dresses of holders of Senior Notes.
section 2.06 Transfer and Exchange.
Where Senior 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 Senior 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 Senior Notes at the Registrar's re-
quest.
30
No service charge shall be made for any registration of transfer or exchange
(except as otherwise expressly permitted herein), but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.10, 3.06 or 9.05.
The Company shall not be required (a) to issue, register the transfer of or
exchange Senior Notes during a period beginning at the opening of business 15
days before the day of any selection of Senior Notes for redemption under Sec-
tion 3.02 and ending at the close of business on the day of selection, or (b)
to register the transfer or exchange of any Senior Note so selected for re-
demption in whole or in part, except the unredeemed portion of any Senior Note
being redeemed in part.
section 2.07 Replacement Senior Notes.
If the holder of a Senior Note claims that the Senior Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Senior Note if the Trustee's requirements are met.
If required by the Trustee or the Company as a condition of receiving a re-
placement Senior Note, the holder of Senior Note must provide 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 which any of them may suffer if the Senior Note is replaced. The Com-
pany and the Trustee may charge the relevant holder for their expenses in re-
placing any Senior Note.
Every replacement Senior Note is an additional obligation of theCompany.
section 2.08 Outstanding Senior Notes.
The Senior Notes outstanding at any time are all the Senior Notes properly
authenticated by the Trustee except for those cancelled by the Trustee, those
delivered to it for cancellation, and those described in this Section as not
outstanding.
If a Senior Note is replaced pursuant to Section 2.07, it ceases to be out-
standing unless the Trustee receives proof satisfactory to it that the re-
placed Senior Note is held by a bona fide purchaser.
31
If Senior Notes are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
A Senior Note does not cease to be outstanding because the Company or an Af-
filiate of the Company holds the Senior Note.
section 2.09 When Treasury Senior Notes Disregarded.
In determining whether the holders of the required principal amount of Se-
nior Notes have concurred in any direction, waiver or consent, Senior 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 Senior Notes which the Trustee knows are so owned
shall be so disregarded.
section 2.10 Temporary Senior Notes.
Until definitive Senior Notes are ready for delivery, the Company may pre-
pare and the Trustee shall authenticate temporary Senior Notes. Temporary Se-
nior Notes shall be substantially in the form of definitive Senior Notes but
may have variations that the Company considers appropriate for temporary Se-
nior Notes. If temporary Senior Notes are issued, the Company will cause de-
finitive Senior Notes to be prepared without unreasonable delay. After the
preparation of definitive Senior Notes, the temporary Senior Notes shall be
exchangeable for definitive Senior Notes upon surrender of the temporary Se-
nior Notes at any office or agency of the Company designated pursuant to Sec-
tion 2.03 without charge to the holder. Upon surrender for cancellation of any
one or more temporary Senior Notes the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Senior Notes of authorized denominations. Until so exchanged, the
temporary Senior Notes shall in all respects be entitled to the same benefits
under this Indenture as definitive Senior Notes.
section 2.11 Cancellation.
The Company at any time may deliver Senior Notes to the Trustee for cancel-
lation. The Registrar and Paying Agent shall forward to the Trustee any Senior
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel Senior Notes surrendered
32
for registration of transfer, exchange, payment, replacement or cancellation
and shall dispose of cancelled Senior Notes as the Company directs. The Com-
pany may not issue new Senior Notes to replace Senior Notes that it has paid
or that have been delivered to the Trustee for cancellation.
section 2.12 Defaulted Interest.
If the Company fails to make a payment of interest on the Senior 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 Senior
Notes on a subsequent special record date. The Company shall fix any such rec-
ord date and payment date. At least 15 days before any such record date, the
Company shall mail to holders of Senior 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 Senior Notes may use a "CUSIP" number, and if so,
such CUSIP number shall be included in notices of redemption or exchange as a
convenience to holders of Senior Notes; provided, however, that any such no-
tice may state that no representation is made as to the correctness or accu-
racy of the CUSIP number printed in the notice or on the Senior Notes and that
reliance may be placed only on the other identification numbers printed on the
Senior Notes. The Company will promptly notify the Trustee of any change in
the CUSIP number.
ARTICLE 3
Redemption
section 3.01 Notices to Trustee.
If the Company elects to redeem Senior Notes pursuant to the optional re-
demption provisions of paragraph 5 of the Senior Notes, it shall notify the
Trustee of the redemption date and the principal amount of Senior Notes to be
redeemed. The redemption price shall be the amount determined pursuant to par-
agraph 5 of the Senior Notes.
33
The Company shall give each notice provided for in this Section at least 50
days before the redemption date (unless a shorter notice period shall be sat-
isfactory to the Trustee).
section 3.02 Selection of Senior Notes To Be Redeemed.
If less than all the Senior Notes are to be redeemed, the Trustee shall se-
lect the Senior Notes to be redeemed by lot or pro rata or by any other method
that the Trustee considers fair and appropriate. The Trustee shall make the
selection not more than 75 days and not less than 30 days before the redemp-
tion date from Senior Notes outstanding not previously called for redemption.
The Trustee may select for redemption a portion of the principal of Senior
Note that has a denomination larger than $1,000. Senior Notes and portions
thereof will be redeemed in the amount of $1,000 or integral multiples of
$1,000. Provisions of this Indenture that apply to Senior Notes called for re-
demption also apply to portions of Senior Notes called for redemption. The
Trustee will make the selection of Senior Notes outstanding and not previously
called for redemption. The Trustee shall notify the Company promptly of the
Senior Notes or portions of Senior Notes to be called for redemption.
section 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption to each holder whose Senior Notes
are to be redeemed.
The notice shall identify the Senior Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Senior Note is being redeemed in part, the portion of the
principal amount of such Senior Note to be redeemed and that, after the
redemption date, upon surrender of such Senior Note, a new Senior Note or
Senior Notes in principal amount equal to the unredeemed portion will be
issued;
(d) that Senior Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(e) that interest on Senior Notes called for redemption and for which
funds have been set apart for payment, ceases to accrue on and after the
34
redemption date (unless the Company defaults in the payment of the redemp-
tion price);
(f) the paragraph of the Senior Notes pursuant to which the Senior Notes
are being redeemed;
(g) the aggregate principal amount of Senior Notes that are being re-
deemed;
(h) the CUSIP number of the Senior Notes (provided that the disclaimer
permitted by Section 2.13 may be made); and
(i) the name and address of the Paying Agent.
At the Company's request, the Trustee shall give notice of redemption in the
Company's name and at its expense.
section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed, Senior Notes called for redemption be-
come due and payable on the redemption date at the price set forth in the Se-
nior Note.
section 3.05 Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the Trustee
or with the Paying Agent money in immediately available funds sufficient to
pay the redemption price of and accrued interest on all Senior Notes to be re-
deemed on that date. The Trustee or the Paying Agent shall return to the Com-
pany any money not required for that purpose.
section 3.06 Senior Notes Redeemed in Part.
Upon surrender of a Senior Note that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the holder of a Senior Note at
the expense of the Company a new Senior Note equal in principal amount to the
unredeemed portion of the Senior Note surrendered.
35
ARTICLE 4
Covenants
Section 4.01 Payment of Senior Notes.
The Company shall pay the principal of and interest on the Senior Notes on
the dates and in the manner provided in the Senior Notes. Principal and inter-
est 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 as of 1:00 P.M.
Eastern Time on that date immediately available funds designated for and suf-
ficient to pay all principal and interest then due.
To the extent lawful, the Company shall pay interest (including post- peti-
tion interest in any proceeding under any Bankruptcy Law) on (a) overdue prin-
cipal, at the rate borne by Senior Notes, compounded semiannually; and (b)
overdue installments of interest (without regard to any applicable grace peri-
od) at the same rate, compounded semiannually.
Section 4.02 Commission Reports.
So long as any Senior Note is outstanding, the Company shall file with the
Commission and, within 15 days after it files them with the Commission, file
with the Trustee and thereafter promptly mail or promptly cause the Trustee to
mail to the holders of Senior Notes at their addresses as set forth in the
register of the Senior Notes copies of the annual reports and of the informa-
tion, documents and other reports which the Company is required to file with
Commission pursuant to Section 13 or 15(d) of the Exchange Act or which the
Company would be required to file with the Commission if the Company then had
a class of securities registered under the Exchange Act. In addition, the Com-
pany shall cause its annual report to stockholders and any quarterly or other
financial reports furnished to its stockholders generally to be filed with the
Trustee, no later than the date such materials are mailed or made available to
the Company's stockholders, and thereafter mailed promptly to the holders of
Senior Notes at their addresses as set forth in the register of Senior Notes.
Section 4.03 Compliance Certificate.
The Company shall deliver to the Trustee, within 60 days after the end of
the first three fiscal quarters and within 120 days after the end of each fis-
cal
36
year of the Company, an Officers' Certificate stating that a review of the ac-
tivities of the Company and its Subsidiaries during the preceding fiscal pe-
riod has been made under the supervision of the signing Officers with a view
to determining whether the Company has fully performed its obligations under
this Indenture and further stating, as to each such Officer signing such cer-
tificate, that to the best of his or her knowledge the Company has kept, ob-
served, performed and fulfilled each and every covenant contained in this In-
denture and is not in default in the performance or observance of any of the
terms and conditions hereof (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) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of
the principal of or interest on the Senior Notes are prohibited.
The Company shall, so long as any of the Senior Notes are outstanding, de-
liver to the Trustee, forthwith upon becoming aware of any Default, Event of
Default or default in the performance of any term or condition in this Inden-
ture, without regard to any period of grace or requirement of notice provided
hereunder, an Officers' Certificate specifying such Defaults, Event of Default
or default.
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, at the time the Officers'
Certificate described in the second preceding paragraph is filed with respect
to any fiscal year end of the Company, the Company also shall file with the
Trustee a letter or statement of the independent accountants who shall have
certified the financial statements of the Company for its preceding fiscal
year in connection with the annual report of the Company to its stockholders
for such year to that effect that, in making the examination necessary for
certification of such financial statements, nothing came to their attention
that would lead them to believe that the Company has violated any of the terms
or conditions contained in Sections 4.05, 4.06 and 4.09 of this Indenture,
which Default remains uncured at the date of such letter or statement or, if
they shall have obtained knowledge of any such uncured Default, specifying in
such letter or statement such Default or Defaults and the nature thereof, it
being understood that such accountants shall not be liable directly or
indirectly for failure to obtain knowledge of any such Default or Defaults and
that their examination was not directed primarily toward obtaining knowledge
of such non compliance.
37
Section 4.04 Maintenance of Office or Agency.
The Company shall maintain or cause to be maintained the office or agency
required under Section 2.03. 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.
The Company may also from time to time designate one or more other offices
or agencies where the Senior Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designation; provid-
ed, however, that no such designation or rescission shall in any manner re-
lieve the Company of its obligation to maintain or cause to be maintained an
office or agency in the City of New York for such purpose.
Section 4.05 Limitation on Indebtedness.
The Company shall not, directly or indirectly, incur any Indebtedness (in-
cluding Acquired Indebtedness) other than Permitted Indebtedness, unless (a)
no Default or Event of Default shall have occurred and be continuing at the
time of the proposed incurrence thereof or shall occur as a result of such
proposed incurrence and (b) after giving effect to such proposed incurrence
the Company's Consolidated Fixed Charge Coverage Ratio would be greater than
2.0 to 1.0 on or prior to July 31, 1996, and 2.25 to 1.0 on or after August 1,
1996.
Section 4.06 Limitation on Restricted Payments.
The Company shall not, and shall not permit or cause any of its Subsidiaries
to, directly or indirectly, make any Restricted Payment unless, at the time of
such proposed Restricted Payment, and on a pro forma basis immediately after
giving effect thereto:
A. no Default or Event of Default has occurred and is continuing;
B. the aggregate amount expended for all Restricted Payments subsequent
to the Issue Date would not exceed the sum of:
(1) 50% of aggregate Consolidated Net Income of the Company (or if
such Consolidated Net Income is a loss, minus 100% of such loss)
earned on a cumulative basis during the period beginning on May 2,
1994 and ending on the last date of the Company's fiscal quarter imme-
diately preceding such proposed Restricted Payment; plus
38
(2) 100% of the aggregate Net Equity Proceeds received by the Com-
pany from any Person (other than from a Subsidiary of the Company)
from the issuance and sale subsequent to the Issue Date of Qualified
Capital Stock of the Company (excluding (a) any Qualified Capital
Stock of the Company paid as a dividend on any Capital Stock of the
Company or of any of its Subsidiaries or as interest on any Indebted-
ness of the Company or of any of its Subsidiaries, (b) the issuance of
Qualified Capital Stock upon the conversion of, or in exchange for,
any Capital Stock of the Company or of any of its Subsidiaries and (c)
any Qualified Capital Stock of the Company with respect to which the
purchase price thereof has been financed directly or indirectly using
funds (i) borrowed from or advanced by the Company or any of its Sub-
sidiaries, unless and until and to the extent such borrowing advanced
is repaid or (ii) contributed or guaranteed by the Company or by any
of its Subsidiaries (including, without limitation, in respect of any
employee stock ownership or benefit plan) unless and until such guar-
antee terminates; and
C. The Company would be able to incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under clause (a) of Section 4.05 (as-
suming a market rate of interest with respect thereto).
The foregoing provisions of this covenant will not prevent: (a) the payment
of any dividend within 60 days after the date of its declaration if at such
date of declaration the payment of such dividend would comply with the provi-
sions set forth above, provided that (i) such dividend will be deemed to have
been paid as of its date of declaration for the purposes of this covenant and
(ii) at the time of payment of such dividend no other Default or Event of De-
fault shall have occurred and be continuing or would result therefrom, (b) if
no Default or Event of Default shall have occurred and be continuing or would
occur as a consequence thereof, the purchase, redemption, retirement or acqui-
sition of any shares of Capital Stock of the Company or of any Subsidiary or
any Indebtedness of the Company that is subordinated to the Senior Notes
solely by conversion into, in exchange for or with or out of the net cash pro-
ceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company and neither such
purchase, redemption, retirement, acquisition, conversion or exchange nor the
proceeds of any such sale shall be included in any computation made under
clause (B)(2) above or (c) the making of any Permitted Payments. The amounts
expended pursuant to clauses (a) and (c) (with respect to those items identi-
fied in clauses (a)(i), (d), (e) or (f) of the definition
39
of Permitted Payments) of this paragraph will be included in computing the
amounts available for Restricted Payments for purposes of the immediately pre-
ceding paragraph.
For purposes of this covenant a distribution to holders of the Company's
Capital Stock of (a) shares of Capital Stock of any of its Subsidiaries or (b)
other assets of the Company or of any of its Subsidiaries, without, in either
case, the receipt of equivalent consideration therefor shall be deemed to be
the equivalent of a cash dividend equal to the excess of the Fair Market Value
of the shares or other assets being so distributed at the time of such distri-
bution over the consideration, if any, received therefor.
Section 4.07 Limitations on Payment Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any of its Subsidiaries to, di-
rectly or indirectly, create or become (after the Issue Date) subject to any
consensual encumbrance or restriction of any kind (a) on the ability of any
such Subsidiary to (i) pay dividends, in cash or otherwise, or make other pay-
ments or distributions on its Capital Stock or any other equity interest or
participation in, or measured by, its profits, owned by the Company or by any
of its Subsidiaries, or make payments on any Indebtedness owed to the Company
or to any of its Subsidiaries, (ii) make loans or advances to the Company or
to any of its Subsidiaries, (iii) transfer any of their respective property or
assets to the Company or to any of its Subsidiaries or (b) on the ability of
the Company or any of its Subsidiaries to receive or retain any such (i) divi-
dends, payments or distributions, (ii) loans or advances or (iii) transfer of
property or assets, except for such encumbrances or restrictions existing un-
der or by reason of (1) customary provisions restricting subletting, transfer
or assignment under any lease governing a leasehold interest of the Company or
of any of its Subsidiaries, (2) applicable law, (3) reasonable covenants set
forth in the agreements governing the formation of a joint venture otherwise
permitted by this Indenture, (4) Acquired Indebtedness incurred in accordance
with this Indenture, provided that such encumbrance or restriction in respect
of such Acquired Indebtedness is not applicable to any Person, or the property
of any Person, other than the Person, or the property of the Person, so ac-
quired and that such Acquired Indebtedness was not incurred by the Company or
any of its Subsidiaries or by the Person being acquired in connection with or
anticipation of such acquisition, (5) with respect to clause (a)(iii) and
(b)(iii) above, purchase money obligations for property acquired in the ordi-
nary course of
40
business, (6) Indebtedness outstanding immediately after the Issue Date (as in
effect on the Issue Date), (7) customary provisions in instruments or agree-
ments relating to a Lien permitted to be created, incurred or assumed pursuant
to the provisions of Section 4.11 hereof which restrict the transfer of the
property or assets subject to such Lien, (8) customary provisions in any
agreement otherwise permitted under this Indenture which (i) provide that
transactions between the Company and its Subsidiaries be no less favorable to
any such Subsidiary than could be obtained from an unaffiliated third party,
and (ii) do not have any material adverse effect on the ability of such Sub-
sidiary to pay dividends to the Company or otherwise advance cash, directly or
indirectly to the Company on terms no less favorable to any such Subsidiary
than could be obtained from an unaffiliated third party or (9) any New Indebt-
edness that is Permitted Refinancing Indebtedness incurred to Refinance any of
the Indebtedness set forth in clauses (4), (5) and (6) above to the extent
such encumbrance or restriction in respect of the New Indebtedness is no less
favorable to the holders and no more restrictive than such encumbrances or re-
strictions contained in the Indebtedness being Refinanced as of the date of
such Refinancing and do not extend to or cover any other Person or the prop-
erty of any other Person other than the Person in respect of whom such encum-
brance or restriction relating to the Indebtedness being Refinanced applied.
Section 4.08 Limitations on Transactions with Affiliates.
The Company shall not, nor shall the Company permit any of its Subsidiaries
to, (a) sell, lease, transfer or otherwise dispose of any of its property or
assets to, (b) purchase any property or assets from, (c) make any Investment
in, or (d) enter into or amend any contract, agreement or understanding with
or for the benefit of, any Affiliate of the Company or of any Subsidiary of
the Company (an "Affiliate Transaction"), other than Affiliate Transactions
that, in its reasonable judgment are necessary or desirable for the Company or
such Subsidiary in the conduct of its business and that (i) a majority of the
members of the Board of Directors of the Company reasonably and in good faith
determines are in the best interests of the Company or such Subsidiary and
(ii) are on terms (which terms are in writing) that are fair and reasonable to
the Company or the Subsidiary and that are no less favorable to the Company or
such Subsidiary than those that could be obtained in a comparable arm's length
transaction by the Company or such Subsidiary from an unaffiliated party, as
determined reasonably and in good faith by the Board of Directors of the Com-
pany, provided that if the Company or any Subsidiary of the Company enters
into an Affiliate Transaction or series of Affiliate Transactions involving or
having an aggregate value of more than $10 million such Affiliate Transaction
shall, prior to the consummation thereof, have been approved by
41
a majority of the disinterested directors of the Company (or by a majority of
the disinterested directors on any committee of directors authorized to con-
sider such matter, provided that the delegation of such matter to such commit-
tee has been approved by a majority of disinterested directors of the Company)
and, provided, further, that with respect to any such transaction or series of
related transactions that involve an aggregate value of more than $20 million
the Company or such Subsidiary shall, prior to the consummation thereof, ob-
tain a favorable opinion as to the fairness to itself of such transaction or
series of related transactions from a financial point of view from an Indepen-
dent Financial Advisor and file the same with the Trustee. The foregoing re-
striction shall not apply to (x) any transaction between Wholly Owned Subsidi-
aries of the Company, or between the Company and any Wholly Owned Subsidiary
of the Company if such transaction is not otherwise prohibited by the terms of
this Indenture and (y) any Restricted Payment made in accordance with Section
4.06.
Notwithstanding the foregoing, the term "Affiliate Transaction" shall not
include any contract, agreement or understanding with or for the benefit of,
or a plan for the benefit of, any or all employees of the Company or its Sub-
sidiaries (in their capacity as such) that has been approved by the Company's
Board of Directors, a disinterested committee thereof, or a stock issuance to
directors pursuant to plans approved by stockholders of the Company.
section 4.09 Limitation on Subsidiary Indebtedness and Preferred Stock.
The Company shall not permit any Subsidiary to, directly or indirectly, in-
cur any Indebtedness or issue any Preferred Stock other than, without duplica-
tion: (a) Indebtedness or Preferred Stock issued to and held by the Company or
a Wholly Owned Subsidiary of the Company, provided that (i) such Indebtedness
is not subordinated to any other Indebtedness of such Subsidiary, and (ii) any
subsequent issuance or transfer of Capital Stock of a Wholly Owned Subsidiary
of the Company (the "Obligee Subsidiary") to whom a Subsidiary of the Company
is indebted (the "Obligor Subsidiary") that results in such Obligee Subsidiary
ceasing to be a Wholly Owned Subsidiary of the Company or any subsequent
transfer such Indebtedness or Preferred Stock of such Obligor Subsidiary by
such Obligee Subsidiary (other than to the Company or another Wholly Owned
Subsidiary of the Company) shall be deemed in each case to be the incurrence
of such Indebtedness or the issuance of such Preferred Stock by each Obligor
Subsidiary owing to or issued to, as the case may be, such Obligee Subsidiary
to the extent outstanding as of such date; (b) Indebtedness or Preferred Stock
of a Subsidiary of the Company which represents the assumption by such Subsid-
iary of Indebtedness or Preferred Stock of
42
another Subsidiary of the Company in connection with a merger of such Subsidi-
aries; (c) Indebtedness or Preferred Stock of any Person (other than a Person
that has acquired, directly or indirectly, assets from the Company other than
in the ordinary course of business) existing at the time such Person becomes a
Subsidiary of the Company, provided that (i) such Indebtedness or Preferred
Stock was not incurred or issued as a result of or in connection with or in
anticipation of such Person becoming a Subsidiary of the Company, (ii) immedi-
ately after giving effect to such Person becoming a Subsidiary of the Company
(as if such Indebtedness and Preferred Stock were incurred and issued on the
first day of the Reference Period) the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under clause (a) of Section
4.05 (assuming a market rate of interest with respect thereto), and (iii) the
total of the aggregate principal amount of Indebtedness and the aggregate liq-
uidation value of Preferred Stock of such Person outstanding on the date it
becomes a Subsidiary of the Company, plus the total of the aggregate principal
amount of Indebtedness and the aggregate liquidation value of Preferred Stock
of such other Persons incurred under this clause (c) (but only to the extent
such debt or Preferred Stock remains outstanding on the date of determina-
tion), does not exceed 10% of the Consolidated Net Worth of the Company; (d)
Indebtedness and Preferred Stock of any Subsidiary of the Company, provided
that (i) immediately after giving effect thereto (as if the incurrence or is-
suance thereof occurred on the first day of the Reference Period) the Company
could incur $1.00 of additional Indebtedness (other than Permitted Indebted-
ness) under clause (a) of Section 4.05 (assuming a market rate of interest
with respect thereto), and (ii) the total of the aggregate principal amount of
the Indebtedness and the aggregate liquidation value of Preferred Stock pro-
posed to be issued and incurred by such Subsidiary plus the total of the ag-
gregate principal amount of Indebtedness and the aggregate liquidation value
of Preferred Stock incurred and issued by all Subsidiaries of the Company un-
der this clause (d) does not exceed, when added to Indebtedness of the Company
incurred under clause (f) of the definition of "Permitted Indebtedness," 10%
of Consolidated Net Worth; (e) Permitted Indebtedness incurred by any Subsidi-
ary of the Company under clauses (a) and (g) of the definition of "Permitted
Indebtedness"; (f) Indebtedness or Preferred Stock that is Permitted Refinanc-
ing Indebtedness incurred or issued to Refinance any Indebtedness or Preferred
Stock incurred or issued by a Subsidiary of the Company prior to the Issue
Date or in accordance with this Indenture; or (g) Indebtedness of the
Company's non-U.S. Subsidiaries under any working cap-
43
ital or other revolving credit facility in an aggregate amount not to exceed
$5 million at any one time.
Section 4.10 Limitation on Sale of Assets.
The Company will not, and will not permit any of its Subsidiaries to, consum-
mate any Asset Sale unless such Asset Sale is for at least Fair Market Value
and at least 80% of the consideration therefrom received by the Company or
such Subsidiary is in the form of cash or Cash Equivalents.
Following any Asset Sale, an amount equal to the Net Cash Proceeds of such
Asset Sale shall be applied by the Company or such Subsidiary within 365 days
of the date of the Asset Sale, at its election, to either: (a) the payment of
Pari Passu Indebtedness with an equal and concurrent reduction in the commit-
ment related to such Pari Passu Indebtedness, if applicable, provided any Net
Cash Proceeds which are applied on such pro rata basis to reduce Indebtedness
under the Revolving Credit Agreement shall result in a permanent reduction of
the borrowing availability thereunder; (b) make any Permitted Program Invest-
ment or any other investment in capital assets usable in the Company's or its
Subsidiaries' lines of business or in an asset or business in the same line of
business as the Company; or (c) a combination of payment and investment per-
mitted by the foregoing clauses (a) and (b). On the earlier of (A) the 366th
day after the date of an Asset Sale or (B) such date as the Board of Directors
of the Company or of such Subsidiary determines (as evidenced by a written
resolution of said Board of Directors) not to apply an amount equal to the Net
Cash Proceeds relating to such Asset Sale as set forth in the immediately pre-
ceding sentence (each of (A) and (B), an "Asset Sale Offer Trigger Date"), the
Company or such Subsidiary shall be obligated to apply an amount equal to ag-
gregate amount of Net Cash Proceeds which have not been applied on or before
such Asset Sale Offer Trigger Date as permitted by the foregoing clauses (a),
(b) and (c) of the immediately preceding sentence (each an "Asset Sale Offer
Amount") to make an offer to purchase for cash (the "Asset Sale Offer") from
all holders of Senior Notes on a pro rata basis that amount of Senior Notes
equal to the Asset Sale Offer Amount at a price equal to 100% of the principal
amount of the Senior Notes to be repurchased, plus accrued and unpaid interest
thereon to the date of repurchase. Notwithstanding the foregoing, if an Asset
Sale Offer Amount is less than $10 million, the application of such Asset Sale
Offer Amount to an Asset Sale Offer may be deferred until such time as such
Asset Sale Offer Amount plus the aggregate amount of all Asset Sale Offer
Amounts arising subsequent to such Asset Sale
44
Offer Trigger Date from all Asset Sales by the Company and its Subsidiaries
aggregates at least $10 million, at which time the Company or such Subsidiary
shall apply all Asset Sale Offer Amounts that have been so deferred to make an
Asset Sale Offer (the first date the aggregate of all such deferred Asset Sale
Offer Amounts is equal to $10 million or more shall be deemed to be an "Asset
Sale Offer Trigger Date").
In the event of the transfer of substantially all (but not all) of the prop-
erty and assets of the Company as an entirety to a Person in a transaction
permitted under Section 5.01, the successor corporation shall be deemed to
have sold the properties and assets of the Company not so transferred for pur-
poses of this covenant, and shall comply with the provisions of this covenant
with respect to such deemed sale as if it were an Asset Sale.
Each Asset Sale Offer shall be mailed to the holders of the Senior Notes at
the addresses shown on the register of holders maintained by the Registrar
with a copy to the Trustee and the Paying Agent, within 10 days following the
applicable Asset Sale Offer Trigger Date, and shall comply with each of the
procedures for notice set forth below. Each Asset Sale Offer shall remain open
until a specified date (the "Asset Sale Offer Termination Date") which is at
least 20 Business Days from the date such Asset Sale Offer is mailed. During
the period specified in the Asset Sale Offer, holders of Senior Notes may
elect to tender their Senior Notes in whole or in part in integral multiples
of $1,000 in exchange for cash. Payment shall be made by the Company (or ap-
plicable Subsidiary) in respect of Senior Notes properly tendered pursuant to
this Section on a specified Business Day (the "Asset Sale Offer Payment Date")
which shall be no earlier than three Business Days after the Asset Sale Offer
Termination Date and no later then 60 days after such applicable Asset Sale
Offer Trigger Date. To the extent holders of Senior Notes properly tender Se-
nior Notes in an amount exceeding the Asset Sale Offer Amount, Senior Notes of
tendering holders will be repurchased on a pro rata basis (based on amounts
tendered).
The notice, which shall govern the terms of the Asset Sale Offer, shall in-
clude such disclosures as are required by law and shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
4.10;
(b) the purchase price (including the amount of the accrued interest, if
any) for each Senior Note, the Asset Sale Offer Termination Date and the
Asset Sale Offer Payment Date;
45
(c) that any Senior Note not tendered or accepted for payment will con-
tinue to accrue interest in accordance with the terms thereof;
(d) that, unless the Company defaults on making the payment, any Senior
Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Asset Sale Offer Payment Date;
(e) that holders electing to have Senior Notes purchased pursuant to an
Asset Sale Offer will be required to surrender their Senior Notes to the
Paying Agent at the address specified in the notice prior to 5:00 p.m.,
New York City time, on the Asset Sale Offer Termination Date and must com-
plete any form letter of transmittal proposed by the Company and accept-
able to the Trustee and the Paying Agent;
(f) that holders of Senior 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 Asset Sale Offer Termination Date, a tested telex, fac-
simile transmission or letter setting forth the name of the holder, the
principal amount of Senior Notes the holder delivered for purchase, the
Senior Note certificate number (if any) and a statement that such holder
is withdrawing his election to have such Senior Notes purchased;
(g) that if Senior Notes in a principal amount in excess of the Asset
Sale Offer Amount are tendered pursuant to the Asset Sale Offer, the Com-
pany shall purchase Senior Notes on a pro rata basis among the Senior
Notes tendered (with such adjustments as may be deemed appropriate by the
Company so that only Senior Notes in denominations of $1,000 or integral
multiples of $1,000 shall be acquired);
(h) that holders whose Senior Notes are purchased only in part will be
issued new Senior Notes equal in principal amount to the unpurchased por-
tion of the Senior Notes surrendered; and
(i) the instructions that holders must follow in order to tender their
Senior Notes.
On the Asset Sale Offer Termination Date, the Company shall (i) accept for
payment Senior Notes or portions thereof tendered pursuant to the Asset Sale
Offer, (ii) deposit with the Paying Agent money sufficient to pay the purchase
price of all Senior Notes or portions thereof so tendered and accepted and
(iii) deliver to the Trustee the Senior Notes so accepted together with an Of-
ficers' Certificate setting forth the Senior Notes or portions thereof ten-
dered to and accepted for payment by the Company. On the Asset Sale Offer Pay-
ment Date, the Paying Agent shall mail or deliver to the holders of Senior
Notes so accepted payment in an amount equal to the purchase price, and the
Trustee
46
shall promptly authenticate and mail or deliver to such holders a new Senior
Note equal in principal amount to any unpurchased portion of the Senior Note
surrendered. Any Senior Notes not so accepted shall be promptly mailed or de-
livered by the Company to the holder thereof.
If an offer is made to repurchase the Senior Notes pursuant to an Asset Sale
Offer, the Company will and will cause its Subsidiaries to comply with all
tender offer rules under state and Federal securities laws, including, but not
limited to, Section 14(e) under the Exchange Act and Rule 14e-1 thereunder, to
the extent applicable to such offer. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 4.10,
the Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Section
4.10 by virtue thereof.
Section 4.11 Limitation on Liens.
The Company may not, and may not permit any of its Subsidiaries to, volun-
tarily or involuntarily, create, incur or assume any Liens upon any of their
respective properties or assets whether owned on the Issue Date or acquired
thereafter, or on any income or profits therefrom, or assign or otherwise con-
vey any right to receive income or profits thereon, securing any Indebtedness
of the Company or of any of its Subsidiaries other than, without duplication
(a) Liens granted by the Company securing Indebtedness of the Company that is
incurred in accordance with this Indenture and that is Pari Passu Indebted-
ness, provided that the Senior Notes are secured on an equal and ratable basis
to such Liens, (b) Liens granted by the Company securing Indebtedness of the
Company incurred in accordance with this Indenture and that is subordinated to
the Senior Notes, provided that the Senior Notes are secured by Liens ranking
prior to such Liens, (c) Liens existing on the Issue Date to the extent and in
the manner such Liens are in effect on the Issue Date, (d) Permitted Liens,
(e) Liens relating to other Indebtedness and Sale-Leaseback Financings in an
aggregate amount not to exceed at any one time 10% of the Company's Consoli-
dated Net Worth, (f) Liens in respect of Acquired Indebtedness incurred by the
Company in accordance with Section 4.05 and in respect of Acquired Indebted-
ness incurred by a Subsidiary of the Company in accordance with clause (d) of
Section 4.09, provided that the Lien in respect of such Acquired Indebtedness
secured such Acquired Indebtedness at the time of the incurrence of such Ac-
quired Indebtedness by the Company or by
47
one of its Subsidiaries and such Lien and the Acquired Indebtedness were not
incurred by the Company or any of its Subsidiaries or by the Person being ac-
quired or from whom the assets are proposed to be acquired in connection with,
or in anticipation of, the incurrence of such Acquired Indebtedness by the
Company or by one of its Subsidiaries and, provided further, that such Liens
do not extend to or cover any property or assets of the Company or of any of
its Subsidiaries other than the property or assets that secured the Acquired
Indebtedness prior to the time such Indebtedness became Acquired Indebtedness
of the Company or of one of its Subsidiaries, (g) Liens granted by a corpora-
tion, which Liens are in existence at the time such corporation becomes a Sub-
sidiary of the Company, provided that such Liens were not created by such cor-
poration in connection with or in anticipation of such corporation becoming a
Subsidiary of the Company, and provided further that such Liens do not extend
to or cover any property or assets of the Company or any of its Subsidiaries
other than the property or assets of such acquired corporation prior to the
time it became a Subsidiary of the Company and (h) Liens in respect of New In-
debtedness that is Permitted Refinancing Indebtedness incurred to Refinance
any of the Indebtedness set forth in clauses (a), (b), (c), (e), (f) and (g)
above, provided that such Liens in respect of such New Indebtedness are no
less favorable to the holders of Senior Notes than the Liens in respect of the
Indebtedness being Refinanced and such Liens in respect of New Indebtedness do
not extend to or cover any properties or assets of the Company or of any of
the Company's Subsidiaries other than the property or assets that secured the
Indebtedness being Refinanced.
Section 4.12 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 exist-
ence.
Section 4.13 Taxes.
The Company shall pay prior to delinquency all taxes, assessments and gov-
ernmental levies, except as contested in good faith and by appropriate pro-
ceedings or where the failure to do so (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries, taken as a whole.
48
Section 4.14 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the Company's
obligation to pay the Senior 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 Senior 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 execu-
tion of every such power as though no such law has been enacted.
Section 4.15 Investment Company Act.
The Company, as of the Issue Date, is not and shall not become an investment
company subject to registration under the Investment Company Act of 1940, as
amended.
Section 4.16 Change of Control.
Following a Change of Control (the date of each such occurrence being the
"Change of Control Date"), the Company shall notify the holders of Senior
Notes in writing of such occurrence and shall make an offer (the "Change of
Control Offer") to purchase all Senior Notes then outstanding at a purchase
price equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the "Change of Control Offer Payment Date" (as defined
below).
Notice of a Change of Control shall be mailed by or at the direction of the
Company to the holders of Senior Notes as shown on the register of such hold-
ers maintained by the Registrar not less than 15 days nor more than 30 days
after the applicable Change of Control Date at the addresses as shown on the
register of holders maintained by the Registrar, with a copy to the Trustee
and the Paying Agent. The Change of Control Offer shall remain open until a
specified date (the "Change of Control Offer Termination Date") which is at
least 20 Business Days from the date such notice is mailed. During the period
specified in such notice, holders of Senior Notes may elect to tender their
Senior 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 Senior
49
Notes properly tendered pursuant to this Section on a specified Business Day
(the "Change of Control Offer Payment Date") which shall be no earlier than 3
Business Days after the applicable Change of Control Offer Termination Date
and no later than 60 days after the applicable Change of Control Date.
The notice, which shall govern the terms of the Change of Control Offer,
shall include such disclosures as are required by law and shall state:
(a) that a Change of Control Offer is being made pursuant to this Sec-
tion 4.16 and that all Senior Notes will be accepted for payment;
(b) the purchase price (including the amount of accrued interest, if
any) for each Senior Note, the Change of Control Offer Termination Date
and the Change of Control Offer Payment Date;
(c) that any Senior Note not accepted for payment will continue to ac-
crue interest in accordance with the terms thereof;
(d) that, unless the Company defaults on making the payment, any Senior
Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Offer Payment Date;
(e) that holders electing to have Senior Notes purchased pursuant to a
Change of Control Offer will be required to surrender their Senior Notes
to the Paying Agent at the address specified in the notice prior to 5:00
p.m., New York City time, on the Change of Control Offer Termination Date
and must complete any form letter of transmittal proposed by the Company
and acceptable to the Trustee and the Paying Agent;
(f) that holders of Senior 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 Change of Control Offer Termination Date, a tested tel-
ex, facsimile transmission or letter setting forth the name of the holder,
the principal amount of Senior Notes the holder delivered for purchase,
the Senior Note certificate number (if any) and a statement that such
holder is withdrawing his election to have such Senior Notes purchased;
(g) that holders whose Senior Notes are purchased only in part will be
issued Senior Notes equal in principal amount to the unpurchased portion
of the Senior Notes surrendered;
(h) the instructions that holders must follow in order to tender their
Senior Notes; and
(i) the circumstances and relevant facts regarding such Change of Con-
trol (including, but not limited to, information with respect to pro
50
forma historical financial information after giving effect to such Change
of Control, information regarding the Persons acquiring control and such
Persons' business plans going forward).
On the Change of Control Offer Payment Date, the Company shall (i) accept
for payment Senior Notes or portions thereof tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent money sufficient to pay
the purchase price of all Senior Notes or portions thereof so tendered and ac-
cepted and (iii) deliver to the Trustee the Senior Notes so accepted together
with an Officers' Certificate setting forth the Senior Notes or portions
thereof tendered to and accepted for payment by the Company. On the Change of
Control Offer Payment Date, the Paying Agent shall mail or deliver to the
holders of Senior Notes so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
holders a new Senior Note equal in principal amount to any unpurchased portion
of the Senior Note surrendered. Any Senior Notes not so accepted shall be
promptly mailed or delivered by the Company to the holder thereof.
In addition, in the event of any Change of Control, the Company shall not,
and shall not permit any of its Subsidiaries to, purchase, redeem or otherwise
acquire any Indebtedness subordinated or junior to the Senior Notes pursuant
to any analogous provision relating to such Indebtedness on or prior to the
payment in full in cash or Cash Equivalents of all Senior Notes, together with
accrued and unpaid interest thereon with respect to which the Change of Con-
trol Offer was accepted.
If an offer is made to redeem Senior Notes as a result of a Change of Con-
trol, the Company will be required to comply with all tender offer rules under
state and Federal securities laws, including, but not limited to, Section
14(e) under the Exchange Act and Rule 14e-1 thereunder, to the extent applica-
ble to such offer.
Section 4.17 Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any of its Subsidiaries to, enter
into any sale and leaseback transaction, provided that the Company (and not a
Subsidiary of the Company) may enter into such a sale and leaseback transac-
tion if (a) with respect to any such transaction involving the incurrence of
Capitalized Lease Obligations, the Company could have (i) incurred Indebted-
ness in an amount equal to the debt relating to such sale and leaseback
51
transaction pursuant to the Consolidated Fixed Charge Coverage Ratio test set
forth in Section 4.05 and (ii) incurred a Lien to secure such Indebtedness
pursuant to Section 4.11, (b) the proceeds of such sale and leaseback transac-
tion are at least equal to the Fair Market Value of the property that is sub-
ject of such sale and leaseback transaction and (c) the Company shall apply or
cause to be applied the proceeds of such transaction in compliance with Sec-
tion 4.10.
Section 4.18 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 7.08, a Trustee, so
that there shall at all times be a Trustee hereunder.
Section 4.19 Further Instruments and Acts.
Upon request of the Trustee, the Company will execute and deliver such fur-
ther instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
ARTICLE 5
Successors
Section 5.01 When the Company May Merge, Etc.
The Company will not, in a single transaction or series of related transac-
tions, consolidate or merge with or into, or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its assets to, any
Person or adopt a Plan of Liquidation unless:
(a) either (i) the Company shall be the surviving or continuing corpora-
tion or (ii) the Person (if other than the Company) formed by such consol-
idation or into which the Company is merged or the Person which acquires
by conveyance, transfer or lease the properties and assets of the Company
substantially as an entirety or in the case of a Plan of Liquidation, the
Person to which all or substantially all of the assets of the Company have
been transferred (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, ex-
ecuted and delivered to the Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest on all of
52
the Senior Notes and the performance of every covenant of the Senior Notes
and this Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction and any assump-
tion contemplated by clause (2) above (including giving effect to any In-
debtedness and Acquired Indebtedness incurred or anticipated to be in-
curred in connection with or in respect of such transaction), the Company
(in the case of clause (i) of the foregoing clause (a)) or such Person (in
the case of clause (ii) thereof) (i) shall have a Consolidated Net Worth
(immediately after the transaction but prior to any purchase accounting
adjustments relating to such transaction) equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such transac-
tion and (ii) shall be able to incur (assuming a market rate of interest
with respect thereto) at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) under Section 4.05, provided that in deter-
mining the "Consolidated Fixed Charge Coverage Ratio" of the resulting,
transferee or surviving Person, such ratio shall be calculated as if the
transaction (including the incurrence of any Indebtedness or Acquired In-
debtedness) occurred on the first day of the Reference Period;
(c) immediately before and after giving effect to such transaction and
the assumption contemplated by clause (a)(ii)(2) above (including giving
effect to any Indebtedness and Acquired Indebtedness incurred in connec-
tion with or in respect of the transaction) no Default or Event of Default
shall have occurred and be continuing;
(d) the Company or such Person shall have delivered to the Trustee (i)
an Officers' Certificate and an Opinion of Counsel (which may be in-house
counsel of the Company), each stating that such consolidation, merger,
sale, assignment, conveyance, transfer or lease or Plan of Liquidation
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with the provisions of
this Indenture and that all conditions precedent in this Indenture relat-
ing to such transaction have been satisfied and (ii) a certification from
the Company's independent certified public accountants stating that the
Company has made the calculations required by clause (b) above in accor-
dance with the terms of this Indenture; and
(e) neither the Company nor any Subsidiary of the Company nor such Per-
son, as the case may be, would thereupon become obligated with respect to
any Indebtedness (including Acquired Indebtedness), nor any of its prop-
erty or assets subject to any Lien, unless the Company or such Subsidiary
or such Person, as the case may be, could incur such Indebtedness (includ-
ing Acquired Indebtedness) or create such Lien under this
53
Indenture (giving effect to such Person being bound by all the terms of
this Indenture).
For purposes of Section 5.01, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or sub-
stantially all of the properties or assets of one or more Subsidiaries of the
Company, the Capital Stock of which constitutes all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Company.
section 5.02 Successor Corporation Substituted.
Upon any such consolidation, merger, sale, assignment, conveyance, lease or
transfer in accordance with Section 5.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
lease or transfer is made will succeed to, and be substituted for, and may ex-
ercise every right and power of, the Company 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, convey-
ance or other disposition) the predecessor corporation will be relieved of all
further obligations and covenants under this Indenture and the Senior Notes.
section 5.03 Purchase Option on Change of Control.
This Article 5 does not affect the obligations of the Company (including
without limitation any successor to the Company) under Section 4.16.
ARTICLE 6
Defaults and Remedies
section 6.01 Events of Default.
An "Event of Default" with respect to any Senior Notes occurs if:
(a) the Company defaults in the payment of principal of, or premium, if
any, on the Senior Notes when due at maturity, upon repurchase, upon ac-
celeration or otherwise, including, without limitation, failure of the
Company to repurchase the Senior Notes on the date required pursuant to
Section 4.10 or 4.16 or failure to make any optional redemption payment
when due; or
54
(b) the Company defaults in the payment of any installment of interest
on the Senior Notes when due (including any interest payable in connection
with any optional redemption payment) and continuance of such default for
more than 30 days; or
(c) The Company fails to observe, perform or comply with any of the pro-
visions described under Sections 4.05, 4.06, 4.09, 4.10, 4.16 and 5.01 and
the failure to remedy such failure prior to the receipt of written notice
from the Trustee by the holders of at least 25% in aggregate principal
amount of the outstanding Senior Notes; or
(d) the Company defaults (other than a default set forth in Section
6.01, clauses (a), (b) and (c) above) in the performance of, or breach of,
any other covenant or warranty of the Company in this Indenture or the Se-
nior 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 hold-
ers of at least 25% in aggregate principal amount of the then outstanding
Senior Notes; or
(e) the Company fails to pay at maturity or a default in the obligation
to pay when due the principal of, interest on (but only to the extent any
such failure to pay interest is not fully cured prior to the expiration of
the grace period provided in such Indebtedness on the date such interest
payment was initially due), or any other payment obligation on any other
Indebtedness (other than the Senior Notes) of the Company or of any Sub-
sidiary of the Company, whether such Indebtedness exists on the Issue Date
or shall be incurred thereafter, having, individually or in the aggregate,
an outstanding principal amount of $15,000,000 or more or (ii) any other
Indebtedness (other than the Senior Notes) of the Company or of any Sub-
sidiary of the Company, whether such Indebtedness exists on the Issue Date
or shall be incurred thereafter, having, individually or in the aggregate,
an outstanding principal amount of $15,000,000 or more, is declared due
and payable prior to its stated maturity; or
(f) a court of competent jurisdiction enters one or more judgments or
orders against the Company or any Subsidiary of the Company or any of
their respective property or assets in an aggregate amount in excess of
$15,000,000 and that are not covered by insurance written by third par-
ties, which judgments or orders have not been vacated, discharged, satis-
fied or stayed pending appeal within 60 days from the entry thereof; or
(g) the Company or any Material Subsidiary, pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
55
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors; or
(h) a court of competent jurisdiction enters a judgment, order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Material Subsidiary in
an involuntary case,
(B) appoints a Custodian of the Company or any Material Subsidiary
for all or substantially all of its property, or
(C) orders the liquidation of the Company or any Material Subsidi-
ary, and the order or decree remains unstayed and in effect for 60
days.
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 receiv-
er, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
Section 6.02 Acceleration.
If an Event of Default (other than an Event of Default specified in clauses
(g) and (h) of Section 6.01) 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 Senior Notes, by
written notice to the Company and the Trustee, may declare the unpaid princi-
pal of and accrued interest on all the Senior Notes to be due and payable.
Upon such declaration such principal amount, premium, if any, and accrued and
unpaid interest shall be immediately due and payable notwithstanding anything
contained in this Indenture or the Senior Notes to the contrary. If an Event
of Default with respect to the Company specified in clauses (g) or (h) of Sec-
tion 6.01 occurs, all unpaid principal of, and premium, if any, and accrued
and unpaid interest or, Senior Notes then outstanding shall automatically be-
come and be immediately due and payable without any declaration or other act
on the part of the Trustee or any holder of Senior Notes.
The holders of a majority in principal amount of the then outstanding Senior
Notes by notice to the Trustee may rescind an acceleration and its conse-
quences if all existing Events of Default, other than the nonpayment of prin-
cipal and premium, if any, and interest on the Senior Notes which has
56
become due solely by virtue of such acceleration have been cured or waived 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 De-
fault or impair any right consequent thereto.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Senior Notes or to enforce the performance of
any provision of the Senior Notes or this Indenture. The Trustee may maintain
a proceeding even if it does not possess any of the Senior Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or
any holder of a Senior Note in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.
Section 6.04 Waiver of Past Defaults.
The holders of a majority in aggregate principal amount of the Senior Notes
then outstanding may, on behalf of the holders of all the Senior Notes, waive
an existing Default or Event of Default and its consequences, except Default
or Event of Default in the payment of the principal of or interest on the Se-
nior Notes (other than nonpayment of principal of and premium, if any, or in-
terest on the Senior Notes which has become due solely by virtue of an accel-
eration 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 Senior Notes. When a Default is waived,
it is cured and stops continuing. No waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
The holders of a majority in principal amount of the then outstanding Senior
Notes may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on it. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that the Trustee determines may be unduly prejudi-
cial to the rights of other holders of Senior Notes or that may
57
involve the Trustee in personal liability; provided that the Trustee may take
any other action the Trustee deems proper that is not inconsistent with such
directions.
Section 6.06 Limitation on Suits.
A holder of a Senior Note may not pursue any remedy with respect to this In-
denture or the Senior Notes unless:
(a) the holder gives to the Trustee notice of a continuing Event of De-
fault;
(b) the holders of at least 25% in principal amount of the then out-
standing Senior Notes make a request to the Trustee to pursue the remedy;
(c) such holder or holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the holders of a majority in principal
amount of the then outstanding Senior Notes do not give the Trustee a di-
rection inconsistent with the request.
A holder of a Senior Note may not use this Indenture to prejudice the rights
of another holder or to obtain a preference or priority over another holder.
Section 6.07 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
holder of a Senior Note to receive payment of principal and interest on the
Senior Note, on or after the respective due dates expressed in the Senior
Note, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent
of the holder of a Senior Note.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee
58
of an express trust against the Company for the whole amount of principal and
interest remaining unpaid on the Senior Notes and interest on overdue princi-
pal and interest and such further amount as shall be sufficient to cover the
costs and, to the extent lawful, expenses of collection, including the reason-
able compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and
the holders of Senior Notes allowed in any judicial proceedings relative to
the Company, its creditors or its property. 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 a Senior Note any plan of reorganization, arrange-
ment, adjustment or composition affecting the Senior Notes or the rights of
any holder thereof, or to authorize the Trustee to vote in respect of the
claim of any holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay out
the money in the following order:
First: to the Trustee for amounts due under Section 7.07, 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 Senior Notes for amounts due and unpaid on the Senior
Notes for principal and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Senior Notes for
principal and interest, respectively; and
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 Senior 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 liti-
gant
59
in the suit of an undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including reasonable attorneys
fees, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This Sec-
tion does not apply to a suit by the Trustee, a suit by a holder pursuant to
Section 6.07 or a suit by holders of more than 10% in principal amount of the
then outstanding Senior 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.
Section 7.01 Duties of the Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her own af-
fairs.
(b) Except during the continuance of an Event of Default:
(i) The duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those du-
ties that are specifically set forth in this Indenture and no others and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) In the absence of bad faith on its part, the Trustee may conclu-
sively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent ac-
tion, its own negligent failure to act or its own willful misconduct, except
that:
(i) This paragraph does not limit the effect of paragraph (b) of this
Section;
60
(ii) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction re-
ceived by it pursuant to Section 6.05.
(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) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse to perform
any duty or exercise any right or power unless it receives indemnity satisfac-
tory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by law.
section 7.02 Rights of the Trustee.
(a) The Trustee may rely on any document believed by it to be genuine and to
have been signed or presented by the proper person. The Trustee need not in-
vestigate any fact or matter stated in such a document.
(b) Before the Trustee acts or refrains from acting, it may require an Offi-
cers' Certificate, an Opinion of Counsel or both. The Trustee shall not be li-
able for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written 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 re-
liance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any attorney or agent ap-
pointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take
in good faith which it believes to be authorized or within its rights or pow-
ers.
61
(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.
section 7.03 Individual Rights of the Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Senior Notes and may otherwise deal with the Company or an Affili-
ate with the same rights it would have if it were not Trustee. Any Agent may
do the same with like rights. However, the Trustee is subject to Sections 7.10
and 7.11.
section 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Senior Notes, it shall not
be accountable for the Company's use of the proceeds from the Senior Notes or
any money paid to the Company or upon the Company's direction under any provi-
sion 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
Senior Notes or any other document in connection with the sale of the Senior
Notes or pursuant to this Indenture other than its certificate of authentica-
tion.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known
to the Trustee, the Trustee shall mail to each holder of a Senior Note a no-
tice of the Default or Event of Default within 60 days after it occurs. A De-
fault or an Event of Default shall not be considered known to the Trustee un-
less it is a Default or Event of Default in the payment of principal or inter-
est when due under Section 6.01(a) or (b) or the Trustee shall have received
notice thereof, in accordance with this Indenture, from the Company or from
the holders of a majority in principal amount of the outstanding Senior Notes.
Except in the case of a Default or Event of Default in payment of principal or
interest on any Senior Note, the Trustee may withhold the notice if and so
62
long as a committee of its Trust Officers in good faith determines that with-
holding the notice is in the interest of the holders of Senior Notes.
Section 7.06 Reports by the Trustee to Holders.
Within 60 days after the reporting date stated in Section 10.10, the Trustee
shall mail to holders of Senior Notes a brief report dated as of such report-
ing date that complies with TIA () 313(a) (but if no event described in TIA ()
313(a) has occurred within twelve months preceding the reporting date, no re-
port need be transmitted). The Trustee also shall comply with TIA ()
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA () 313(c).
A copy of each report at the time of its mailing to holders of Senior Notes
shall be filed with the Commission and each stock exchange, if any, on which
the Senior Notes are listed. The Company shall notify the Trustee when the Se-
nior Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable compensa-
tion for its acceptance 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 it in addition to the compensation for its services. Such expenses
may include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss, liability or ex-
pense incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, except as set forth in the
next paragraph. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim with counsel designated by the Company, who may be outside
counsel to the Company but shall in all events be reasonably satisfactory to
the Trustee, and the Trustee shall cooperate in the defense. In addition, the
Trustee may retain one separate counsel and, if deemed advisable by such coun-
sel, local counsel, and the Company shall pay the reasonable fees and
63
expenses of such separate counsel and local counsel. The indemnification
herein extends to any settlement, provided that the Company will not be liable
for any settlement made without its consent, provided, further, that such con-
sent will not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through its own negligence or bad faith.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Senior Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal
and interest on Senior Notes. Such Liens shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of De-
fault specified in Section 6.01(g) or (h) occurs, the expenses and the compen-
sation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any Bank-
ruptcy Law.
Section 7.08 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.
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 Senior Notes may remove the Trustee by so noti-
fying the Trustee and the Company. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
64
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 Trust-
ee. Within one year after the successor Trustee takes office, the holders of a
majority in principal amount of the then outstanding Senior 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 retir-
ing Trustee resigns or is removed, the retiring Trustee, the Company or the
holders of at least 10% in principal amount of the then outstanding Senior
Notes may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
If the Trustee after written request by any holder of a Senior 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 Inden-
ture. The successor Trustee shall mail a notice of its succession to holders
of Senior 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 pro-
vided for in Section 7.07. Notwithstanding the replacement of the Trustee pur-
suant to this Section 7.08, the Company's obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation
or national banking association, the resulting, surviving or transferee corpo-
ration or national banking association without any further act shall be the
successor Trustee.
65
Section 7.10 Eligibility, Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements of
TIA () 310(a)(1). The Trustee shall always have a combined capital and surplus
as stated in Section 10.10. The Trustee is subject to TIA () 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 () 311(a), excluding any creditor rela-
tionship set forth in TIA () 311(b). A Trustee who has resigned or been re-
moved shall be subject to TIA () 311(a) to the extent indicated therein.
ARTICLE 8
Satisfaction and Discharge of Indenture
Section 8.01 Termination of Company's Obligations.
(i) This Indenture shall cease to be of further effect (except that the
Company's obligations under Section 7.07 and 8.03 shall survive) when all out-
standing Senior Notes theretofore authenticated and issued have been delivered
(other than destroyed, lost or stolen Senior Notes that have been replaced or
paid) to the Trustee for cancellation and the Company has paid all sums pay-
able hereunder. In addition, the Company may terminate its obligations under
this Indenture (except the Company's obligations under Sections 7.07 and 8.03)
if, under terms satisfactory to the Trustee: (a) the Senior Notes have either
become due and payable or are by their terms due and payable within one year
(or scheduled for redemption within one year); and (b) the Company irrevocably
deposits in trust with the Trustee money or United States Government Obliga-
tions (defined below in this Section 8.01), or a combination thereof, suffi-
cient, without consideration of the reinvestment of interest in the opinion of
the chief financial officer of the Company expressed in a written certificate
delivered to the Trustee, to pay principal and interest on the Senior Notes to
maturity or upon redemption, as the case may be. The Company may make the de-
posit only during the one year period.
However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
4.01, 4.04, 7.07, 7.08, 8.03 and 8.04 shall survive until the Senior Notes are
no longer outstanding. Thereafter, only the Company's obligations in Sections
7.07 and 8.03 shall survive.
66
After a deposit made pursuant to this Section 8.01, the Trustee upon request
of the Company shall acknowledge in writing the discharge of the Company's ob-
ligations under this Indenture except for those surviving obligations speci-
fied above.
In addition, the Company may elect to have either clause (ii) or clause
(iii) below be applied to the outstanding Senior Notes upon compliance with
the conditions set forth in clause (iv) below.
(ii) Upon the Company's exercise under the last sentence of paragraph (i)
above of the option applicable to this paragraph (ii), the Company shall be
deemed to have been released and discharged from its obligations with respect
to the outstanding Senior Notes on the date the conditions set forth below are
satisfied ("legal defeasance"). For this purpose, legal defeasance means that
the Company shall be deemed to have paid and discharged the entire Indebted-
ness represented by the outstanding Senior Notes, which shall thereafter be
deemed to be "outstanding" only for the purpose of the Sections of and matters
under this Indenture referred to in subclauses (A), (B), (C) and (D) of this
clause (ii), and to have satisfied all its other obligations under such Senior
Notes and this Indenture insofar as such Senior Notes are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments ac-
knowledging the same), except for the following, which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of holders of
outstanding Senior Notes to receive solely from the trust fund described in
clause (iv) below and as more fully set forth in such clause, payments in re-
spect of the principal of, and premium, if any, and interest on such Senior
Notes when such payments are due, (B) the Company's obligations with respect
to such Senior Notes when such payments are due, (C) the Company's obligations
with respect to such Senior Notes under Sections 2.03, 2.05, 2.06, 2.07 and
4.04, and, with respect to the Trustee, under Section 7.07, (D) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (E) this
Section 8.01 and Sections 8.03 and 8.04. Subject to compliance with this Sec-
tion 8.01, the Company may exercise its option under this clause (ii) notwith-
standing the prior exercise of its option under paragraph (iii) below with re-
spect to the Senior Notes.
(iii) Upon the Company's exercise under the last sentence of clause (i) of
the option applicable to this clause (iii), the Company shall be released and
discharged from its obligations under any covenant contained in Article 4 (ex-
cept for Sections 4.01 and 4.04) and Article 5 with respect to the outstand-
67
ing Senior Notes on and after the date the conditions set forth below are sat-
isfied ("covenant defeasance"), and the Senior Notes shall thereafter be
deemed to be not "outstanding" for the purpose of any direction, waiver, con-
sent or declaration or act of holders of Senior Notes (and the consequences of
any thereof) in connection with such covenants, but shall continue to be
deemed "outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to the outstanding Senior Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether di-
rectly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other pro-
vision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 but, except as
specified above, the remainder of this Indenture (including without limitation
obligations set forth in Sections 8.03 and 8.04 hereof) and such Senior Notes
shall be unaffected thereby.
(iv) The following shall be the conditions to the application of either
clause (ii) or (iii) above to the outstanding Senior Notes:
(a) the Company has irrevocably deposited in trust with the Trustee or,
at the option of the Trustee, with a trustee, satisfactory to the Trustee
and the Company, under terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, cash in United States dollars,
United States Government Obligations, or a combination thereof, suffi-
cient, without consideration of the reinvestment of interest, in the opin-
ion of the chief financial officer of the Company expressed in a written
certificate delivered to the Trustee, to pay at maturity principal and in-
terest on the Senior Notes; provided that (i) the trustee of the irrevoca-
ble trust shall have been irrevocably instructed to pay such money or the
proceeds of such United States Government Obligations to the Trustee and
(ii) the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such United States Government Obligations to the
payment of said principal and interest with respect to the Senior Notes;
(b) in the case of an election under clause (ii) above, the Company
shall have delivered to the Trustee an Opinion of Counsel from nationally
recognized counsel reasonably acceptable to the Trustee stating that (x)
the Company has received from, or there has been published by, the Inter-
nal Revenue Service a ruling or (y) since the date of this Indenture,
there has been a change in the applicable federal income tax law, in ei-
ther case to the effect that the holders of the outstanding Senior Notes
will not recognize income, gain or loss for federal income tax purposes as
a result
68
of such legal defeasance and will be subject to federal income tax on the
same amount and in the same manner and at the same time as would have been
the case if such legal defeasance had not occurred;
(c) in the case of an election under clause (iii) above, the Company
shall have delivered to the Trustee an Opinion of Counsel from nationally
recognized counsel reasonably acceptable to the Trustee (i) to the effect
that the holders of the outstanding Senior Notes will not recognize in-
come, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amount and in the same manner and at the same time as would have been the
case if such covenant defeasance had not occurred or (ii) that the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling to the foregoing effect.
(d) no Default or Event of Default shall have occurred and be continuing
on the date of such deposit;
(e) such legal defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default or Event of Default under
any material agreement or instrument to which the Company or any of its
subsidiaries is bound;
(f) The Company shall deliver to the Trustee an Opinion of Counsel to
the effect that after the 91st day following the deposit, the trust funds
will not be subject to the effect of any applicable bankruptcy, insolven-
cy, reorganization or similar laws affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers' Certif-
icate stating that the deposit was not made by the Company with the intent
of preferring the holders over the other creditors of the Company with the
intent of defeating, hindering, delaying or defrauding creditors of the
Company or others; and
(h) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent provided
for relating to the legal defeasance under clause (ii) above or the cove-
nant defeasance under clause (iii) above, as the case may be, have been
complied with.
After such irrevocable deposit made pursuant to this Section 8.01 (and sat-
isfaction of the other conditions set forth herein), the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
this Indenture except for those surviving obligations specified above.
As used herein, "United States Government Obligations" means obligations for
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
69
Section 8.02 Application of Trust Money.
The Trustee shall hold in trust money or United States Government Obliga-
tions deposited with it pursuant to Section 8.01. It shall apply the deposited
money and the money from United States Government Obligations through the Pay-
ing Agent and in accordance with this Indenture to the payment of principal
and interest on the Senior Notes.
Section 8.03 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon re-
quest any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that remains un-
claimed for two years after the date upon which such payment shall have become
due; provided, however, that the Company shall have first caused notice of
such payment to the Company to be mailed to each holder entitled thereto no
less than 30 days prior to such payment. After payment to the Company, holders
entitled to the money must look to the Company for payment as general credi-
tors unless an applicable abandoned property law designates another person and
all liability of the Trustee and such Paying Agent with respect to such money
shall cease.
Section 8.04 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money in accordance
with Section 8.02 by reason of any order or judgment of any court or govern-
mental authority enjoining, restraining or otherwise prohibiting such applica-
tion, the Company's obligations under this Indenture and the Senior Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.01 until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.02; provided, however, that
if the Company makes any payment of interest on or principal of any Senior
Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the holders of such Senior Notes to receive such
payment from the money held by the Trustee or Paying Agent.
70
ARTICLE 9
Amendments
Section 9.01 Without the Consent of Holders.
The Company and the Trustee may amend or modify this Indenture (including
the terms and conditions of the Senior Notes) without notice to or the consent
of any holder of Senior Notes for the purpose of:
(a) adding to the covenants of the Company for the benefit of the hold-
ers of Senior Notes;
(b) surrendering any right or power conferred upon the Company;
(c) evidencing the successor of another corporation to the Company and
the assumption of the Company thereunder and in the Senior Notes as per-
mitted herein;
(d) curing any ambiguity, or correcting or supplementing any defective
provision contained herein or making any changes in any other provisions
of this Indenture which the Company and the Trustee deem necessary or de-
sirable and which, in either case, will not adversely affect the interests
of the holders of Senior Notes.
Section 9.02 With the Consent of Holders.
Subject to Section 6.07, the Company and the Trustee may amend this Inden-
ture or the Senior Notes with the written consent of the holders of not less
than a majority in aggregate principal amount of the then outstanding Senior
Notes.
Subject to Sections 6.04 and 6.07, the holders of a majority in principal
amount of the Senior Notes then outstanding may also waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Senior Notes.
However, without the consent of each holder of a Senior Note affected, an
amendment or waiver under this Section may not:
(a) reduce the amount of Senior Notes whose holders must consent to an
amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of, interest, in-
cluding defaulted interest, on any Senior Note;
71
(c) reduce the principal of or premium on or change the fixed maturity
of any Senior Note or alter the redemption provisions with respect there-
to;
(d) make the principal of or premium, if any, or interest on, any Senior
Note payable in money other than as provided for in this Indenture and the
Senior Note;
(e) waive a continuing default in the payment of the principal of or
premium, if any, interest on, or redemption or repurchase payment with re-
spect to, any Senior Note, including, without limitation, a continuing de-
fault to make payment when required upon a Change of Control or after an
Asset Sale Offer Trigger Date;
(f) after the Company's obligation to purchase the Senior Notes arises
hereunder, to then amend, modify or change the obligation of the Company
to make or consummate a Change of Control Offer in the event of a Change
of Control or an Asset Sale Offer in the event of an Asset Sale Offer
Trigger Date or waive any default in the performance thereof or modify any
of the provisions or definitions with respect to any such offers; or
(g) make any change in provisions relating to waivers of defaults, the
abilities of holders of Senior Notes to enforce their rights hereunder or
the provisions of clauses (a) through (g) of this Section 9.02.
To secure a consent of the holders under this Section, it shall not be nec-
essary for such holders to approve the particular form of any proposed amend-
ment or waiver, but it shall be sufficient if such consent approves the sub-
stance thereof.
After an amendment or waiver under this Section becomes effective, the Com-
pany shall mail to holders of Senior Notes a notice briefly describing the
amendment or waiver.
Section 9.03 Compliance with the Trust Indenture Act.
Every amendment to this Indenture or the Senior Notes shall be set forth in
a supplemental indenture that complies with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a holder
of a Senior Note is a continuing consent by the holder and every subsequent
holder of a Senior Note or portion of a Senior Note that evidences
72
the same debt as the consenting holder's Senior Note, even if notation of the
consent is not made on any Senior Note. However, any such holder or subsequent
holder may revoke the consent as to his or her Senior Note or portion of a Se-
nior Note if the Trustee receives the notice of revocation before the date on
which the Trustee receives an Officers' Certificate certifying that the hold-
ers of the requisite principal amount of Senior Notes have consented to the
amendment or waiver.
The Company may, but shall not obligated to, fix a record date for the pur-
pose of determining the holders entitled to consent to any amendment or waiv-
er. If a record date is fixed, then notwithstanding the provisions of the im-
mediately preceding paragraph, those persons who were holders at such record
date (or their duly designated proxies), and only those persons, shall be en-
titled to consent to such amendment or waiver or to revoke any consent previ-
ously 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 af-
ter such record date unless consents from holders of the principal amount of
Senior 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,
unless it is of the type described in any of clauses (a) through (g) of Sec-
tion 9.02. In such case, the amendment or waiver shall bind each holder of a
Senior Note who has consented to it.
Section 9.05 Notation on or Exchange of Senior Notes.
Senior Notes authenticated and delivered after the execution of any supple-
mental 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 deter-
mine, new Senior Notes so modified as to conform, in the opinion of the Com-
pany and the Trustee, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in ex-
change for outstanding Senior Notes.
Section 9.06 Trustee Protected.
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article 9 if such amendment or supplemental indenture
73
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing 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 incon-
sistent herewith, and that it will be valid and binding upon the Company in
accordance with its terms.
ARTICLE 10
General Provisions
Section 10.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA () 318(c), the imposed duties shall control.
Section 10.02 Notices.
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in person or mailed by first-class
mail, with postage prepaid (registered or certified, return receipt request-
ed), facsimile or overnight air couriers guaranteeing next day delivery, to
the other's address stated in Section 10.10. The Company or the Trustee by no-
tice to the other may designate additional or different addresses for subse-
quent notices or communications.
All notices and communications (other than those sent to holders of Senior
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 confirmed, if transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a holder of a Senior 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 it shall not affect its sufficiency with respect to
other holders.
74
If a notice or communication 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 Senior Notes,
it shall send a copy to the Trustee and each Agent at the same time.
All other notices or communications shall be in writing.
section 10.03 Communication by Holders With Other Holders.
Holders of Senior Notes may communicate pursuant to TIA () 312(b) with other
holders with respect to their rights under this Indenture or the Senior Notes.
The Company, the Trustee, the Registrar and anyone else shall have the protec-
tion of TIA ((S)) 312(c).
section 10.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfac-
tory to the Trustee (which shall include the statements set forth in Sec-
tion 10.05) stating that, in the opinion of such person, all conditions
precedent and covenants, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section
10.05) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
section 10.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ((S)) 314(a)(4)) shall include:
(a) a statement that the person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such cer-
tificate or opinion are based;
75
(c) a statement that, in the opinion of such person, he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condi-
tion has been complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Any Officers' Certificate may be based, insofar as it relates to legal mat-
ters, upon an Opinion of Counsel, unless such Officer knows that the opinion
with respect to the matters upon which his certificate may be based as afore-
said is erroneous. Any Opinion of Counsel may be based, insofar as it relates
to factual matters, upon certificates, statements or opinions of, or represen-
tations by an officer or officers of the Company, or other persons or firms
deemed appropriate by such counsel, unless such counsel knows that the certif-
icates, statements or opinions or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous.
Any Officers' Certificate, statement or Opinion of Counsel may be based, in-
sofar 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 account-
ing matters upon which his certificate, statement or opinion may be based as
aforesaid is erroneous.
section 10.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of holders
of Senior Notes. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 10.07 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking institu-
tions in the City of New York 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 Hol-
iday at a place of payment, payment may be made at that place on the next suc-
ceeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
76
Section 10.08 No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the Company from
time to time shall have any liability for any obligations of the Company under
the Senior Notes or this Indenture or for any claim based on, in respect of,
or by reason of such obligations or their creation. Each holder by accepting a
Senior Note waives and releases all such liability. This waiver and release
are part of the consideration for the Senior Notes. Each of such directors,
officers, employees and stockholders is a third party beneficiary of this Sec-
tion 10.08.
Section 10.09 Counterparts.
This Indenture may be executed in any number of counterparts and by the par-
ties 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 10.10 Other Provisions.
The Company initially appoints the Trustee as Paying Agent, Registrar and
authenticating agent.
The first certificate pursuant to Section 4.03 shall be for the first full
fiscal quarter of the Company following the issuance of Senior Notes hereun-
der.
The reporting date for Section 7.06 is February 15 of each year. The first
reporting date is the first February 15th following the issuance of Senior
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 condi-
tion.
The Company's address is:
Rohr, Inc.
850 Lagoon Drive
Chula Vista, CA 91910
Attention: General Counsel
Facsimile: (619) 691-4222
Telephone: (619) 691-2025
77
The Trustee's address is:
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
Attention: Corporate Trust & Agencies Administration
Facsimile: (212) 858-2952
Telephone: (212) 858-2529
Section 10.11 Governing Law.
The internal laws of the State of New York shall govern this Indenture and
the Senior Notes, without regard to the conflict of laws provisions thereof.
Section 10.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such other indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 10.13 Successors.
All agreements of the Company in this Indenture and the Senior Notes shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 10.14 Severability.
In case any provision in this Indenture or in the Senior Notes shall be in-
valid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.15 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 re-
strict any of the terms or provisions hereof.
78
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly exe-
cuted and attested, all as of the date first above written, signifying their
agreements contained in this Indenture.
SIGNATURES
ROHR, INC.
By _________________________________________
Name:
Title:
Attest:
- -------------------------
IBJ SCHRODER BANK & TRUST
COMPANY
By _________________________________________
Name:
Title:
Attest:
- -------------------------
S-1
EXHIBIT A
(Face of Security)
No. $
CUSIP
ROHR, INC.
% SENIOR NOTE DUE 2003
promises to pay to
or registered assigns,
the principal sum of Dollars on , 2003
Interest Payment Dates: and
Regular Record Dates: and
Certificate of Authentication
This Senior Note is one of the Senior Notes
issued pursuant to the within-mentioned Indenture.
IBJ SCHRODER BANK & TRUST COMPANY, as Trustee
ROHR, INC.
By______________________________ By___________________________________________
Authorized Signature President and Chief Executive Officer
Dated:
By___________________________________________
Secretary
(SEAL)
EXHIBIT A
(Back of Security)
ROHR, INC.
% SENIOR NOTE DUE 2003
1. INTEREST. Rohr, Inc., a Delaware corporation (the "Company"), promises to
pay interest on the principal amount of this Senior Note at the rate per annum
shown above. The Company will pay interest semiannually on May 15 and November
15 of each year. Interest on the Senior Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
, 1994. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. Interest on overdue principal and (to the extent
permitted by law) on overdue installments of interest will accrue at a rate of
% per annum.
2. METHOD OF PAYMENT. The Company will pay interest on the Senior Notes (ex-
cept defaulted interest) to the person in whose name each Senior Note is reg-
istered at the close of business on the May 1 or November 1 immediately pre-
ceding the relevant interest payment date even though Senior Notes are can-
celled after such record date and on or before the interest payment date.
Holders must surrender Senior Notes to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may pay principal and interest by check
payable in such money, and may mail such check to the holder's registered ad-
dress.
3. PAYING AGENT AND REGISTRAR. IBJ Schroder Bank & Trust Company, a New York
banking corporation (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.
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4. INDENTURE. The Company issued the Senior Notes under an Indenture dated
as of May 15, 1994 (the "Indenture") between the Company and the Trustee. The
terms of the Senior Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code ((S))((S)) 77aaa-77bbbb) as in effect on the date of the Indenture. The
Senior Notes are subject to, and qualified by, all such terms, certain of
which are summarized hereon, and holders are referred to the Indenture and
such Act for a statement of such terms. The Senior Notes are unsecured general
obligations of the Company limited to $100,000,000 in aggregate principal
amount. Capitalized terms not defined below have the same meaning as is given
to them in the Indenture.
5. OPTIONAL REDEMPTION. The Company may redeem the Senior Notes, in whole or
in part, prior to maturity at any time on or after , 1999 at
the redemption prices (expressed in percentages of principal amount) set forth
below plus accrued interest to the date fixed for redemption, if redeemed dur-
ing the 12-month period beginning on of each year starting with
the year indicated below.
REDEMPTION
YEAR PRICE
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1999........................................................... %
2000........................................................... %
2001 and thereafter............................................ %
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the date fixed for redemption to each
holder of Senior Notes to be redeemed at his or her registered address. Senior
Notes in denominations larger than $1,000 may be redeemed in part but only in
whole multiples of $1,000. In the event of a redemption of less than all of
the Senior Notes, the Senior Notes will be chosen for redemption by the
Trustee by lot or pro rata or, if required, in compliance with the require-
ments of the principal national securities exchange, if any, on which the Se-
nior Notes are listed. On and after the redemption date interest ceases to ac-
crue on Senior Notes or portions of them called for redemption (unless the
Company defaults in the payment of the redemption price). If this Senior Note
is redeemed subsequent to a record date with respect to any interest payment
date specified above and on or prior to such interest payment date, then any
accrued interest will be paid to the person in whose name this Senior Note is
registered at the close of business on such record date.
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7. CHANGE OF CONTROL. Upon a Change of Control, the Company shall make a
Change of Control Offer to purchase all outstanding securities at a price
equal to 101% of the aggregate principal amount of the Senior Notes, plus ac-
crued and unpaid interest to the date of purchase, such offer to be made as
provided in the Indenture. To accept the Change of Control Offer, the holder
hereof must comply with the terms thereof, including surrendering this Senior
Note, with the "Option of Holder to Elect Purchase" 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 Change of Control Offer mailed
to holders as provided in the Indenture, prior to termination of the Change of
Control Offer.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Senior Notes may be registered and Senior Notes may be
exchanged as provided in the Indenture. As a condition of transfer, the Regis-
trar may require a holder, among other things, to furnish appropriate endorse-
ments and transfer documents and the Company may require a holder to pay any
taxes and fees required by law or permitted by the Indenture. The Registrar
need not exchange or register the transfer of any Senior Note or portion of a
Senior Note selected for redemption. Also, it need not exchange or register
the transfer of any Senior Notes for a period of 15 days before a selection of
Senior Notes to be redeemed.
9. PERSONS DEEMED OWNERS. The registered holder of a Senior Note may be
treated as its owner for all purposes.
10. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Indenture or
the Senior Notes may be amended with the consent of the holders of at least a
majority in principal amount of the then outstanding Senior Notes and any ex-
isting default may be waived with the consent of the holders of a majority in
principal amount of the then outstanding Senior Notes. Without the consent of
any holder, the Indenture or the Senior Notes may be amended to: add to the
covenants of the Company for the benefit of the holders; surrender any right
or power conferred upon the Company; evidence the succession of another person
to the Company and the assumption by such successor of the covenants and obli-
gations of the Company thereunder and in the Senior Notes as permitted in the
Indenture; and cure any ambiguity or correct or supplement any defective pro-
vision herein or make any changes
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in any other provisions of the Indenture which the Company and the Trustee
deem necessary or desirable and which in either case will not adversely affect
the interest of the holders of the Senior Notes.
11. DEFAULTS AND REMEDIES. An Event of Default is: default for 30 days in
payment of interest on the Senior Notes; default in payment of principal of or
premium if any, on the Senior Notes; failure by the Company for 60 days after
notice to it to comply with any of its other agreements in the Indenture or
the Senior Notes (except that with respect to certain other covenants, such
defaults shall be Events of Default with such notice but without such passage
of time); certain defaults under and accelerations prior to maturity of cer-
tain indebtedness; certain final judgments which remain undischarged; and cer-
tain events of bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Trustee or the holders of at least 25% in principal amount of
the then outstanding Senior Notes may declare all the Senior Notes to be due
and payable immediately, except that in the case of an Event of Default aris-
ing from certain events of bankruptcy or insolvency, all outstanding Senior
Notes become due and payable without further action or notice. Holders may not
enforce the Indenture or the Senior Notes except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Senior Notes. Subject to certain limitations, holders of a
majority in principal amount of the then outstanding Senior 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 or interest) if it determines that withholding notice is in their
interests. The Company must furnish quarterly compliance certificates to the
Trustee.
12. TRUSTEE DEALINGS WITH THE COMPANY. 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
its Affiliates and may otherwise deal with the Company or its Affiliates as if
it were not Trustee.
13. NO RECOURSE AGAINST OTHERS. No director, officer, employee or stockhold-
er, as such, of the Company shall have any liability for any obligations of
the Company under the Senior Notes or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. Each holder
by accepting a Senior Note waives and releases all such
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liability. The waiver and release are part of the consideration for the Senior
Notes.
14. AUTHENTICATION. This Senior Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
15. ABBREVIATIONS. Customary abbreviations may be used in the name of a
holder or an assignee, such as: TEN 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.
The Company will furnish to any holder upon written request and without
charge a copy of the Indenture. Requests may be made to: General Counsel,
Rohr, Inc., 850 Lagoon Drive, Chula Vista, California 91910.
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ASSIGNMENT FORM
If you the holder want to assign this Senior Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Senior Note to
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(Insert assignee's social security or tax ID number)
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(Print or type assignee's name, address and zip code) and irrevocably appoint
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agent to transfer this Senior Note on the books of the Company. The agent may
substitute another to act for him.
Date:
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Your signature:
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(Sign exactly as your name appears on the other side of this
Senior Note)
Signature Guarantee:
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Senior Note purchased by the Company pursuant to
Sections 4.10 or 4.16 of the Indenture, check the Box: [_]
If you wish to have a portion of this Senior Note purchased by the Company
pursuant to Sections 4.10 or 4.16 of the Indenture, state the amount in multi-
ples of $1,000:
$
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Date:
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Your signature:
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(Sign exactly as your name appears on the other side of this
Senior Note)
Signature Guarantee:
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