EXHIBIT 4.1
EXECUTION COPY
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INDENTURE
Dated as of May 13, 1998
________________________
By and Among
RENTAL SERVICE CORPORATION
AND
THE SUBSIDIARY GUARANTORS, NAMED HEREIN,
AND
NORWEST BANK MINNESOTA, N.A.,
as Trustee
_______________________
Up to $300,000,000
9% Senior Subordinated Notes due 2008
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CROSS REFERENCE TABLE
TIA
Indenture
Section
- -------
Section
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310(a)(1)..................................................... 8.10
310(a)(5)..................................................... 8.10
310(b)........................................................ 8.10
310(b)(1)..................................................... 8.10
311(a)........................................................ 8.11
311(b)........................................................ 8.11
312(b)........................................................ 13.3
312(c)........................................................ 13.3
313(a)........................................................ 8.6
313(b)........................................................ 8.6
313(c)........................................................ 8.6
314(a)........................................................ 5.9
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE..................... 1
Section 1.1. Definitions.............................................. 1
Section 1.2. Incorporation by Reference of TIA........................ 22
Section 1.3. Rules of Construction.................................... 22
ARTICLE II.
THE SECURITIES................................... 23
Section 2.1. Form and Dating.......................................... 23
Section 2.2. Execution and Authentication............................. 23
Section 2.3. Registrar and Paying Agent............................... 25
Section 2.4. Paying Agent To Hold Assets in Trust..................... 26
Section 2.5. Holder Lists............................................. 26
Section 2.6. Transfer and Exchange.................................... 26
Section 2.7. Replacement Securities................................... 27
Section 2.8. Outstanding Securities................................... 28
Section 2.9. Treasury Securities...................................... 28
Section 2.10. Temporary Securities..................................... 28
Section 2.11. Cancellation............................................. 29
Section 2.12. Defaulted Interest....................................... 29
Section 2.13. CUSIP Number............................................. 29
Section 2.14. Deposit of Monies........................................ 29
Section 2.15. Restrictive Legends...................................... 30
Section 2.16. Book-Entry Provisions for Global Securities.............. 30
Section 2.17. Special Transfer Provisions.............................. 31
Section 2.18. Additional Interest Under Registration Rights Agreement.. 34
ARTICLE III.
REDEMPTION..................................... 34
Section 3.1. Notices to Trustee....................................... 34
Section 3.2. Selection of Securities To Be Redeemed................... 34
Section 3.3. Optional Redemption...................................... 34
Section 3.4. Notice of Redemption..................................... 35
Section 3.5. Effect of Notice of Redemption........................... 36
Section 3.6. Deposit of Redemption Price.............................. 36
Section 3.7. Securities Redeemed in Part.............................. 36
ARTICLE IV.
SUBORDINATION................................... 37
Section 4.1. Securities Subordinated to Senior Indebtedness........... 37
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Section 4.2. Suspension of Payment When Senior Indebtedness in
Default.................................................. 37
Section 4.3. Securities Subordinated to Prior Payment of All
Senior Indebtedness on Dissolution, Liquidation
or Reorganization of Company............................. 38
Section 4.4. Holders To Be Subrogated to Rights of Holders
of Senior Indebtedness................................... 39
Section 4.5. Obligations of the Company Unconditional................. 40
Section 4.6. Trustee Entitled To Assume Payments Not Prohibited
in Absence of Notice..................................... 41
Section 4.7. Application by Trustee of Assets Deposited with It....... 41
Section 4.8. No Waiver of Subordination Provisions.................... 42
Section 4.9. Holders Authorize Trustee To Effectuate
Subordination of Securities.............................. 42
Section 4.10. Right of Trustee To Hold Senior Indebtedness............. 43
Section 4.11. No Suspension of Remedies................................ 43
Section 4.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness............................................. 43
ARTICLE V.
COVENANTS..................................... 44
Section 5.1. Payment of Securities.................................... 44
Section 5.2. Maintenance of Office or Agency.......................... 44
Section 5.3. Limitation on Restricted Payments........................ 44
Section 5.4. Corporate Existence...................................... 46
Section 5.5. Payment of Taxes and Other Claims........................ 46
Section 5.6. Maintenance of Properties and Insurance.................. 46
Section 5.7. Compliance Certificate; Notice of Default................ 47
Section 5.8. Compliance with Laws..................................... 48
Section 5.9. SEC Reports.............................................. 48
Section 5.10. Waiver of Stay, Extension or Usury Laws.................. 48
Section 5.11. Limitation on Transactions with Affiliates............... 48
Section 5.12. Limitation on Incurrence of Additional Indebtedness...... 49
Section 5.13. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries........................ 50
Section 5.14. Limitation on Liens...................................... 51
Section 5.15. Limitation on Change of Control.......................... 51
Section 5.16. Limitation on Asset Sales................................ 53
Section 5.18. Limitation on Designations of Unrestricted Subsidiaries.. 56
Section 5.19. Conduct of Business...................................... 57
Section 5.20. Additional Subsidiary Guarantees......................... 57
ARTICLE VI.
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SUCCESSOR CORPORATION......................... 58
Section 6.1. Limitations on Mergers and Certain Other Transactions.... 58
Section 6.2. Successor Corporation Substituted........................ 59
ARTICLE VII
DEFAULT AND REMEDIES.......................... 60
Section 7.1. Events of Default........................................ 60
Section 7.2. Acceleration............................................. 61
Section 7.3. Other Remedies........................................... 62
Section 7.4. Waiver of Past Defaults.................................. 62
Section 7.5. Control by Majority...................................... 62
Section 7.6. Limitation on Suits...................................... 63
Section 7.7. Rights of Holders To Receive Payment..................... 63
Section 7.8. Collection Suit by Trustee............................... 63
Section 7.9. Trustee May File Proofs of Claim......................... 64
Section 7.10. Priorities............................................... 64
Section 7.11. Rights and Remedies Cumulative........................... 64
Section 7.12. Delay or Omission Not Waiver............................. 65
Section 7.13. Undertaking for Costs.................................... 65
ARTICLE VIII
TRUSTEE....................................... 65
Section 8.1. Duties of Trustee........................................ 65
Section 8.2. Rights of Trustee........................................ 66
Section 8.3. Individual Rights of Trustee............................. 67
Section 8.4. Trustee's Disclaimer..................................... 67
Section 8.5. Notice of Default........................................ 68
Section 8.6. Reports by Trustee to Holders............................ 68
Section 8.7. Compensation and Indemnity............................... 68
Section 8.8. Replacement of Trustee................................... 69
Section 8.9. Successor Trustee by Merger, Etc......................... 70
Section 8.10. Eligibility; Disqualification............................ 70
Section 8.11. Preferential Collection of Claims Against Company........ 70
ARTICLE IX
SATISFACTION AND DISCHARGE OF INDENTURE........................ 70
Section 9.1. Termination of the Company's Obligations................. 70
Section 9.2. Legal Defeasance and Covenant Defeasance................. 71
Section 9.3. Application of Trust Money............................... 74
Section 9.4. Repayment to the Company or Subsidiary Guarantors........ 74
Section 9.5. Reinstatement............................................ 75
ARTICLE X.
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AMENDMENTS, SUPPLEMENTS AND WAIVERS............................. 75
Section 10.1. Without Consent of Holders............................... 75
Section 10.2. With Consent of Holders.................................. 75
Section 10.3. Compliance with TIA...................................... 76
Section 10.4. Revocation and Effect of Consents........................ 77
Section 10.5. Notation on or Exchange of Securities.................... 77
Section 10.6. Trustee To Sign Amendments, Etc.......................... 77
ARTICLE XI
GUARANTEE..................................... 78
Section 11.1. Unconditional Guarantee................................. 78
Section 11.2. Subordination of Guarantee.............................. 79
Section 11.3. Severability............................................ 79
Section 11.4. Release of a Subsidiary Guarantor....................... 79
Section 11.5. Limitation of Subsidiary Guarantor's Liability.......... 79
Section 11.6. Subsidiary Guarantors May Consolidate, etc., on
Certain Terms........................................... 80
Section 11.7. Contribution............................................ 80
Section 11.8. Waiver of Subrogation................................... 81
Section 11.9. Waiver of Stay, Extension or Usury Laws................. 81
ARTICLE XII
SUBORDINATION OF GUARANTEE OBLIGATIONS....................... 82
Section 12.1. Guarantee Obligations Subordinated to Guarantor Senior
Indebtedness................................................ 82
Section 12.2. Suspension of Guarantee Obligations When Guarantor Senior
Indebtedness in Default..................................... 82
Section 12.3. Guarantee Obligations Subordinated to Prior Payment of All
Guarantor Senior Indebtedness on Dissolution, Liquidation
or Reorganization of Such Subsidiary Guarantor.............. 83
Section 12.4. Holders of Guarantee Obligations To Be Subrogated to
Rights of Holders of Guarantor Senior Indebtedness.......... 85
Section 12.5. Obligations of the Subsidiary Guarantors Unconditional...... 86
Section 12.6. Trustee Entitled To Assume Payments Not Prohibited in
Absence of Notice........................................... 86
Section 12.7. Application by Trustee of Assets Deposited with It.......... 87
Section 12.8. No Waiver of Subordination Provisions....................... 87
Section 12.9. Holders Authorize Trustee To Effectuate Subordination
of Guarantee Obligations.................................... 88
Section 12.10. Right of Trustee To Hold Guarantor Senior Indebtedness...... 88
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Section 12.11. No Suspension of Remedies................................... 88
Section 12.12. No Fiduciary Duty of Trustee to Holders of Guarantor Senior
Indebtedness................................................ 89
ARTICLE XIII
MISCELLANEOUS................................... 89
Section 13.1. TIA Controls................................................ 89
Section 13.2. Notices..................................................... 89
Section 13.3. Communications by Holders with Other Holders................ 90
Section 13.4. Certificate and Opinion as to Conditions Precedent.......... 90
Section 13.5. Statements Required in Certificate or Opinion............... 91
Section 13.6. Rules by Trustee, Paying Agent, Registrar................... 91
Section 13.7. Legal Holidays.............................................. 91
Section 13.8. Governing Law............................................... 91
Section 13.9. No Adverse Interpretation of Other Agreements............... 92
Section 13.10. No Recourse Against Others.................................. 92
Section 13.11. Successors.................................................. 92
Section 13.12. Duplicate Originals......................................... 92
Section 13.13. Headings and Table of Contents.............................. 92
Section 13.14. Severability................................................ 92
EXHIBIT A FORM OF SECURITY.................................. A-1
EXHIBIT B FORM OF LEGEND FOR GLOBAL SECURITIES.............. B-1
EXHIBIT C FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS TO NON-QIB ACCREDITED INVESTORS.... C-1
EXHIBIT D FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S........... D-1
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1
EXHIBIT 4.1
INDENTURE, dated as of May 13, 1998, among RENTAL SERVICE CORPORATION
, a Delaware corporation (the "Company"), the SUBSIDIARY GUARANTORS (as defined
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herein), and NORWEST BANK MINNESOTA, N.A., as Trustee.
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's 9%
Senior Subordinated Notes due 2008 (the "Securities"):
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ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of
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its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with the
Company or any of its Restricted Subsidiaries or assumed in connection with the
acquisition of assets from such Person and in each case not incurred by such
Person in connection with, or in anticipation or contemplation of, such Person
becoming a Restricted Subsidiary of the Company or such acquisition, merger or
consolidation.
"Affiliate" means, with respect to any specified Person, any other
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Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
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direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
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foregoing.
"Affiliate Transaction" shall have the meaning provided in Section
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5.11(a).
"Agent" means any Registrar, Paying Agent or co-Registrar.
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"Agent Members" has the meaning provided in Section 2.16.
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"Asset Acquisition" means (a) an Investment by the Company or any
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Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or of any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (b) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person (other than
a Restricted Subsidiary of the Company) which constitute all or substantially
all of the assets of such Person or comprises any division or line of business
of such Person or any other properties or assets of such Person other than in
the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
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conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment
2
or other transfer for value by the Company or any of its Restricted Subsidiaries
(including any Sale and Leaseback Transaction) to any Person other than the
Company or a Wholly Owned Restricted Subsidiary of the Company of (a) any
Capital Stock of any Restricted Subsidiary of the Company; or (b) any other
property or assets of the Company or any Restricted Subsidiary of the Company
other than in the ordinary course of business; provided, however, that Asset
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Sales shall not include (i) any transaction or series of related transactions
for which the Company or its Restricted Subsidiaries receive aggregate
consideration of less than $500,000 and (ii) the sale, lease, conveyance,
disposition or other transfer of all or substantially all of the assets of the
Company as permitted under Section 6.1.
"Bank Facility" means the Second Amended and Restated Credit Agreement,
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dated as of December 2, 1997, among the Company, the Subsidiaries of the
Company, the lenders party thereto in their capacities as lenders thereunder,
Bankers Trust Company, as issuing bank, and BT Commercial Corporation, as agent,
as amended, together with the related documents thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreements may be further amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement or agreements extending the maturity of, refinancing, replacing or
otherwise restructuring (including increasing the amount of available borrowings
thereunder (provided that such increase in borrowings is permitted by Section
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5.12) or adding Restricted Subsidiaries of the Company as additional borrowers
or guarantors thereunder) all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the same or
any other agent, lender or group of lenders.
"Bank Facility Agent" means the then acting Agent under (and as defined in)
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the Bank Facility or any successor thereto exercising substantially the same
rights and powers; provided, that if, and for so long as, there is no acting
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Agent or such successor, then the Bank Facility Agent shall at all times
constitute the holders of a majority in outstanding principal amount of
Indebtedness under or in respect of the Bank Facility.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal, state or
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foreign law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of directors of
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such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
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resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Borrowing Base" means, with respect to any Foreign Subsidiary as of any
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date, an amount equal to the sum of (a) 85% of the net book value of accounts
receivable (other than intercompany receivables) owned by such Foreign
Subsidiary as of such date that are not more than 90 days past due and (b) 85%
of the value (the lower of net book value or orderly liquidation value) of all
rental equipment owned by such Foreign Subsidiary as of such date,
3
all calculated on a consolidated basis for such Foreign Subsidiary and its
Restricted Subsidiaries in accordance with the method of accounting used for
financial calculations under the applicable credit facility for such Foreign
Subsidiary. To the extent that information is not available as to the amount of
accounts receivable or rental equipment as of a specific date, a Foreign
Subsidiary may utilize the most recent available information provided to the
lenders under the applicable credit facility for the purpose of calculating the
Borrowing Base.
"Business Day" means a day that is not a Legal Holiday.
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"Capitalized Lease Obligation" means, as to any Person, the obligations of
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such Person under a lease that are required to be classified and accounted for
as capital lease obligations under GAAP and, for purposes of this definition,
the amount of such obligations at any date shall be the capitalized amount of
such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a corporation,
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any and all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including each class
of Common Stock and Preferred Stock of such Person and (ii) with respect to any
Person that is not a corporation, any and all partnership or other equity
interests of such Person.
"Cash Equivalents" means (i) marketable direct obligations issued by, or
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unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation ("S&P") or Moody's
---
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
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than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any bank organized under the laws of
the United States of America or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250.0 million; (v) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of one or more of the following
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events: (i) any sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or substantially all of the assets of
the Company to any Person or group of related Persons for purposes of Section
13(d) of the Exchange Act (a "Group"), together with any Affiliates thereof
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(whether or not otherwise in compliance with the provisions of this
4
Indenture) other than to the Principals and their Related Parties; (ii) any
Person or Group (other than the Principals and their Related Parties) shall
become the owner, directly or indirectly, beneficially or of record, of shares
representing more than 35% of the aggregate ordinary voting power represented by
the issued and outstanding Capital Stock of the Company and the Principals and
their Related Parties beneficially own, directly or indirectly, shares
representing a lesser percentage of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the Company and do
not have the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors; or (iii) the
replacement of a majority of the Board of Directors of the Company over a two-
year period from the directors who constituted the Board of Directors of the
Company at the beginning of such period, and such replacement shall not have
been approved by a vote of at least a majority of the Board of Directors of the
Company then still in office who either were members of such Board of Directors
at the beginning of such period or whose election as a member of such Board of
Directors was previously so approved.
"Change of Control Offer" shall have the meaning provided in Section
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5.15(a).
"Change of Control Payment Date" shall have the meaning provided in Section
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5.15(b).
"Commission" means the Securities and Exchange Commission.
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"Common Stock" of any Person means any and all shares, interests or other
------------
participations in, and other equivalents (however designated and whether voting
or non-voting) of such Person's common stock, whether outstanding on the Issue
Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means Rental Service Corporation, a Delaware corporation, until a
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successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Consolidated EBITDA" means, with respect to any Person, for any period,
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the sum (without duplication) of (i) Consolidated Net Income and (ii) to the
extent Consolidated Net Income has been reduced thereby, (A) all income taxes of
such Person and its Restricted Subsidiaries paid or accrued in accordance with
GAAP for such period (other than income taxes attributable to extraordinary,
unusual or nonrecurring gains or losses or taxes attributable to sales or
dispositions outside the ordinary course of business), (B) Consolidated Interest
Expense and (C) Consolidated Non-cash Charges less any non-cash items increasing
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Consolidated Net Income for such period, all as determined on a consolidated
basis for such Person and its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
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Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters for which internal financials are available (the "Four Quarter
------------
Period") ending on or prior to the date of the transaction giving rise to the
- ------
need to calculate the Consolidated Fixed Charge Coverage Ratio (the "Transaction
-----------
Date") to Consolidated Fixed Charges of such Person for the Four Quarter Period.
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In addition to and without limitation of the foregoing, for purposes of this
5
definition, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis for the period of such
--- -----
calculation to (i) the incurrence or repayment of any Indebtedness of such
Person or any of its Restricted Subsidiaries (and the application of the
proceeds thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the application of the
proceeds thereof), other than the incurrence or repayment of Indebtedness in the
ordinary course of business for working capital purposes, occurring during the
Four Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such incurrence or
repayment, as the case may be (and the application of the proceeds thereof),
occurred on the first day of the Four Quarter Period and (ii) any Asset Sales or
Asset Acquisitions (including, without limitation, any Asset Acquisition giving
rise to the need to make such calculation as a result of such Person or one of
its Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA (including any pro forma expense and cost reductions as
determined in accordance with Regulation S-X under the Exchange Act)
attributable to the assets which are the subject of the Asset Acquisition or
Asset Sale during the Four Quarter Period) occurring during the Four Quarter
Period or at any time subsequent to the last day of the Four Quarter Period and
on or prior to the Transaction Date, as if such Asset Sale or Asset Acquisition
(including the incurrence, assumption or liability for any such Acquired
Indebtedness) occurred on the first day of the Four Quarter Period. If such
Person or any of its Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give effect to the
incurrence of such guaranteed Indebtedness as if such Person or any Restricted
Subsidiary of such Person had directly incurred or otherwise assumed such
guaranteed Indebtedness. Furthermore, in calculating "Consolidated Fixed
Charges" for purposes of determining the denominator (but not the numerator) of
this "Consolidated Fixed Charge Coverage Ratio," (1) interest on outstanding
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Four Quarter Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
the operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any Person for any
--------------------------
period, the sum, without duplication, of (i) Consolidated Interest Expense, plus
(ii) the product of (x) the amount of all dividend payments on any series of
Preferred Stock of such Person (other than dividends paid in Qualified Capital
Stock) paid, accrued or scheduled to be paid or accrued during such period times
(y) a fraction, the numerator of which is one and the denominator of which is
one minus the then current effective consolidated federal, state and local tax
rate of such Person, expressed as a decimal.
6
"Consolidated Interest Expense" means, with respect to any Person for any
-----------------------------
period, the sum of, without duplication: (i) the aggregate of the interest
expense of such Person and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including without
limitation, (a) any amortization of debt discount and amortization or write-off
of deferred financing costs (but excluding any write-offs of deferred financing
fees in connection with any refinancing or retirement of the Bank Facility
undertaken in conjunction with the offering of the Securities on the Issue
Date), (b) the net costs under Interest Swap Obligations, (c) all capitalized
interest and (d) the interest portion of any deferred payment obligation; and
(ii) the interest component of Capitalized Lease Obligations paid, accrued
and/or scheduled to be paid or accrued by such Person and its Restricted
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person, for any
-----------------------
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided, that there shall be excluded therefrom (a) after-tax gains
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from Asset Sales or abandonments or reserves relating thereto, (b) after-tax
items classified as extraordinary or nonrecurring gains, (c) the net income of
any Person acquired in a "pooling of interests" transaction accrued prior to the
date it becomes a Restricted Subsidiary of the referent Person or is merged or
consolidated with the referent Person or any Restricted Subsidiary of the
referent Person, (d) the net income (but not loss) of any Restricted Subsidiary
of the referent Person to the extent that the declaration of dividends or
similar distributions by that Restricted Subsidiary of that income is restricted
by a contract, operation of law or otherwise, (e) the net income of any Person,
other than a Restricted Subsidiary of the referent Person, except to the extent
of cash dividends or distributions paid to the referent Person or to a Wholly
Owned Restricted Subsidiary of the referent Person by such Person, (f) any
restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at
any time following the Issue Date, (g) income or loss attributable to
discontinued operations (including, without limitation, operations disposed of
during such period whether or not such operations were classified as
discontinued), and (h) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's assets, any
earnings of the successor corporation prior to such consolidation, merger or
transfer of assets.
"Consolidated Net Worth" of any Person means the consolidated stockholders'
----------------------
equity of such Person, determined on a consolidated basis in accordance with
GAAP, less (without duplication) amounts attributable to Disqualified Capital
Stock of such Person.
"Consolidated Non-cash Charges" means, with respect to any Person, for any
-----------------------------
period, the aggregate depreciation, amortization and other non-cash expenses of
such Person and its Restricted Subsidiaries reducing Consolidated Net Income of
such Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary item or loss or any such charge which requires an
accrual of or a reserve for cash charges for any future period).
7
"Currency Swap Obligations" means any foreign exchange contract, currency
-------------------------
swap agreement or other similar agreement or arrangement designed to protect the
Company or any of its Restricted Subsidiaries against fluctuations in currency
values.
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator
---------
or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or with
-------
the lapse of time or the giving of notice or both would be, an Event of Default.
"Depository" shall mean The Depository Trust Company, New York, New York,
----------
or a successor thereto registered under the Exchange Act or other applicable
statute or regulation.
"Designated Senior Indebtedness" means (i) Indebtedness under or in respect
------------------------------
of the Bank Facility and (ii) any other Indebtedness constituting Senior
Indebtedness or Guarantor Senior Indebtedness which, at the time of
determination, has an aggregate principal amount of at least $25.0 million and
is specifically designated in the instrument evidencing such Senior Indebtedness
as "Designated Senior Indebtedness" by the Company.
"Designation" has the meaning set forth under Section 5.18.
-----------
"Designation Amount" has the meaning set forth under Section 5.18.
------------------
"Disqualified Capital Stock" means that portion of any Capital Stock which,
--------------------------
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof on or prior to the final
maturity date of the Securities.
"Equity Offering" means a public or private issuance of Qualified Capital
---------------
Stock of the Company for cash.
"Event of Default" shall have the meaning provided in Section 7.1.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
------------
any successor statute or statutes thereto.
"Exchange Notes" means the 9% Senior Subordinated Notes due 2008, Series B,
--------------
to be issued in exchange for the Initial Securities pursuant to the Registration
Rights Agreement or, with respect to the Initial Securities issued under this
Indenture subsequent to the Issue Date pursuant to Section 2.2, a registration
rights agreement substantially identical to the Registration Rights Agreement.
"Exchange Offer" has the meaning provided in the Registration Rights
--------------
Agreement.
8
"fair market value" means, with respect to any asset or property, the price
-----------------
which could be negotiated in an arm's-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market value
shall be determined by the Board of Directors of the Company acting in good
faith and shall be evidenced by a Board Resolution of the Board of Directors of
the Company delivered to the Trustee.
"Foreign Subsidiary" means any Restricted Subsidiary that is not organized
------------------
under the laws of the United States of America or any state thereof or the
District of Columbia.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Issue Date.
"Global Security" shall mean a Security which is executed by the Company
---------------
and authenticated and delivered by the Trustee to the Depository or pursuant to
the Depository's instruction, all in accordance with this Indenture and pursuant
to a written order, which shall be registered in the name of the Depository or
its nominee and which, together with any other Global Security representing
Securities hereunder, shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the outstanding Securities.
"Guarantee" means the guarantee of each Subsidiary Guarantor set forth in
---------
Article Eleven and any additional guarantee of the Securities executed by any
Restricted Subsidiary of the Company.
"Guarantee Obligations" shall have the meaning provided in Section 12.1.
---------------------
"Guarantor Payment Blockage Period" shall have the meaning provided in
---------------------------------
Section 12.2(b).
"Guarantor Senior Indebtedness" means with respect to any Subsidiary
-----------------------------
Guarantor, (i) the principal of, premium, if any, and interest (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on any Indebtedness of a
Subsidiary Guarantor, whether outstanding on the Issue Date or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Guarantee of such Subsidiary Guarantor.
Without limiting the generality of the foregoing, "Guarantor Senior
Indebtedness" shall also include the principal of, premium, if any, interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on, and
all other amounts owing in respect of, (x)
9
all monetary obligations of every nature of the Company under the Bank Facility,
including, without limitation, obligations to pay principal and interest,
reimbursement obligations under letters of credit, fees, expenses and
indemnities, (y) all Interest Swap Obligations and (z) all Currency Swap
Obligations, in each case whether outstanding on the Issue Date or thereafter
incurred. Notwithstanding the foregoing, "Guarantor Senior Indebtedness" shall
not include (i) any Indebtedness of such Subsidiary Guarantor to a Restricted
Subsidiary of such Subsidiary Guarantor, (ii) Indebtedness to, or guaranteed on
behalf of, any shareholder, director, officer or employee of such Subsidiary
Guarantor or any Restricted Subsidiary of such Subsidiary Guarantor (including,
without limitation, amounts owed for compensation), (iii) Indebtedness to trade
creditors and other amounts incurred in connection with obtaining goods,
materials or services, (iv) Indebtedness represented by Disqualified Capital
Stock, (v) any liability for federal, state, local or other taxes owed or owing
by such Subsidiary Guarantor, (vi) Indebtedness incurred in violation of Section
5.12, (vii) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11, United States Code, is without
recourse to the Company and (viii) any Indebtedness which is, by its express
terms, subordinated in right of payment to any other Indebtedness of such
Subsidiary Guarantor. Notwithstanding anything to the contrary contained herein,
no Indebtedness incurred at any time under the Bank Facility (as such facility
is in existence on the Issue Date) shall be considered subordinate in right of
payment to any other Indebtedness incurred under the Bank Facility (as such
facility is in existence on the Issue Date).
"Holder" means the Person in whose name a Security is registered on the
------
Registrar's books.
"IAI Global Security" means, a permanent global security in registered form
-------------------
representing the aggregate principal amount of the Securities sold to
Institutional Accredited Investors.
"Indebtedness" means with respect to any Person, without duplication, (i)
------------
all Obligations of such Person for borrowed money, (ii) all Obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all Capitalized Lease Obligations of such Person, (iv) all Obligations of such
Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business and payable in accordance with
customary terms or that are not overdue by 90 days or more or are being
contested in good faith), (v) all Obligations for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction, (vi) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (i) through (v) above and clause (viii)
below, (vii) all Obligations of any other Person of the type referred to in
clauses (i) through (vi) which are secured by any lien on any property or asset
of such Person, the amount of such Obligation being deemed to be the lesser of
the fair market value of such property or asset or the amount of the Obligation
so secured, (viii) all Obligations under currency agreements and interest swap
agreements of such Person, and (ix) all Disqualified Capital Stock issued by
such Person with the amount of Indebtedness represented by such Disqualified
Capital Stock being equal to the greater of its voluntary or involuntary
liquidation preference and its maximum fixed repurchase price, but excluding
10
accrued dividends, if any. For purposes hereof, the "maximum fixed repurchase
price" of any Disqualified Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were purchased on any date
on which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value shall be
determined reasonably and in good faith by the Board of Directors of the issuer
of such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from time to
---------
time in accordance with the terms hereof.
"Independent Financial Advisor" means a firm (i) which does not, and whose
-----------------------------
directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company (other than an interest in less than
1% of the Company's Common Stock or any other publicly traded securities of the
Company) and (ii) which, in the judgment of the Board of Directors of the
Company, is otherwise independent and qualified to perform the task for which it
is to be engaged.
"Initial Purchasers" means, collectively, BT Alex. Brown Incorporated,
------------------
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated and William Blair & Company.
"Initial Securities" means, collectively, (i) the % Senior Subordinated
------------------
Notes due 2008 of the Company issued on the Issue Date and (ii) one or more
series of additional % Senior Subordinated Notes due 2008 that are issued
under this Indenture subsequent to the Issue Date pursuant to Section 2.2, in
each case for so long as such securities constitute Restricted Securities.
"Institutional Accredited Investor" means an institution that is an
---------------------------------
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means the stated maturity of an installment of
---------------------
interest on the Securities.
"Interest Swap Obligations" means the obligations of any Person pursuant to
-------------------------
any arrangement with any other Person, whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such other Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include, without limitation, interest rate swaps, caps, floors, collars
and similar agreements.
"Investment" means, with respect to any Person, any direct or indirect loan
----------
or other extension of credit (including, without limitation, a guarantee) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any
11
Capital Stock, bonds, notes, debentures or other securities or evidences of
Indebtedness issued by, any Person. "Investment" shall exclude extensions of
trade credit by the Company and its Restricted Subsidiaries on commercially
reasonable terms in accordance with normal trade practices of the Company or
such Restricted Subsidiary, as the case may be. For the purposes of Section 5.3,
(i) "Investment" shall include a portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of any
Restricted Subsidiary at the time that such Restricted Subsidiary is designated
an Unrestricted Subsidiary and shall exclude a portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value of the
net assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (ii) the amount of any
Investment shall be the original cost of such Investment plus the cost of all
additional Investment by the Company or any of its Restricted Subsidiaries,
without any adjustments for increases or decreases in value, or write-ups,
write-downs, or write-offs with respect to such Investment, reduced by the
payment of dividends or distributions in connection with such Investment or any
other amounts received in respect of such Investment; provided that no such
--------
payment of dividends or distributions or receipt of any such other amounts shall
reduce the amount of any Investment if such payment of dividends or
distributions or receipt of any such amounts would be included in Consolidated
Net Income. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, at least 51% of
the outstanding Common Stock of such Restricted Subsidiary, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such Restricted Subsidiary
not sold or disposed of.
"Investment Grade Rating" means a rating of BBB- or higher by S&P and Baa3
-----------------------
or higher by Moody's or the equivalent of such rating by such rating agencies.
"Issue Date" means May 13, 1998, the date of original issuance of the
----------
Securities under this Indenture.
"Legal Holiday" shall have the meaning provided in Section 13.7.
-------------
"Lien" means any lien, mortgage, deed of trust, pledge, security interest,
----
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).
"Maturity Date" means May 15, 2008.
-------------
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds in
-----------------
the form of cash or Cash Equivalents including payments in respect of deferred
payment obligations when received in the form of cash or Cash Equivalents (other
than the portion of any such deferred payment constituting interest) received by
the Company or any of its Restricted Subsidiaries from such Asset Sale net of
(a) reasonable out-of-pocket expenses and fees relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking fees
and sales commissions), (b) taxes paid or payable after taking into account any
12
reduction in consolidated tax liability due to available tax credits or
deductions and any tax sharing arrangements, (c) repayment of Indebtedness that
is required to be repaid in connection with such Asset Sale and (d) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale.
"Net Proceeds Offer" shall have the meaning provided in Section 5.16(a).
------------------
"Net Proceeds Offer Amount" shall have the meaning provided in Section
-------------------------
5.16(a).
"Net Proceeds Offer Payment Date" shall have the meaning provided in
-------------------------------
Section 5.16(a).
"Net Proceeds Trigger Date" shall have the meaning provided in Section
-------------------------
5.16(a).
"Non-U.S. Person" means a person who is not a U.S. person, as defined in
---------------
Regulation S.
"Obligations" means all obligations for principal, premium, interest,
-----------
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Offering Memorandum" means the offering memorandum of the Company dated
-------------------
May 8, 1998 relating to the Securities.
"Officer" means, with respect to any Person, the Chief Executive Officer,
-------
the Chief Financial Officer, Treasurer or the Chief Accounting Officer of such
Person.
"Officers' Certificate" means a certificate signed in the name of and on
---------------------
behalf of the Company by the Chairman, a Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller or an
Assistant Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee and otherwise complying with the requirements of
Section 13.5.
"operating lease" means any lease the obligations under which do not
---------------
constitute Capitalized Lease Obligations.
"Opinion of Counsel" means a written opinion from legal counsel who is
------------------
reasonably acceptable to the Trustee complying with the requirements of Section
13.5. Unless otherwise required by the Trustee, the legal counsel may be an
employee of or counsel to the Company or the Trustee.
13
"Paying Agent" shall have the meaning provided in Section 2.3, except that
------------
for the purposes of Articles Three and Nine and Sections 5.15 and 5.16, the
Paying Agent shall not be the Company or an Affiliate of the Company.
"Permitted Indebtedness" means, without duplication, each of the following:
----------------------
(i) Indebtedness represented by the Securities in an aggregate
principal amount not to exceed $200.0 million, and the Guarantees thereof,
issued on the date hereof;
(ii) Indebtedness of the Company and the Subsidiary Guarantors
(A) incurred pursuant to the revolving credit provisions of the Bank
Facility or one or more other credit facilities in an aggregate principal
amount at any time outstanding not to exceed $500.0 million; provided that
--------
such amount shall be reduced by any amounts applied to the permanent
reduction of such Indebtedness pursuant to Section 5.16 and (B) incurred
pursuant to the term loan provisions of the Bank Facility or one or more
other credit facilities in an aggregate principal amount at any time
outstanding not to exceed $100.0 million, less any amounts applied to the
permanent reduction of such Indebtedness pursuant to Section 5.16 and less
the amount of any scheduled amortization payments or mandatory prepayments
when actually paid or permanent reductions thereof (excluding any such
payments to the extent refinanced at the time of payment under any
Refinancing of the Bank Facility);
(iii) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date;
(iv) Interest Swap Obligations or Currency Swap Obligations of
the Company covering Indebtedness of the Company or any of the Subsidiary
Guarantors and Interest Swap Obligations or Currency Swap Obligations of
any Subsidiary Guarantor covering Indebtedness of such Subsidiary
Guarantor; provided, however, that (a) such Interest Swap Obligations are
-------- -------
entered into to protect the Company and the Subsidiary Guarantors from
fluctuations in interest rates on Indebtedness incurred in accordance with
this Indenture and (b) such Currency Swap Obligations are entered into to
protect the Company and the Subsidiary Guarantors from fluctuations in
currency values;
(v) Indebtedness of a Wholly Owned Restricted Subsidiary of
the Company to the Company or to a Wholly Owned Restricted Subsidiary of
the Company for so long as such Indebtedness is held by the Company or a
Wholly Owned Restricted Subsidiary of the Company, in each case subject to
no Lien held by a Person other than the Company or a Wholly Owned
Restricted Subsidiary of the Company, or other than a Lien on the related
intercompany note securing Indebtedness under the Bank Facility; provided
that if as of any date any Person other than the Company or a Wholly Owned
Restricted Subsidiary of the Company owns or holds any such Indebtedness or
holds a Lien in respect of such Indebtedness, other than a lien on the
related intercompany note securing Indebtedness under the Bank Facility,
such date shall be deemed the
14
incurrence of Indebtedness not constituting Permitted Indebtedness by the
issuer of such Indebtedness;
(vi) Indebtedness of the Company to a Wholly Owned Restricted
Subsidiary of the Company for so long as such Indebtedness is held by a
Wholly Owned Restricted Subsidiary of the Company, in each case subject to
no Lien, other than a Lien on the related intercompany note securing
Indebtedness under the Bank Facility; provided that (a) any Indebtedness of
--------
the Company to any Wholly Owned Restricted Subsidiary of the Company is
unsecured and subordinated, pursuant to a written agreement, to the
Company's obligations under this Indenture and the Securities and (b) if as
of the date any Person other than a Wholly Owned Restricted Subsidiary of
the Company owns or holds any such Indebtedness or any Person holds a Lien
in respect of such Indebtedness, other than a lien on the related
intercompany note securing Indebtedness under the Bank Facility, such date
shall be deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness by the Company;
(vii) Indebtedness of the Company and the Subsidiary Guarantors
arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary
course of business; provided, however, that such Indebtedness is
-------- -------
extinguished within two business days of incurrence;
(viii) Indebtedness of the Company and the Subsidiary Guarantors
represented by letters of credit for the account of the Company or such
Subsidiary Guarantors, as the case may be, in order to provide security for
workers' compensation claims, payment obligations in connection with self-
insurance or similar requirements in the ordinary course of business;
(ix) Indebtedness of the Company or a Subsidiary Guarantor in
connection with one or more standby letters of credit, guarantees,
performance bonds or other reimbursement obligations, in each case, issued
in the ordinary course of business and not in connection with the borrowing
of money;
(x) Indebtedness of the Company or a Subsidiary Guarantor
arising from agreements of the Company or a Subsidiary Guarantor providing
for indemnification, adjustment of purchase price or similar obligations,
in each case, incurred or assumed in connection with the acquisition or
disposition of any business, assets or a Subsidiary;
(xi) Indebtedness of the Company and the Subsidiary Guarantors
represented by Capitalized Lease Obligations and Purchase Money
Indebtedness incurred in the ordinary course of business in an amount not
to exceed $20.0 million at any one time outstanding;
(xii) Refinancing Indebtedness;
15
(xiii) guarantees by the Company of Indebtedness of a Restricted
Subsidiary permitted to be incurred under this Indenture and guarantees by
a Subsidiary Guarantor of Indebtedness of the Company or any Restricted
Subsidiary permitted to be incurred under this Indenture;
(xiv) additional Indebtedness of the Company and any Subsidiary
Guarantor in an aggregate principal amount not to exceed $15.0 million at
any one time outstanding; and
(xv) Indebtedness of a Foreign Subsidiary other than a Foreign
Subsidiary which is a Subsidiary Guarantor which, when aggregated with the
principal amount of all other Indebtedness of such Foreign Subsidiary then
outstanding and incurred pursuant to this clause (xv), does not exceed the
amount of the Borrowing Base of such Foreign Subsidiary.
For purposes of determining whether any Indebtedness is Permitted
Indebtedness, (i) in the event that an item of Indebtedness meets the criteria
of more than one of the types of Indebtedness described above, the Company, in
its sole discretion, will classify such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in one of the above
clauses and (ii) an item of Indebtedness may be divided and classified in more
than one of the types of Indebtedness described above.
"Permitted Investments" means (i) Investments by the Company or any
---------------------
Restricted Subsidiary of the Company in any Person that is or will become
immediately after such Investment a Wholly Owned Restricted Subsidiary of the
Company or that will merge or consolidate into the Company or a Wholly Owned
Restricted Subsidiary of the Company, (ii) Investments in the Company by any
Restricted Subsidiary of the Company; provided that any Indebtedness evidencing
--------
such Investment is unsecured and subordinated, pursuant to a written agreement,
to the Company's obligations under the Securities and this Indenture; (iii)
investments in cash and Cash Equivalents; (iv) loans and advances to employees
and officers of the Company and its Restricted Subsidiaries in the ordinary
course of business for bona fide business purposes not in excess of $1,000,000
at any one time outstanding; (v) Interest Swap Obligations or Currency Swap
Obligations entered into in the ordinary course of the Company's or its
Restricted Subsidiaries' businesses and otherwise in compliance with this
Indenture; (vi) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers; (vii) promissory
notes or other securities accepted from trade creditors or customers in the
ordinary course of business; (viii) guarantees by the Company or any Subsidiary
Guarantor of Indebtedness otherwise permitted to be incurred under this
Indenture; (ix) Investments made by the Company or its Restricted Subsidiaries
as a result of consideration received in connection with an Asset Sale made in
compliance with Section 5.16; and (x) Investments in joint ventures and
Unrestricted Subsidiaries in an aggregate amount at any one time not to exceed
$15.0 million.
"Permitted Liens" means the following types of Liens:
---------------
16
(i) Liens for taxes, assessments or governmental charges or
claims either (a) not delinquent or (b) contested in good faith by
appropriate proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves as may be
required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or other
appropriate provisions, if any, as shall be required by GAAP shall have
been made in respect thereof;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, including any Lien securing letters of
credit issued in the ordinary course of business in connection therewith,
or to secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(iv) judgment Liens not giving rise to an Event of Default so
long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment shall not have been finally terminated or the period within which
such proceedings may be initiated shall not have expired;
(v) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not interfering
in any material respect with the ordinary conduct of the business of the
Company or any of its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized
Lease Obligation; provided that such Liens do not extend to any property or
--------
assets which is not leased property subject to such Capitalized Lease
Obligation;
(vii) purchase money Liens to finance property or assets of the
Company or any Restricted Subsidiary of the Company acquired in the
ordinary course of business; provided, however, that (A) the related
-------- -------
Purchase Money Indebtedness shall not exceed the cost of such property or
assets and shall not be secured by any property or assets of the Company or
any Restricted Subsidiary of the Company other than the property and assets
so acquired and proceeds thereof and (B) the Lien securing such
Indebtedness shall be created within 90 days of such acquisition;
(viii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
17
(ix) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual, or warranty requirements
of the Company or any of its Restricted Subsidiaries, including rights of
offset and set-off;
(xi) Liens securing Interest Swap Obligations or Currency Swap
Obligations which Interest Swap Obligations or Currency Swap Obligations,
as the case may be, relate to Indebtedness that is otherwise permitted
under this Indenture;
(xii) Liens securing Acquired Indebtedness incurred in
accordance with Section 5.12; provided that (A) such Liens secured such
--------
Acquired Indebtedness at the time of and prior to the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary of the
Company and were not granted in connection with, or in anticipation of, the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company and (B) such Liens do not extend to or cover any
property or assets of the Company or of any of its Restricted Subsidiaries
other than the property or assets that secured the Acquired Indebtedness
prior to the time such Indebtedness became Acquired Indebtedness of the
Company or a Restricted Subsidiary of the Company and are no more favorable
to the lienholders than those securing the Acquired Indebtedness prior to
the incurrence of such Acquired Indebtedness of the Company or a Restricted
Subsidiary of the Company; and
(xiii) Liens not permitted by clauses (i) through (xii) that are
incurred in the ordinary course of business of the Company or any
Restricted Subsidiary of the Company with respect to obligations that do
not exceed $5,000,000 at any one time outstanding.
"Person" means an individual, partnership, corporation, unincorporated
------
organization, trust or joint venture or a governmental agency or political
subdivision thereof.
"Physical Securities" has the meaning provided in Section 2.1.
-------------------
"Preferred Stock" of any Person means any Capital Stock of such Person
---------------
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"Principals" means each officer or employee of the Company and any
----------
spouse, sibling, child or grandchild of the foregoing (in each case, whether
such relationship arises from birth, adoption or through marriage).
"Private Exchange Notes" shall have the meaning provided in the
----------------------
Registration Rights Agreement.
18
"Private Placement Legend" means the legend initially set forth on the
------------------------
Securities in the form set forth in Exhibit A.
---------
"Purchase Money Indebtedness" means Indebtedness of the Company and
---------------------------
its Restricted Subsidiaries incurred in the normal course of business for the
purpose of financing all or any part of the purchase price, or the cost of
installation, construction or improvement, of property or equipment.
"Qualified Capital Stock" means any Capital Stock that is not
-----------------------
Disqualified Capital Stock.
"Qualified Equity Interest" means any Qualified Capital Stock and all
-------------------------
warrants, options or other rights to acquire Qualified Capital Stock (but
excluding any debt security or Disqualified Capital Stock that is convertible
into or exchangeable for Qualified Capital Stock).
"Qualified Institutional Buyer" or "QIB" shall have the meaning
----------------------------- ---
specified in Rule 144A.
"Record Date" means the record dates specified in the Securities;
-----------
provided, however, that if any such date is a Legal Holiday, the Record Date
- -------- -------
shall be the first day immediately preceding such specified day that is not a
Legal Holiday.
"Redemption Date," when used with respect to any Security to be
---------------
redeemed, means the date fixed for such redemption pursuant to this Indenture
and Paragraph 5 of the Securities.
"Redemption Price," when used with respect to any Security to be
----------------
redeemed, means the price fixed for such redemption pursuant to this Indenture
and Paragraph 5 of the Securities.
"Refinance" means, in respect of any security or Indebtedness, to
---------
refinance, extend, renew, refund, repay, pre-pay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
---------- -----------
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or any
------------------------
Subsidiary Guarantor of Indebtedness incurred in accordance with Section 5.12
(other than pursuant to clause (ii), (iv), (v), (vi), (vii), (viii), or (ix) of
the definition of Permitted Indebtedness), in each case that does not (1) result
in an increase in the aggregate principal amount of Indebtedness of such Person
as of the date of such proposed Refinancing (plus the amount of any premium
required to be paid under the terms of the instrument governing such
Indebtedness and plus the amount of reasonable expenses incurred by the Company
in connection with such Refinancing) or (2) create Indebtedness with (A) a
Weighted Average Life to Maturity that is less than the Weighted Average Life to
Maturity of the Indebtedness being Refinanced or (B) a final maturity earlier
than the final maturity of the Indebtedness being Refinanced; provided that (x)
--------
if such Indebtedness being Refinanced is Indebtedness of
19
the Company or a Subsidiary Guarantor, then such Refinancing Indebtedness shall
be Indebtedness solely of the Company or a Subsidiary Guarantor and (y) if such
Indebtedness being Refinanced is subordinate or junior to the Securities, then
such Refinancing Indebtedness shall be subordinate to the Securities at least to
the same extent and in the same manner as the Indebtedness being Refinanced.
"Registrar" shall have the meaning provided in Section 2.3.
---------
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement dated as of the Issue Date among the Company, the Subsidiary
Guarantors and the Initial Purchasers.
"Regulation S" means Regulation S under the Securities Act.
------------
"Regulation S Global Security" means a permanent global security in
----------------------------
registered form representing the aggregate principal amount of Securities sold
in reliance on Regulation S under the Securities Act.
"Related Party" with respect to any Principal means (A) any
-------------
controlling stockholder or 80% (or more) owned Subsidiary of such Principal or
(B) trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal and/or such other
Persons referred to in the immediately preceding clause (A).
"Replacement Assets" shall have the meaning provided in Section
------------------
5.16(a).
"Representative" means the indenture trustee or other trustee, agent
--------------
or representative in respect of any Designated Senior Indebtedness; provided,
--------
that if, and for so long as, any Designated Senior Indebtedness lacks such a
representative, then the Representative for such Designated Senior Indebtedness
shall at all times constitute the holders of a majority in outstanding principal
amount of such Designated Senior Indebtedness in respect of any Designated
Senior Indebtedness.
"Restricted Security" has the meaning assigned to such term in Rule
-------------------
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
-------- -------
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether any Security constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company that has
---------------------
not been designated by the Board of Directors of the Company, by a Board
Resolution delivered to the Trustee, as an Unrestricted Subsidiary pursuant to
and in compliance with Section 5.18. Any such Designation may be revoked by a
Board Resolution of the Company delivered to the Trustee subject to the
provisions of such Section 5.18.
"Revocation" has the meaning set forth under Section 5.18.
----------
"Rule 144A" means Rule 144A under the Securities Act.
---------
20
"Sale and Leaseback Transaction" means any direct or indirect
------------------------------
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of such Property.
"Securities" means, collectively, (i) the Initial Securities, (ii) the
----------
Private Exchange Notes, if any, and (iii) the Unrestricted Securities, treated
as a single class of securities, as amended or supplemented from time to time in
accordance with the terms hereof, that are issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations of the Commission promulgated thereunder.
"Senior Indebtedness" means the principal of, premium, if any, and
-------------------
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law)
on any Indebtedness of the Company, whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Securities. Without limiting the
generality of the foregoing, "Senior Indebtedness" shall also include the
principal of, premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on, and all other amounts owing in respect
of, (x) all monetary obligations of every nature of the Company under the Bank
Facility, including, without limitation, obligations to pay principal and
interest, reimbursement obligations under letters of credit, fees, expenses and
indemnities, (y) all Interest Swap Obligations and (z) all Currency Swap
Obligations, in each case whether outstanding on the Issue Date or thereafter
incurred. Notwithstanding the foregoing, "Senior Indebtedness" shall not include
(i) any Indebtedness of the Company to a Restricted Subsidiary of the Company,
(ii) Indebtedness to, or guaranteed on behalf of, any shareholder, director,
officer or employee of the Company or any Restricted Subsidiary of the Company
(including, without limitation, amounts owed for compensation), (iii)
Indebtedness to trade creditors and other amounts incurred in connection with
obtaining goods, materials or services, (iv) Indebtedness represented by
Disqualified Capital Stock, (v) any liability for federal, state, local or other
taxes owed or owing by the Company, (vi) Indebtedness incurred in violation of
Section 5.12, (vii) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11, United States Code, is without
recourse to the Company and (viii) any Indebtedness which is, by its express
terms, subordinated in right of payment to any other Indebtedness of the
Company. Notwithstanding anything to the contrary contained herein, no
Indebtedness incurred at any time under the Bank Facility (as such facility is
in existence on the Issue Date) shall be considered subordinate in right of
payment to any other Indebtedness incurred under the Bank Facility (as such
facility is in existence on the Issue Date).
21
"Significant Subsidiary," with respect to any Person, means any
-----------------------
Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the
Exchange Act.
"Subsidiary" with respect to any Person, means (i) any corporation of
----------
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"Subsidiary Guarantor" means (i) each of the Company's Restricted
--------------------
Subsidiaries existing on the Issue Date and (ii) each of the Company's
Restricted Subsidiaries (other than any Foreign Subsidiary, unless the Company
elects to have a Foreign Subsidiary execute a Guarantee) that executes a
supplemental indenture pursuant to Section 5.20.
"Surviving Entity" shall have the meaning provided in Section
----------------
6.1(a)(i).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
---
77aaa-77bbbb), as amended, as in effect on the date this Indenture is qualified
under the TIA, except as otherwise provided in Section 10.3.
"Trust Officer" means any officer of the Trustee assigned by the
-------------
Trustee to administer its corporate trust matters.
"Trustee" means the party named as such in this Indenture until a
-------
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Security(ies)" means one or more Securities that do not
--------------------------
and are not required to bear the Private Placement Legend in the form set forth
in Exhibit A, including, without limitation, the Exchange Notes (as defined in
---------
the Registration Rights Agreement).
"Unrestricted Subsidiary" means any Subsidiary of the Company
-----------------------
designated as such pursuant to and in compliance with Section 5.18 Any such
designation may be revoked by a Board Resolution of the Company delivered to the
Trustee, subject to the provisions of such Section 5.18.
"U.S. Government Obligations" means direct non-callable obligations
---------------------------
of, or non-callable obligations guaranteed by, the United States of America for
the payment of which guarantee or obligation the full faith and credit of the
United States is pledged.
"U.S. Legal Tender" means such coin or currency of the United States
-----------------
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
22
"Weighted Average Life to Maturity" means, when applied to any
---------------------------------
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any
----------------------------------
Restricted Subsidiary of such Person of which all the outstanding voting
securities (other than in the case of a Foreign Subsidiary, directors'
qualifying shares or an immaterial amount of shares required to be owned by
other Persons pursuant to applicable law) are owned by such Person or any Wholly
Owned Restricted Subsidiary of such Person.
Section 1.2. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
--------------------
"indenture security holder" means a Holder.
-------------------------
"indenture to be qualified" means this Indenture.
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee.
----------------- ---------------------
"obligor" on the indenture securities means the Company, any
-------
Subsidiary Guarantor or any other obligor on the Securities or the Guarantees.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
Section 1.3. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
23
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE II.
THE SECURITIES
Section 2.1. Form and Dating.
The Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A. The Securities may have
---------
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company and the Trustee shall approve the form of the Securities and
any notation, legend or endorsement on them. Each Security shall be dated the
date of its authentication.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
Securities offered and sold in reliance on Rule 144A, Securities
transferred after the initial resale thereof to institutional "accredited
investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) and Securities offered and sold in reliance on Regulation S shall be issued
initially in the form of one or more permanent Global Securities in registered
form, substantially in the form set forth in Exhibit A, deposited with the
---------
Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided and shall bear the legend
set forth in Exhibit B. The aggregate principal amount of the Global Securities
---------
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository, as hereinafter
provided.
Securities issued in exchange for interests in a Global Security
pursuant to Section 2.16 may be issued and Securities offered and sold in
reliance on any other exemption from registration under the Securities Act other
than as described in the preceding paragraph shall be issued in the form of
permanent certificated Securities in registered form in substantially the form
set forth in Exhibit A (the "Physical Securities").
--------- -------------------
All Securities offered and sold in reliance on Regulation S shall
remain in the form of a Global Security until the consummation of the Exchange
Offer pursuant to the Registration Rights Agreement; provided, however, that all
-------- -------
of the time periods specified in the
24
Registration Rights Agreement to be complied with by the Company and the
Subsidiary Guarantors have been so complied with.
Section 2.2. Execution and Authentication.
One Officer of the Company, whom shall have been duly authorized
by all requisite corporate actions, shall sign the Securities for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Security was an Officer at
the time of such execution but no longer holds that office or position at the
time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate (i) the Initial Securities for
original issue in the aggregate principal amount not to exceed $300.0 million,
including $200.0 million in aggregate principal amount of Securities being
issued on the Issue Date, (ii) the Private Exchange Notes from time to time for
issue only in exchange for a like principal amount of the Initial Securities and
(iii) Unrestricted Securities from time to time only (A) in exchange for a like
principal amount of the Initial Securities or (B) in an aggregate principal
amount of not more than the excess of $300.0 million over the sum of the
aggregate principal amount of (x) the Initial Securities than outstanding, (y)
the Private Exchange Notes then outstanding and (z) the Unrestricted Securities
issued in accordance with (iii)(A) above, in each case upon a written order of
the Company in the form of an Officers' Certificate. The Officers' Certificate
shall specify the amount of Securities to be authenticated and the date on which
the Securities are to be authenticated, whether the Securities are to be the
Initial Securities, Private Exchange Notes or Unrestricted Securities and
whether the Securities are to be issued as Physical Securities or Global
Securities or such other information as the Trustee may reasonably request. The
aggregate principal amount of Securities outstanding at any time may not exceed
$300.0 million (or such lesser amount as is requested authenticated by the
Trustee and issued by the Company on the Issue Date), except as provided in
Section 2.7. Such Securities shall be in the form of one or more Global
Securities, which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the outstanding Securities, (ii)
shall be registered in the name of the Depository for such Global Security or
Securities or its nominee, (iii) shall be delivered by the Trustee to the
Depository or pursuant to the Depository's instruction and (iv) shall bear a
legend substantially to the following effect:
"Unless and until this Global Security is exchanged in whole or in
part for the individual Securities represented hereby, this Global
Security may not be transferred except as a whole by the Depository to
a nominee of the Depository or by a nominee of the Depository to the
Depository or by a Depository or any such nominee to a successor
Depository or a nominee of a successor Depository."
25
In the event that the Company shall issue and the Trustee shall
authenticate any Securities issued under this Indenture subsequent to the Issue
Date pursuant to clauses (i) and (iii) of the first sentence of the immediately
preceding paragraph, the Company shall use its reasonable efforts to obtain the
same "CUSIP" number for such Securities as is printed on the Securities
outstanding at such time; provided, however, that if any series of Securities
-------- -------
issued under this Indenture subsequent to the Issue Date is determined, pursuant
to an Opinion of Counsel of the Company in a form reasonably satisfactory to the
Trustee to be a different class of security than the Securities outstanding at
such time for federal income tax purposes, the Company may obtain a "CUSIP"
number for such Securities that is different than the "CUSIP" number printed on
the Securities then outstanding. Notwithstanding the foregoing, all Securities
issued under this Indenture shall vote and consent together on all matters as
one class and no series of Securities will have the right to vote or consent as
a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise provided
in the appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof.
Section 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
---------
Securities may be presented or surrendered for payment ("Paying Agent") and (c)
------------
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The office or agency in respect of clauses (a) and (b)
shall be the Trustee, c/o The Depository Trust Company, 55 Water Street, New
York, New York 10041, Attn: Corporate Trust Services), and the office or agency
in respect of clause (c) shall be the Trustee, c/o The Depository Trust Company,
55 Water Street, New York, New York 10041, Attn: Corporate Trust
Administration), unless in either case the Company shall designate and maintain
some other office or agency for one or more of such purposes. The Company may
also from time to time designate one or more other offices or agencies where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
-------- -------
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Company may act as its own Registrar or
Paying Agent except that for the purposes of Articles Three and Nine and
Sections 5.15 and 5.16, neither the Company nor any Affiliate of the Company
shall act as Paying Agent. The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company, upon notice to the
Trustee, may have one or more co-Registrars and one or more additional paying
agents reasonably acceptable to the
26
Trustee. The term "Paying Agent" includes any additional paying agent. The
Company initially appoints the Trustee as Registrar and Paying Agent until such
time as the Trustee has resigned or a successor has been appointed.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee, in advance, of the name and address of any such Agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such.
Section 2.4. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that, subject to Article Four and Article Twelve, each
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
assets held by the Paying Agent for the payment of principal of, or interest on,
the Securities (whether such assets have been distributed to it by the Company
or any other obligor on the Securities), and shall notify the Trustee of any
Default by the Company (or any other obligor on the Securities) in making any
such payment. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate such assets and hold them as a separate trust fund, subject to Article
Four and Article Twelve. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent shall have no
further liability for such assets.
Section 2.5. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee on or before each Interest Payment Date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders, which list
may be conclusively relied upon by the Trustee.
Section 2.6. Transfer and Exchange.
(a) Subject to Sections 2.16 and 2.17, when Securities are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities of other authorized denominations, the Registrar
or co-Registrar shall register the transfer or make the exchange as requested if
its requirements for such transaction are met; provided, however, that the
-------- -------
Securities surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar or co-Registrar, duly executed by the Holder thereof
or his or her attorney duly authorized in writing.
27
To permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Securities at the Registrar's or co-
Registrar's request. No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchanges or transfers pursuant to Sections 2.2, 2.7, 2.10, 3.7,
5.15, 5.16 or 10.5). The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of any Security (i) during a period
beginning at the opening of business 15 days before the mailing of a notice of
redemption of Securities and ending at the close of business on the day of such
mailing and (ii) selected for redemption in whole or in part pursuant to Article
Three, except the unredeemed portion of any Security being redeemed in part. A
Global Security may be transferred, in whole but not in part, in the manner
provided in this Section 2.6(a), only to a nominee of the Depository for such
Global Security, or to the Depository, or a successor Depository for such Global
Security selected or approved by the Company, or to a nominee of such successor
Depository.
(b) If at any time the Depository for the Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or Securities or the Company becomes aware
that the Depository has ceased to be a clearing agency registered under the
Exchange Act, the Company shall appoint a successor Depository with respect to
such Global Security or Securities. If a successor Depository for such Global
Security or Securities has not been appointed within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company shall
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of Securities, shall authenticate and deliver,
Securities in definitive form, in an aggregate principal amount at maturity
equal to the principal amount at maturity of the Global Security representing
such Securities, in exchange for such Global Security. The Company shall
reimburse the Registrar, the Depository and the Trustee for expenses they incur
in documenting such exchanges and issuances of Securities in definitive form.
The Company may at any time and in its sole discretion determine that
the Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a written order for the authentication and delivery of individual
Securities in exchange in whole or in part for such Global Security or
Securities, will authenticate and deliver individual Securities in definitive
form in an aggregate principal amount equal to the principal amount of such
Global Security or Securities in exchange for such Global Security or
Securities.
In any exchange provided for in any of the preceding two paragraphs,
the Company will execute and the Trustee will authenticate and deliver
individual Securities in definitive registered form in authorized denominations.
Upon the exchange of a Global Security for individual Securities, such Global
Security shall be canceled by the Trustee. Securities issued in exchange for a
Global Security pursuant to this Section 2.6(b) shall be registered in such
names and in such authorized denominations as the Depository for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise,
28
shall instruct the Trustee. The Trustee shall deliver such Securities to the
persons in whose names such Securities are so registered.
None of the Company, the Trustee, any Paying Agent or the
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 2.7. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Security is replaced. The Company may charge such Holder for its
reasonable out-of-pocket expenses in replacing a Security pursuant to this
Section 2.7, including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the
Company.
Section 2.8. Outstanding Securities.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because the Company or
any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.7 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or a Subsidiary) holds U.S. Legal Tender or U.S.
Government Obligations sufficient to pay all of the principal and interest due
on the Securities payable on that date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue unless,
pursuant to the provisions of Article Four and Article Twelve, the Paying Agent
is unable to make payments on the Securities to the Holders thereof.
Section 2.9. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the
29
Company or any of its Affiliates shall be disregarded, except that, for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities that the Trustee knows or has
reason to know are so owned shall be disregarded.
Section 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities. Notwithstanding the foregoing,
so long as the Securities are represented by a Global Security, such Global
Security may be in typewritten form.
Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or a Subsidiary), and no one else, shall cancel and, at
the written direction of the Company, shall dispose of all Securities
surrendered for transfer, exchange, payment or cancellation. Subject to Section
2.7, the Company may not issue new Securities to replace Securities that it has
paid or delivered to the Trustee for cancellation. If the Company shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation pursuant to this
Section 2.11.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the
Securities, it shall, unless the Trustee fixes another record date pursuant to
Section 7.10, pay the defaulted interest, plus (to the extent lawful) any
interest payable on the defaulted interest, to the persons who are Holders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before the subsequent special record date, the Company shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
Section 2.13. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number,
and if so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience
30
to Holders; provided, however, that any such notice may state that no
-------- -------
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities.
Section 2.14. Deposit of Monies.
Prior to 11:00 a.m. New York City time on each Interest Payment
Date, Maturity Date, Redemption Date, Change of Control Payment Date and Net
Proceeds Offer Payment Date, the Company shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date, Maturity Date, Redemption Date, Change
of Control Payment Date and Net Proceeds Offer Payment Date, as the case may be,
in a timely manner which permits the Paying Agent to remit payment to the
Holders on such Interest Payment Date, Maturity Date, Redemption Date, Change of
Control Payment Date and Net Proceeds Offer Payment Date, as the case may be.
Section 2.15. Restrictive Legends.
Each Global Security and Physical Security that constitutes a
Restricted Security shall bear the legend (the "Private Placement Legend") as
------------------------
set forth in Exhibit A until after the second anniversary of the later of the
---------
Issue Date and the last date on which the Company or any Affiliate of the
Company was the owner of such Security (or any predecessor security) (or such
shorter period of time as permitted by Rule 144(k) under the Securities Act or
any successor provision thereunder) (or such longer period of time as may be
required under the Securities Act or applicable state securities laws in the
opinion of counsel for the Company, unless otherwise agreed by the Company and
the Holder thereof).
Each Global Security shall also bear the legend as set forth in
Exhibit B.
- ---------
Section 2.16. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear the legend as set
forth in Exhibit B.
---------
Members of, or participants in, the Depository ("Agent Members")
-------------
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Securities, and the Depository may be treated by the Company,
the Trustee and any Agent of the Company or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any Agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Security.
(b) Transfers of a Global Security shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of
31
beneficial owners in a Global Security may be transferred or exchanged for
Physical Securities in accordance with the rules and procedures of the
Depository and the provisions of Section 2.17. In addition, Physical Securities
shall be transferred to all beneficial owners in exchange for their beneficial
interests in a Global Security if (i) the Depository notifies the Company that
it is unwilling or unable to continue as the Depository for the Global
Securities and a successor depository is not appointed by the Company within 90
days of such notice or (ii) an Event of Default has occurred and is continuing
and the Registrar has received a written request from the Depository to issue
Physical Securities.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in a Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute and the Trustee shall authenticate and deliver, one or
more Physical Securities of like tenor and amount.
(d) In connection with the transfer of an entire Global Security
to beneficial owners pursuant to paragraph (b) of this Section 2.16, such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in exchange for its
beneficial interest in the Global Security, an equal aggregate principal amount
of Physical Securities of authorized denominations.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to paragraph
(b) or (c) of this Section 2.16 shall, except as otherwise provided by
paragraphs (a)(i)(x) and (c) of Section 2.17, bear the Private Placement Legend.
(f) The Holder of a Global Security may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
Section 2.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
-----------------------------------------------------------
Non-U.S. Persons. The following provisions shall apply with respect to the
- ----------------
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears the
Private Placement Legend, if (x) the requested transfer is after the second
anniversary of the Issue Date (provided, however, that neither the Company
-------- -------
nor any Affiliate of the Company has held any beneficial interest in such
Security, or portion thereof, at any time on or prior to the second
anniversary of the Issue Date) or (y) (1) in the case of a transfer to an
32
Institutional Accredited Investor which is not a QIB (excluding Non-U.S.
Persons), the proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit C hereto or (2) in the
---------
case of a transfer to a Non-U.S. Person, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
Exhibit D hereto;
---------
(ii) if the proposed transferee is an Agent Member and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the IAI Global Security or
Regulation S Global Security, as the case may be, upon receipt by the
Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above, the
Registrar shall register the transfer and reflect on its books and records
the date and an increase in the principal amount of the IAI Global Security
or Regulation S Global Security, as the case may be, in an amount equal to
the principal amount of Physical Securities to be transferred, and the
Trustee shall cancel the Physical Securities so transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Security, upon receipt by the Registrar of
(x) written instructions given in accordance with the Depository's and the
Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, the Registrar shall register
the transfer and reflect on its books and records the date and (A) a
decrease in the principal amount of the Global Security from which such
interests are to be transferred in an amount equal to the principal amount
of the Securities to be transferred and (B) an increase in the principal
amount of the IAI Global Security or the Regulation S Global Security, as
the case may be, in an amount equal to the principal amount of the
Securities to be transferred.
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer of any Restricted
Security if such transfer is being made by a proposed transferor who has
checked the box provided for on the form of the Security stating, or has
otherwise advised the Company and the Registrar in writing, that the sale
has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of the
Security stating, or has otherwise advised the Company and the Registrar in
writing, that it is purchasing the Security for its own account or an
account with respect to which it exercises sole investment discretion and
that it and any such account is a QIB within the meaning of Rule 144A, and
is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as
it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;
33
(ii) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in a Global Security, upon
receipt by the Registrar of written instructions given in accordance with
the Depository's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the principal
amount of such Global Security in an amount equal to the principal amount
of the Physical Securities to be transferred, and the Trustee shall cancel
the Physical Securities so transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in the IAI Global Security or the Regulation S Global
Security, upon receipt by the Registrar of written instructions given in
accordance with the Depository's and the Registrar's procedures, the
Registrar shall register the transfer and reflect on its books and records
the date and (A) a decrease in the principal amount of the IAI Global
Security or the Regulation S Global Security, as the case may be, in an
amount equal to the principal amount of the Securities to be transferred
and (B) an increase in the principal amount of the Global Security in an
amount equal to the principal amount of the Securities to be transferred.
(c) Restrictions on Transfer and Exchange of Global Securities.
----------------------------------------------------------
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or any such
nominee to a successor Depository or a nominee of such successor Depository.
(d) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of the Securities not bearing the Private Placement Legend, the
Registrar shall deliver the Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of the Securities bearing
the Private Placement Legend, the Registrar shall deliver only the Securities
that bear the Private Placement Legend unless (i) the requested transfer is
after the second anniversary of the Issue Date (provided, however, that neither
-------- -------
the Company nor any Affiliate of the Company has held any beneficial interest in
such Security, or portion thereof, at any time prior to or on the second
anniversary of the Issue Date), or (ii) there is delivered to the Registrar an
Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.
(e) General. By its acceptance of any Security bearing the Private
-------
Placement Legend, each Holder of such Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.16 or this Section 2.17.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written
34
communications at any reasonable time during the Registrar's normal business
hours upon the giving of reasonable written notice to the Registrar.
(f) Transfers of Securities Held by Affiliates. Any certificate (i)
------------------------------------------
evidencing a Security that has been transferred to an Affiliate of the Company
within two years after the Issue Date, as evidenced by a notation on the
Assignment Form for such transfer or in the representation letter delivered in
respect thereof or (ii) evidencing a Security that has been acquired from an
Affiliate of the Company (other than by an Affiliate of the Company) in a
transaction or a chain of transactions not involving any public offering, shall,
until two years after the last date on which the Company or any Affiliate of the
Company was an owner of such Security, in each case, bear the Private Placement
Legend, unless otherwise agreed by the Company (with written notice thereof to
the Trustee).
Section 2.18. Additional Interest Under Registration Rights Agreement.
Under certain circumstances, the Company shall be obligated to
pay, as liquidated damages, additional interest to the Holders, all as set forth
in Section 4 of the Registration Rights Agreement. The terms thereof are hereby
incorporated herein by reference.
ARTICLE III.
REDEMPTION
Section 3.1. Notices to Trustee.
If the Company elects to redeem Securities pursuant to Paragraph
5 of the Securities, it shall notify the Trustee, with a copy to the Bank
Facility Agent, of the Redemption Date and the principal amount of Securities to
be redeemed and whether it wants the Trustee to give notice of redemption to the
Holders at least 45 days (unless a shorter notice shall be satisfactory to the
Trustee) but not more than 60 days before the Redemption Date. Any such notice
may be canceled at any time prior to notice of such redemption being mailed to
any Holder and shall thereby be void and of no effect.
Section 3.2. Selection of Securities To Be Redeemed.
If fewer than all of the Securities are to be redeemed at any
time, the Trustee shall select the Securities to be redeemed in compliance with
the requirements of the principal national securities exchange, if any, on which
such Securities are listed or, if such Securities are not then listed on a
national securities exchange, on a pro rata basis, by lot or by such method as
--- ----
the Trustee shall deem fair and appropriate; provided, however, that no
-------- -------
Securities of a principal amount of $1,000 or less shall be redeemed in part;
provided, further; that any partial redemption pursuant to Paragraph 5 of the
- -------- -------
Securities with the proceeds of a Public Equity Offering shall be made on a pro
rata basis or on as nearly a pro rata basis as is practicable (subject to the
Depository's procedures), unless such method is otherwise prohibited.
35
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 may be redeemed only in whole.
The Trustee may select for redemption portions (equal to $1,000 or integral
multiples thereof) of the principal amount of Securities that have denominations
larger than $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption.
Section 3.3. Optional Redemption.
(a) On or after May 15, 2003, the Securities may be redeemed in
whole at any time or in part from time to time, at the option of the Company,
upon not less than 30 nor more than 60 days notice, at a redemption price equal
to the applicable percentage of the principal amount thereof set forth below,
together with accrued and unpaid interest (if any) to the Redemption Date, if
redeemed during the twelve-month period commencing on May 15 of the year set
forth below:
Redemption
Year Price
2003.................. 104.500%
2004.................. 103.000%
2005.................. 101.500%
2006 and thereafter... 100.000%
(b) Optional Redemption upon Equity Offerings. At any time, or
from time to time, on or prior to May 15, 2001, the Company may, at its option,
use the net cash proceeds of one or more Equity Offerings (as defined below) to
redeem the Securities at a Redemption Price equal to 109% of the principal
amount thereof plus accrued and unpaid interest thereon, if any, to the
Redemption Date; provided, that at least 65% of the principal amount of the
--------
Securities originally issued remains outstanding immediately after any such
redemption. In order to effect the foregoing redemption with the proceeds of
any Equity Offering, the Company shall make such redemption not more than 120
days after the consummation of any such Equity Offering.
Section 3.4. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first class mail to each
Holder whose Securities are to be redeemed at such Holder's registered address,
with a copy to the Trustee and the Bank Facility Agent. In order to effect a
redemption pursuant to Paragraph 5 of the Securities with the proceeds of an
Equity Offering, the Company shall send the redemption notice not later than 120
days after the consummation of such Equity Offering. At the Company's request,
the Trustee shall give the notice of redemption in the Company's name and at the
Company's expense. Each notice for redemption shall identify the Securities to
be redeemed and shall state:
36
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(5) that, unless (a) the Company defaults in making the redemption
payment on the Redemption Date or (b) such redemption payment is prohibited
pursuant to Article Four or Article Twelve hereof or otherwise, interest on
Securities called for redemption ceases to accrue on and after the Redemption
Date, and the only remaining right of the Holders of such Securities is to
receive payment of the Redemption Price upon surrender to the Paying Agent of
the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the Redemption
Date, and upon surrender of such Security, a new Security or Securities in
aggregate principal amount equal to the unredeemed portion thereof will be
issued; and
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed,
as well as the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding after such partial
redemption.
Section 3.5. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.4, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender to the Trustee or Paying Agent,
such Securities called for redemption shall be paid at the Redemption Price
unless prohibited pursuant to Article Four or Article Twelve or otherwise
pursuant to this Indenture. Securities that are redeemed by the Company or that
are purchased by the Company pursuant to a Net Proceeds Offer as described in
Section 5.16 or pursuant to a Change of Control Offer as described in Section
5.15 or that are otherwise acquired by the Company will be surrendered to the
Trustee for cancellation.
Section 3.6. Deposit of Redemption Price.
On or before 11:00 a.m. New York City time on the Redemption Date,
the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Redemption Price of all Securities to be redeemed on that date (other
than Securities or portions thereof called for redemption on that date which
have been delivered by the Company to the Trustee for cancellation). The Paying
Agent shall promptly return to the Company any U.S. Legal Tender so deposited
which is not required for that purpose upon the written request
37
of the Company, except with respect to monies owed as obligations to the Trustee
pursuant to Article Eight and Article Twelve hereof.
If the Company complies with the preceding paragraph and payment
of the Securities called for redemption is not prohibited under Article Four or
Article Twelve or otherwise, then, unless the Company defaults in the payment of
such Redemption Price, interest on the Securities or portions thereof to be
redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Securities are presented for payment.
Section 3.7. Securities Redeemed in Part.
Upon surrender and cancellation of a Security that is to be
redeemed in part, the Trustee shall authenticate for the Holder a new Security
or Securities equal in principal amount to the unredeemed portion of the
Security surrendered and canceled.
ARTICLE IV.
SUBORDINATION
Section 4.1. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder of the
Securities, by its acceptance thereof, likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article Four; and
each Person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that the payment of all
Obligations on the Securities by the Company shall, to the extent and in the
manner herein set forth, be subordinated and junior in right of payment to the
prior payment in full in cash or Cash Equivalents of all Obligations on Senior
Indebtedness, including, without limitation, the Company's obligations under the
Bank Facility; that the subordination is for the benefit of, and shall be
enforceable directly by, the holders of Senior Indebtedness, and that each
holder of Senior Indebtedness whether now outstanding or hereafter created,
incurred, assumed or guaranteed shall be deemed to have acquired Senior
Indebtedness in reliance upon the covenants and provisions contained in this
Indenture and the Securities.
Section 4.2. Suspension of Payment When Senior Indebtedness in Default.
(a) If any default occurs and is continuing in the payment when
due, whether at maturity, upon any redemption, by declaration or otherwise, of
any principal or, interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Senior Indebtedness,
no payment of any kind or character shall be made by or on behalf of the Company
or any other Person on its or their behalf with respect to any Obligations on
the Securities or to acquire any of the Securities for cash or property or
otherwise. In addition, if any other event of default occurs and is continuing
with respect to any Designated Senior Indebtedness, as such event of default is
defined in the instrument creating or evidencing such Designated Senior
Indebtedness, permitting the holders of such Designated Senior Indebtedness then
outstanding to accelerate the maturity thereof and if the
38
Representative for the respective issue of Designated Senior Indebtedness gives
notice of the event of default to the Trustee (a "Default Notice") then, unless
--------------
and until all events of default with respect to such Designated Senior
Indebtedness have been cured (if capable of being cured) or waived in writing or
have ceased to exist or the Trustee receives notice thereof from the
Representative for the respective issue of Designated Senior Indebtedness
terminating the Blockage Period (as defined below), during the 179 days after
the delivery of such Default Notice (the "Blockage Period"), neither the Company
---------------
nor any other Person on its behalf shall (x) make any payment of any kind or
character with respect to any Obligations on the Securities or (y) acquire any
of the Securities for cash or property or otherwise. Notwithstanding anything
herein to the contrary, in no event will a Blockage Period extend beyond 179
days from the date the payment on the Securities was due and only one such
Blockage Period may be commenced within any 360 consecutive days. No event of
default which existed or was continuing on the date of the commencement of any
Blockage Period with respect to the Designated Senior Indebtedness shall be, or
be made, the basis for commencement of a second Blockage Period by the
Representative of such Designated Senior Indebtedness whether or not within a
period of 360 consecutive days, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Blockage Period that, in either case, would give rise to an event of default
pursuant to any provisions under which an event of default previously existed or
was continuing shall constitute a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by this Section 4.2, such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness (pro rata
to such holders on the basis of the respective amount of Senior Indebtedness
held by such holders) or their respective Representatives, as their respective
interests may appear. The Trustee shall be entitled to rely on information
regarding amounts then due and owing on the Senior Indebtedness, if any,
received from the holders of Senior Indebtedness (or their Representatives) or,
if such information is not received from such holders or their Representatives,
from the Company and only amounts included in the information provided to the
Trustee shall be paid to the holders of Senior Indebtedness.
Nothing contained in this Article Four shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Section 7.2 or to pursue any rights or
remedies hereunder; provided , however, that so long as any Indebtedness
-------- -------
permitted to be incurred under this Indenture pursuant to the Bank Facility
shall be outstanding, no such acceleration shall be effective until the earlier
of (i) acceleration of any such Indebtedness under the Bank Facility or (ii)
five business days after giving notice to the Representative under the Bank
Facility of such acceleration, and all Senior Indebtedness thereafter due or
declared to be due shall first be paid in full in cash or Cash Equivalents
before the Holders are entitled to receive any payment of any kind or character
with respect to Obligations on the Securities.
39
Section 4.3. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of
Company.
(a) Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors or marshaling of assets of the Company or in a
bankruptcy, reorganization, insolvency, receivership or other similar proceeding
relating to the Company or its property, whether voluntary or involuntary, all
Obligations due or to become due upon all Senior Indebtedness shall first be
paid in full in cash or Cash Equivalents, or such payment duly provided for to
the satisfaction of the holders of Senior Indebtedness, before any payment or
distribution of any kind or character is made on account of any Obligations on
the Securities, or for the acquisition of any of the Securities for cash or
property or otherwise. Upon any such dissolution, winding-up, liquidation,
reorganization, receivership or similar proceeding, any payment or distribution
of assets of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid by
the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders or
by the Trustee under this Indenture if received by them, directly to the holders
of Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders) or their respective
Representatives, or to the trustee or trustee under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in full in
cash or Cash Equivalents after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of Senior Indebtedness.
(b) To the extent any payment of Senior Indebtedness (whether by
or on behalf of the Company, as proceeds of security or enforcement of any right
of setoff or otherwise) is declared to be fraudulent or preferential, set aside
or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then, if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, the Senior Indebtedness or part thereof
originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, shall be received by any Holder when such payment
or distribution is prohibited by this Section 4.3, such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Indebtedness (pro rata to such holders on the basis of
the respective amount of Senior Indebtedness held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of Senior
Indebtedness remaining unpaid until all such
40
Senior Indebtedness has been paid in full in cash or Cash Equivalents, after
giving effect to any concurrent payment, distribution or provision therefor to
or for the holders of such Senior Indebtedness.
(d) The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in
Article Six hereof and as long as permitted under the terms of the Senior
Indebtedness shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 4.3 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, assume
the Company's obligations hereunder in accordance with Article Six hereof.
Section 4.4. Holders To Be Subrogated to Rights of Holders of Senior
Indebtedness.
(a) Subject to the payment in full in cash or Cash Equivalents of
all Senior Indebtedness, the Holders of the Securities shall be subrogated to
the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Indebtedness until the Securities shall be paid in full; and, for the
purposes of such subrogation, no such payments or distributions to the holders
of the Senior Indebtedness by or on behalf of the Company or by or on behalf of
the Holders by virtue of this Article Four which otherwise would have been made
to the Holders shall, as between the Company and the Holders of the Securities,
be deemed to be a payment by the Company to or on account of the Senior
Indebtedness, it being understood that the provisions of this Article Four are
and are intended solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
(b) Each Holder by purchasing or accepting a Security waives any
and all notice of the creation, modification, renewal, extension or accrual of
any Senior Indebtedness and notice of or proof of reliance by any holder or
owner of Senior Indebtedness upon this Article Four and Senior Indebtedness
shall conclusively be deemed to have been created, contracted or incurred in
reliance upon this Article Four, and all dealings between the Company and the
holders and owners of Senior Indebtedness shall be deemed to have been
consummated in reliance upon this Article Four.
Section 4.5. Obligations of the Company Unconditional.
(a) Nothing contained in this Article Four or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights,
41
if any, under this Article Four of the holders of Senior Indebtedness in respect
of cash, property or Securities of the Company received upon the exercise of any
such remedy. Upon any payment or distribution of assets or securities of the
Company referred to in this Article Four, the Trustee, subject to the provisions
of Sections 8.1 and 8.2, and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any
liquidation, dissolution, winding-up or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee or
agent or other Person making any payment or distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Four. Nothing in this Article Four shall apply to the claims of,
or payments to, the Trustee under or pursuant to Section 8.7. The Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of any Senior Indebtedness (or a
trustee on behalf of, or other representative of, such holder) to establish that
such notice has been given by a holder of such Senior Indebtedness or a trustee
or Representative on behalf of any such holder.
(b) In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Four, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Four, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 4.6. Trustee Entitled To Assume Payments Not Prohibited in Absence of
Notice.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities pursuant to the provisions of this
Article Four, but failure to give such notice shall not affect the subordination
of the Securities to all Senior Indebtedness provided in this Article Four and
shall not result in any Default or Event of Default under this Indenture or the
Securities. Regardless of anything to the contrary contained in this Article
Four or elsewhere in this Indenture, the Trustee shall not be charged with
knowledge of the existence of any default or event of default with respect to
any Senior Indebtedness or of any other facts which would prohibit the making of
any payment to or by the Trustee unless and until the Trustee shall have
received notice in writing from the Company, or from a holder of Senior
Indebtedness or a Representative therefor, together, in the case of any holder
of Senior Indebtedness or any Representative therefor other than the Bank
Facility Agent, with proof satisfactory to the Trustee of such holding of Senior
Indebtedness or of the authority of such Representative, and, prior to the
receipt of any such written notice, the Trustee shall be entitled to assume (in
the absence of actual knowledge to the contrary) that no, such fact exist.
Section 4.7. Application by Trustee of Assets Deposited with It.
42
U.S. Legal Tender or U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Sections 9.1 and 9.2 shall
be for the sole benefit of the Holders of the Securities and, to the extent
allocated for the payment of Securities, shall not be subject to the
subordination provisions of this Article Four or Article Twelve. Otherwise, any
deposit of assets or securities by or on behalf of the Company with the Trustee
or any Paying Agent (whether or not in trust) for the payment of principal of or
interest on any Securities shall be subject to the provision of this Article
Four; provided, however, that if prior to the second Business Day preceding the
-------- -------
date on which by the terms of this Indenture any such assets may become
distributable for any purpose (including, without limitation, the payment of
either principal of or interest on any Security) the Trustee or such Paying
Agent shall not have received with respect to such asset the notice provided for
in Section 4.6, then the Trustee or such Paying Agent shall have full power and
authority to receive such assets and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
received by it on or after such date. The foregoing shall not apply to the
Paying Agent if the Company or any Subsidiary or Affiliate of the Company is
acting as Paying Agent. Nothing contained in this Section 4.7 shall limit the
right of the holders of Senior Indebtedness to recover payments as contemplated
by this Article Four.
Section 4.8. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act by any such holder, or by any non-
compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 4.8, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Four or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (1) change
the manner, place, terms or time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding or otherwise amend, renew, exchange, restate,
modify or supplement in any manner Senior Indebtedness or any instrument
evidencing or guaranteeing Senior Indebtedness or securing the same or any
agreement under which Senior Indebtedness is outstanding; (2) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (3) settle or compromise any Senior Indebtedness
or release any Person liable in any manner for the collection or payment of
Senior Indebtedness; and (4) exercise or delay or refrain from exercising any
rights against the Company and any other Person, fail to take or to record or
otherwise perfect, for any reason or for no reason, any lien or security
interest securing Senior Indebtedness, elect any remedy or otherwise deal freely
with the Company.
Section 4.9. Holders Authorize Trustee To Effectuate Subordination of
Securities.
43
Each Holder of the Securities by such Holder's acceptance thereof
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effect the subordination provisions
contained in this Article Four, and appoints the Trustee such Holder's attorney-
in-fact for such purpose, including, in the event of any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of creditors
or marshaling of assets of the Company tending towards liquidation or
reorganization of the business and assets of the Company, the immediate filing
of a claim for the unpaid balance of such Holder's Securities in the form
required in said proceedings and cause said claim to be approved. If the
Trustee does not file a proper claim or proof of debt in the form required in
such proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then any of the holders of the Senior Indebtedness or their
Representative is hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Securities. Nothing herein contained shall be
deemed to authorize the Trustee or the holders of Senior Indebtedness or their
Representative to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee or the holders of Senior Indebtedness or their Representative to
vote in respect of the claim of any Holder in any such proceeding.
Section 4.10. Right of Trustee To Hold Senior Indebtedness.
(a) The Trustee and any agent of the Company or the Trustee shall
be entitled to all the rights set forth in this Article Four with respect to any
Senior Indebtedness which may at any time be held by it in its individual or any
other capacity to the same extent as any other holder of Senior Indebtedness and
nothing in this Indenture shall deprive the Trustee or any such agent of any of
its rights as such holder.
(b) With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Four, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness.
(c) Whenever a distribution is to be made or a notice given to
holders or owners of Senior Indebtedness, the distribution may be made and the
notice may be given to their Representative, if any.
Section 4.11. No Suspension of Remedies.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article Four will
not be construed as preventing the occurrence of an Event of Default.
Except as the effectiveness of acceleration is limited by Section
4.2(b), nothing contained in this Article Four shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Seven or to
44
pursue any rights or remedies hereunder or under applicable law, subject to the
rights, if any, under this Article Four of the holders, from time to time, of
Senior Indebtedness.
Section 4.12. No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and it undertakes to perform or observe such of
its covenants and obligations as are specifically set forth in this Article
Four, and no implied covenants or obligations with respect to the Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be liable to any such holders (other than or its willful misconduct or
gross negligence) if it shall pay over or deliver to the Holders of Securities
or the Company or any other Person money or assets in compliance with the terms
of this Indenture. Nothing in this Section 4.12 shall affect the obligation of
any Person other than the Trustee to hold such payment for the benefit of, and
to pay such payment over to, the holders of Senior Indebtedness or their
Representative.
ARTICLE V.
COVENANTS
Section 5.1. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and this
Indenture. An installment of principal of or interest on the Securities shall be
considered paid on the date it is due if the Trustee or Paying Agent (other than
the Company or a Subsidiary) holds on that date U.S. Legal Tender designated for
and sufficient to pay the installment; provided, however, that U.S. Legal Tender
-------- -------
held by the Trustee for the benefit of holders of Senior Indebtedness or the
payment of which to the Holders is prohibited pursuant to the provisions of
Article Four or Article Twelve or otherwise shall not be considered to be
designated for the payment of any installment of principal or interest on the
Securities within the meaning of this Section 5.1.
The Company shall pay interest on overdue principal at the rate
borne by the Securities and it shall pay interest on overdue installments of
interest at the same rate, to the extent lawful.
Section 5.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City
of New York, the office or agency required under Section 2.3. The Company shall
give prior notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 13.2.
Section 5.3. Limitation on Restricted Payments.
45
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, (i) declare or pay any
dividend or make any distribution (other than dividends or distributions payable
in Qualified Equity Interests of the Company) on or in respect of shares of the
Company's Capital Stock to holders of such Capital Stock, (ii) purchase, redeem
or otherwise acquire or retire for value any Capital Stock of the Company or any
warrants, rights or options to purchase or acquire shares of any class of such
Capital Stock, (iii) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund payment,
any Indebtedness of the Company that is subordinate or junior in right of
payment of the Securities or (iv) make any Investment (other than Permitted
Investments) (each of the foregoing actions set forth in clauses (i), (ii),
(iii) and (iv) being referred to as a "Restricted Payment"), if at the time of
such Restricted Payment or immediately after giving effect thereto, (A) a
Default or an Event of Default shall have occurred and be continuing or (B) the
Company is not able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with Section 5.12 or (C) the
aggregate amount of Restricted Payments (including such proposed Restricted
Payment) made subsequent to the Issue Date (the amount expended for such
purposes, if other than in cash, being the fair market value of such property as
determined in good faith by the Board of Directors of the Company) shall exceed
the sum of: (w) 50% of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company
earned during the period beginning on the first day of the fiscal quarter
including the Issue Date (the "Reference Date") (treating such period as a
single accounting period), provided, however, that if the Securities achieve an
-------- -------
Investment Grade Rating as of the end of any fiscal quarter, the percentage for
the fiscal quarter after such fiscal quarter (and for any other fiscal quarter
where, on the first day of such fiscal quarter, the Securities shall have an
Investment Grade Rating) will be 100% of Consolidated Net Income during each
fiscal quarter after such fiscal quarter; provided further, however, that if
-------- ------- -------
such Restricted Payment is to be made in reliance upon an additional amount
permitted pursuant to the immediately preceding proviso, the Securities must
have an Investment Grade Rating at the time such Restricted Payment is declared
or, if not declared, made, plus (x) 100% of the aggregate net cash proceeds
received by the Company from any Person (other than a Subsidiary of the Company)
from (i) the issuance and sale subsequent to the Issue Date and on or prior to
the Reference Date of Qualified Equity Interests of the Company (other than
Qualified Equity Interests applied pursuant to clauses (ii)(B) and (iii)(B) of
the next succeeding paragraph) and (ii) Indebtedness or Disqualified Capital
Stock that has been converted into or exchanged for Qualified Equity Interests
together with the aggregate net cash proceeds received by the Company at the
time of such conversion or exchange, plus (y) without duplication of any amounts
included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of
any equity contribution received by the Company from a holder of the Company's
Capital Stock and plus (z) an amount equal to the sum of (1) any net reduction
in Investments made pursuant to this paragraph (a) in any Person resulting from
payments of interest on Indebtedness, dividends, repayments of loans or
advances, or other transfers of assets, in each case to the Company or any
Restricted Subsidiary (except to the extent any such payment is included in the
calculation of Consolidated Net Income) and (2) the consolidated net
Investments, as of the date of Revocation, made by the Company or any of its
Restricted Subsidiaries in any
46
Subsidiary of the Company that had been designated as an Unrestricted Subsidiary
after the Issue Date, upon its redesignation as a Restricted Subsidiary in
accordance with Section 5.18.
(b) Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (i) the payment of any dividend
within 60 days after the date of declaration of such dividend if the dividend
would have been permitted on the date of declaration; (ii) if no Default or
Event of Default shall have occurred and be continuing, the acquisition of any
shares of Capital Stock of the Company, either (A) solely in exchange for
Qualified Equity Interests of the Company or (B) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Company) of Qualified Equity Interests of the Company; (iii) if no
Default or Event of Default shall have occurred and be continuing, the purchase,
redemption, defeasance or other acquisition or retirement for value of any
Indebtedness of the Company that is subordinate or junior in right of payment to
the Securities either (A) solely in exchange for Qualified Equity Interests of
the Company or (B) through the application of net proceeds of (x) a
substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of Qualified Equity Interests of the Company or (y) Refinancing
Indebtedness; (iv) so long as no Default or Event of Default shall have occurred
and be continuing, repurchases by the Company of Common Stock of the Company
from employees of the Company or any of its Subsidiaries or their authorized
representatives upon the death, disability or termination of employment of such
employees, in an aggregate amount not to exceed $2.0 million in any calendar
year; and (v) other Restricted Payments in an aggregate amount not to exceed
$15.0 million. In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date in accordance with clause (C) of the first sentence
of the immediately preceding paragraph, amounts expended pursuant to clauses
(i), (iv) and (v) shall be included in such calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an officers' certificate stating that such
Restricted Payment complies with this Indenture and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's latest available internal quarterly
financial statements.
Section 5.4. Corporate Existence.
Except as otherwise permitted by Article Six, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the rights (charter and statutory) and
franchises of the Company; provided, however, that the Company shall not be
-------- -------
required to preserve, with respect to itself, any right or franchise, if the
Board of Directors of the Company, as the case may be, shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company.
Section 5.5. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or
47
imposed upon it or any of the Restricted Subsidiaries or properties of it or any
of the Restricted Subsidiaries and (ii) all lawful claims for labor, materials
and supplies that, if unpaid, might by law become a Lien (other than a Permitted
Lien) upon the property of it or any of the Restricted Subsidiaries; provided,
--------
however, that the Company shall not be required to pay or discharge or cause to
- -------
be paid or discharged any such tax, assessment, charge or claim if either (a)
the amount, applicability or validity thereof is being contested in good faith
by appropriate proceedings and an adequate reserve has been established therefor
to the extent required by GAAP or (b) the failure to make such payment or effect
such discharge (together with all other such failures) would not have a material
adverse effect on the financial condition or results or operations of the
Company and the Restricted Subsidiaries taken as a whole.
Section 5.6. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used or useful to the
conduct of its business or the business of any of the Restricted Subsidiaries to
be maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (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 the Restricted Subsidiaries taken as a whole;
provided, however, that nothing in this Section 5.6 shall prevent the Company or
- -------- -------
any Restricted Subsidiary from discontinuing the operation or maintenance of any
of such properties, or disposing of any of them, if such discontinuance or
disposal is either (i) in the ordinary course of business, (ii) in the good
faith judgment of the Board of Directors of the Company or the Restricted
Subsidiary concerned, or of the senior officers of the Company or such
Restricted Subsidiary, as the case may be, desirable in the conduct of the
business of the Company or such Restricted Subsidiary, as the case may be, or
(iii) is otherwise permitted by this Indenture.
(b) The Company shall provide or cause to be provided, for itself
and each of the Restricted Subsidiaries, insurance (including appropriate self-
insurance) against loss or damage of the kinds that, in the reasonable, good
faith opinion of the Company are adequate and appropriate for the conduct of the
business of the Company and the Restricted Subsidiaries in a prudent manner,
with reputable insurers or with the government of the United States of America
or an agency or instrumentality thereof, in such amounts, with such deductibles,
and by such methods as shall be either (i) consistent with past practices of the
Company or the applicable Restricted Subsidiary or (ii) customary, in the
reasonable, good faith opinion of the Company, for corporations similarly
situated in the industry, unless the failure to provide such insurance (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 the Restricted
Subsidiaries, taken as a whole.
Section 5.7. Compliance Certificate; Notice of Default.
48
(a) The Company shall deliver to the Trustee within 120 days
after the end of the Company's fiscal year an Officers' Certificate stating that
a review of its activities and the activities of its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether it has kept, observed, performed and
fulfilled its obligations under this Indenture and further stating, as to each
such Officer signing such certificate, to the best of his or her knowledge the
Company's compliance with all conditions and covenants under this Indenture
without regard to any period of grace or requirement of notice provided under
this Indenture and, if such signers do know of any such non-compliance with any
conditions or covenants, the certificate shall describe such non-compliance and
its status with particularity. The Officers' Certificate shall also notify the
Trustee should the Company elect to change the manner in which it fixes its
fiscal year end.
(b) The Company shall deliver to the Trustee, forthwith upon
becoming aware, and in any event within 5 Business Days after the occurrence, of
(i) any Default or Event of Default or (ii) any event of default in respect of
any Designated Senior Indebtedness, an Officers' Certificate specifying with
particularity such event.
Section 5.8. Compliance with Laws.
The Company shall comply, and shall cause each of the Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except such as are being contested in good faith and by appropriate
proceedings and except for such noncompliances as would not in the aggregate
have a material adverse effect on the financial condition or results of
operations of the Company and the Restricted Subsidiaries taken as a whole.
Section 5.9. SEC Reports.
The Company will deliver to the Trustee within 15 days after the
filing of the same with the Commission, copies of the quarterly and annual
reports and of the information, documents and other reports, if any, which the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act. Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will file with the Commission, to the extent permitted, and provide the Trustee
and Holders with such annual reports and such information, documents and other
reports specified in Sections 13 and 15(d) of the Exchange Act. The Company
will also comply with the other provisions of TIA (S) 314(a).
Section 5.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or
49
forgive the Company from paying all or any portion of the principal of or
interest on the Securities as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 5.11. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each an "Affiliate Transaction"), other than (x) Affiliate Transactions
permitted under paragraph (b) below and (y) Affiliate Transactions on terms that
are no less favorable than those that might reasonably have been obtained in a
comparable transaction at such time on an arm's-length basis from a Person that
is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate
Transactions (and each series of related Affiliate Transactions which are
similar or part of a common plan) involving aggregate payments or other property
with a fair market value in excess of $5.0 million shall be approved by the
Board of Directors of the Company or such Restricted Subsidiary, as the case may
be, such approval to be evidenced by a Board Resolution stating that such Board
of Directors has determined that such transaction complies with the foregoing
provisions. If the Company or any Restricted Subsidiary of the Company enters
into an Affiliate Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market value of more
than $10.0 million, the Company or such Restricted Subsidiary, as the case may
be, shall, prior to the consummation thereof, obtain a favorable opinion as to
the fairness of such transaction or series of related transactions to the
Company or the relevant Restricted Subsidiary, as the case may be, from a
financial point of view, from an Independent Financial Advisor and file the same
with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to
(i) fees and compensation and benefits paid to and indemnity provided on behalf
of officers, directors, employees or consultants of the Company or any
Restricted Subsidiary of the Company as determined in good faith by the
Company's Board of Directors (including, without limitation, any issuance of
securities, grants of cash, securities, stock options or otherwise, pursuant to,
or the funding of, employment arrangements, stock options and stock ownership
plans approved by the Board of Directors of the Company or the Board of
Directors of the relevant Restricted Subsidiary); (ii) transactions exclusively
between or among the Company and any of its Wholly Owned Restricted Subsidiaries
or exclusively between or among such Wholly Owned Restricted Subsidiaries,
provided such transactions are not otherwise prohibited by this Indenture; (iii)
- --------
any agreement as in effect as of the Issue Date or any amendment thereto or any
transaction contemplated thereby (including pursuant to any amendment thereto)
in any replacement agreement thereto so long as such amendment or replacement
agreement is not more disadvantageous to the Holders in any material respect
than the original agreement as in
50
effect on the Issue Date; (iv) loans and advances to officers and employees or
consultants of the Company or any of its Restricted Subsidiaries in the ordinary
course of business not to exceed $1,000,000 at any time outstanding; and (v)
Restricted Payments permitted by this Indenture.
Section 5.12. Limitation on Incurrence of Additional Indebtedness.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "incur) any Indebtedness (other
than Permitted Indebtedness); provided, however, that if no Default or Event of
-----------------
Default shall have occurred and be continuing at the time of or as a consequence
of the incurrence of any such Indebtedness, the Company or any Subsidiary
Guarantor may incur Indebtedness (including, without limitation, Acquired
Indebtedness), if on the date of the incurrence of such Indebtedness, after
giving effect to the incurrence thereof, the Consolidated Fixed Charge Coverage
Ratio of the Company is greater than (i) 2.25 to 1.0 if the date of such
incurrence is on or prior to May 15, 2001 or (ii) 2.50 to 1.0 if the date of
such incurrence is after May 15, 2001.
Section 5.13. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (a) pay dividends or make
any other distributions on or in respect of its Capital Stock; (b) make loans or
advances or to pay any Indebtedness or other obligation owed to the Company or
any other Restricted Subsidiary of the Company; or (c) transfer any of its
property or assets to the Company or any other Restricted Subsidiary of the
Company, except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law; (2) this Indenture; (3) customary non-assignment
provisions of any contract or any lease governing a leasehold interest of any
Restricted Subsidiary of the Company; (4) any instrument governing Acquired
Indebtedness, which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired; (5) agreements (other than the
Bank Facility) existing on the Issue Date to the extent and in the manner such
agreements are in effect on the Issue Date or as amended in a manner that is not
more disadvantageous to the Holders in any material respect than the agreement
existing on the Issue Date; (6) the Bank Facility; provided, however, that,
-------- -------
except during a period when an event of default under the Bank Facility shall
have occurred and be continuing, no such encumbrances or restrictions shall
limit the ability of such Subsidiary to dividend, loan, advance or otherwise
transfer funds to the Company in an amount required to pay when due the
scheduled interest (including Additional Interest) and principal at maturity of
the Securities; (7) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature described in
clause (c) above; (8) contracts for the sale of assets, including, without
limitation, customary restrictions with respect to a Subsidiary pursuant to an
agreement that has been entered into for the sale or disposition of
51
all or substantially all of the Capital Stock or assets of such Subsidiary; (9)
secured Indebtedness otherwise permitted to be incurred pursuant to Section 5.12
and Section 5.14 that limit the right of the debtor to dispose of the assets
securing such Indebtedness; (10) restrictions on cash or other deposits or net
worth imposed by customers under contracts entered into in the ordinary course
of business; (11) any credit facility or similar agreement entered into in
accordance with clause (xv) of the definition of "Permitted Indebtedness";
provided, however, that, except during a period when an event of default under
- -------- -------
such credit facility shall have occurred and be continuing, no such encumbrances
or restrictions shall limit the ability of any Foreign Subsidiary to dividend,
loan, advance or otherwise transfer funds to the Company in an amount required
to pay when due the scheduled interest (including Additional Interest) and
principal at maturity of the Securities; (12) customary provisions in joint
venture agreements; or (13) an agreement governing Indebtedness incurred to
Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement
referred to in clause (2), (4), (5), (6), (7), (8), (9), (10), (11) or (12)
above; provided, however, that the provisions relating to such encumbrance or
-------- -------
restriction contained in any such Refinancing Indebtedness are no less favorable
to the Company in any material respect as determined by the Board of Directors
of the Company in their reasonable and good faith judgment than the provisions
relating to such encumbrance or restriction contained in agreements referred to
in such clause (2), (4), (5), (6), (7), (8), (9), (10), (11) or (12).
Section 5.14. Limitation on Liens.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries whether owned on the
Issue Date or acquired after the Issue Date, or any proceeds therefrom, or
assign or otherwise convey any right to receive income or profits therefrom
unless (i) in the case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Securities or any Guarantee,
the Securities and the Guarantees are secured by a Lien on such property, assets
or proceeds that is senior in priority to such Liens and (ii) in all other
cases, the Securities and the Guarantees are equally and ratably secured, except
for (A) Liens existing as of the Issue Date to the extent and in the manner such
Liens are in effect on the Issue Date; (B) Liens securing Senior Indebtedness
and Liens securing Guarantor Senior Indebtedness; (C) Liens of the Company or a
Wholly Owned Restricted Subsidiary of the Company on assets of any Restricted
Subsidiary of the Company; (D) Liens securing Refinancing Indebtedness incurred
in accordance with the provisions of this Indenture which is incurred to
Refinance any Indebtedness which has been secured by a Lien permitted under this
Indenture; provided, however, that such Liens (i) are no less favorable to the
-------- -------
Holders and are no more favorable to the lienholders with respect to such Liens
than the Liens in respect of the Indebtedness being Refinanced and (ii) do not
extend to or cover any property or assets of the Company or any of its
Restricted Subsidiaries not securing the Indebtedness so Refinanced; (E) Liens
securing Indebtedness incurred in accordance with clause (xv) of the definition
of "Permitted Indebtedness" and (F) Permitted Liens.
Section 5.15. Limitation on Change of Control.
52
(a) Upon the occurrence of a Change of Control, each Holder will have
the right to require that the Company purchase all or a portion of such Holder's
Securities pursuant to the offer described below (the "Change of Control
-----------------
Offer"), at a purchase price equal to 101% of the principal amount thereof plus
accrued interest to the date of purchase (the "Change of Control Offer Price").
(b) No later than 30 days following the date upon which the Change of
Control occurred, the Company must send, by first class mail, a notice to each
Holder, with a copy to the Trustee, which notice shall govern the terms of the
Change of Control Offer. Notice of an event giving rise to a Change of Control
shall be given on the same date and in the same manner to all Holders. Such
notice shall state:
(1) that the Change of Control Offer is being made pursuant to
this Section 5.15 and that all Securities tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later than 60
days from the date such notice is mailed, other than as may be required by law)
(the "Change of Control Payment Date");
------------------------------
(3) that any Security not tendered will continue to accrue
interest if interest is then accruing;
(4) that, unless (i) the Company defaults in making payment
therefor or (ii) such payment is prohibited pursuant to Article Four, any
Security accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased pursuant to
a Change of Control Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the Change of
Control Payment Date;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than two Business Days prior to the Change
of Control Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Securities the
Holder delivered for purchase and a statement that such Holder is withdrawing
his or her election to have such Security purchased;
(7) that Holders whose Securities are purchased only in part will
be issued new Securities equal in principal amount to the unpurchased portions
of the Securities surrendered; provided, that each Security purchased and each
--------
Security issued shall be in an original principal amount of $1,000 or integral
multiples thereof;
53
(8) that each Change of Control Offer is required to remain
open for at least 20 Business Days or such longer period as may be required by
law and until 5:00 p.m. New York City time on the applicable Change of Control
Payment Date; and
(9) the circumstances and relevant facts regarding such
Change of Control.
(c) On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Securities or portions thereof tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the purchase price of all Securities so tendered and
(iii) deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price (and the Trustee shall
promptly authenticate and mail to such Holders new Securities equal in principal
amount to any unpurchased portion of the Securities surrendered; provided, that
--------
each such new Security shall be in the principal amount of $1,000 or integral
multiples thereof) unless such payment is prohibited pursuant to Article Four or
otherwise. The Company will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date. For purposes of this Section 5.15, the Trustee shall act as the Paying
Agent.
(d) Notwithstanding the foregoing, the Company shall not be
required to make a Change of Control Offer, as provided above, if, in connection
with any Change of Control, it had made an offer to purchase (an "Alternate
Offer") any and all Securities validly tendered at a cash price equal to or
higher than the Change of Control Offer Price and has purchased all Securities
properly tendered in accordance with the terms of such Alternate Offer.
(e) The Company must comply with Rule 14e-1 under the Exchange
Act and other provisions of state and federal securities laws or regulations
thereunder to the extent applicable in connection with the repurchase of
Securities pursuant to a Change of Control Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 5.15, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
the provisions of this Section 5.15 by virtue thereof.
Section 5.16. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or
the applicable Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors), (ii) at least 75% of the consideration received
by the Company or the Restricted Subsidiary (excluding liabilities that are not
subordinated to the Securities that have been assumed by a transferee of such
assets to the extent that the applicable agreement releases or indemnifies the
Company or such Restricted
54
Subsidiary from such liabilities), as the case may be, from such Asset Sale
shall be in the form of cash or Cash Equivalents and is received at the time of
such disposition or securities which are converted into cash or Cash Equivalents
within 60 days; and (iii) upon the consummation of an Asset Sale, the Company
shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds
relating to such Asset Sale within 365 days of receipt thereof either (A) to
prepay any Senior Indebtedness and, in the case of any Senior Indebtedness under
any revolving credit facility, including the Bank Facility, effect a permanent
reduction in the availability under such revolving credit facility, (B) to make
an investment in or acquire properties and assets that replace the properties
and assets that were the subject of such Asset Sale or in properties and assets
that will be used (including acquisitions of other businesses) in the business
of the Company and its Restricted Subsidiaries as existing on the Issue Date or
in businesses reasonably related thereto ("Replacement Assets"), or (C) a
combination of prepayment and investment permitted by the foregoing clauses
(iii)(A) and (iii)(B). On the 366th day after an Asset Sale or such earlier
date, if any, as the Board of Directors of the Company or of such Restricted
Subsidiary, as the case may be, determines not to apply the Net Cash Proceeds
relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and
(iii)(C) of the next preceding sentence (each, a "Net Proceeds Offer Trigger
Date"), such aggregate amount of Net Cash Proceeds which have not been applied
on or before such Net Proceeds Offer Trigger Date as permitted in clauses
(iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each a "Net
Proceeds Offer Amount"), shall be applied by the Company or such Restricted
Subsidiary, as the case may be, to make an offer to purchase (the "Net Proceeds
Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor
more than 45 days following the applicable Net Proceeds Offer Trigger Date, from
all Holders on a pro rata basis, that amount of Securities issued under this
--- ----
Indenture equal to the Net Proceeds Offer Amount at a price equal to 100% of the
principal amount of the Securities to be purchased, plus accrued and unpaid
interest thereon, if any, to the date of purchase; provided, however, that if at
-------- -------
any time any non-cash consideration received by the Company or any Restricted
Subsidiary of the Company, as the case may be, in connection with any Asset Sale
is converted into or sold or otherwise disposed of for cash (other than interest
received with respect to any such non-cash consideration), then such conversion
or disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Cash Proceeds thereof shall be applied in accordance with this Section 5.16. The
Company may defer the Net Proceeds Offer until there is an aggregate unutilized
Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from
one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer
Amount, and not just the amount in excess of $10.0 million, shall be applied as
required pursuant to this paragraph); provided, that in no event will the net
--------
cash proceeds from an Asset Sale be subject to more than one Net Proceeds Offer.
(b) In the event of the transfer of substantially all (but not all) of
the property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Section 6.1, the successor
corporation shall be deemed to have sold the properties and assets of the
Company and its Restricted Subsidiaries not so transferred for purposes of this
Section 5.16, and shall comply with the provisions of this Section 5.16 with
respect to such deemed sale as if it were an Asset Sale. In addition, the fair
market value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for
purposes of this Section 5.16.
55
(c) Notwithstanding Sections 5.16(a) and (b), the Company and its
Restricted Subsidiaries will be permitted to consummate an Asset Sale without
complying with such paragraphs to the extent (i) at least 75% of the
consideration for such Asset Sale constitutes Replacement Assets and (ii) such
Asset Sale is for fair market value; provided, that any consideration not
--------
constituting Replacement Assets received by the Company or any of its Restricted
Subsidiaries in connection with any Asset Sale permitted to be consummated under
this paragraph shall constitute Net Cash Proceeds subject to the provisions of
Sections 5.16(a) and (b).
(d) Each Net Proceeds Offer will be mailed to the record Holders as
shown on the register of Holders of such Securities within 25 days following the
Net Proceeds Offer Trigger Date, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Net Proceeds Offer and shall state the
following terms:
(1) that the Net Proceeds Offer is being made pursuant to Section
5.16 of this Indenture and that all Securities tendered will be accepted for
payment; provided, however, that if the aggregate principal amount of Securities
-------- -------
tendered in a Net Proceeds Offer plus accrued interest at the expiration of such
offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall
select the Securities to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Securities in
denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest)
and the Net Proceeds Offer Payment Date;
(3) that any Security not tendered will continue to accrue
interest if interest is then accruing;
(4) that, unless (i) the Company defaults in making payment
therefor or (ii) such payment is prohibited pursuant to Article Four or
otherwise, any Security accepted for payment pursuant to the Net Proceeds Offer
shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Security purchased pursuant to
a Net Proceeds Offer will be required to surrender the Security, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Security
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day prior to the Net Proceeds Offer
Payment Date;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than two Business Days prior to the Net
Proceeds Offer Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Securities the
Holder delivered for purchase and a statement that such Holder is withdrawing
his or her election to have such Security purchased;
56
(7) that Holders whose Securities were purchased only in part
will be issued new securities equal in principal amount to the unpurchased
portion of the Securities surrendered; provided, however, that each Security
-------- -------
purchased and each new Security issued shall be in an original principal amount
of $1,000 or integral multiples thereof; and
(8) that the Net Proceeds Offer shall remain open for a
period of 20 Business Days or such longer period as may be required by law.
(e) On or before the Net Proceeds Offer Payment Date, the Company
shall (i) accept for payment Securities or portions thereof tendered pursuant to
the Net Proceeds Offer which are to be purchased in accordance with item (d)(1)
above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the purchase price of all Securities to be purchased and (iii) deliver to the
Trustee Securities so accepted together with an Officers' Certificate stating
the Securities or portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to the Holders of Securities so accepted payment in an
amount equal to the purchase price (and the Trustee shall promptly authenticate
and mail or deliver to such Holders a new Security equal in principal amount to
any unpurchased portion of the Security surrendered; provided, that each such
--------
new Security shall be in the principal amount of $1,000 or integral multiples
thereof) unless such payment is prohibited pursuant to Article Four or
otherwise. The Company will publicly announce the results of the Net Proceeds
Offer on or as soon as practicable after the Net Proceeds Offer Payment Date.
For purposes of this Section 5.16, the Trustee shall act as the Paying Agent.
(f) Any amounts remaining after the purchase of Securities
pursuant to a Net Proceeds Offer shall be returned by the Trustee to the
Company.
(g) The Company must comply with Rule 14e-1 under the Exchange
Act and other provisions of state and federal securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of Securities pursuant to a Net Proceeds Offer. To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of this Section 5.16, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under the provisions of this Section 5.16 by virtue
thereof.
Section 5.17. Prohibition on Incurrence of Senior Subordinated Debt.
The Company will not incur or suffer to exist Indebtedness that
is senior in right of payment to the Securities and subordinate in right of
payment to any other Indebtedness of the Company. No Subsidiary Guarantor will
incur or suffer to exist Indebtedness that is senior in right of payment to such
Subsidiary Guarantor's Guarantee and subordinate in right of payment to any
other Indebtedness of such Subsidiary Guarantor. Notwithstanding anything to the
contrary contained herein, no Indebtedness incurred at any time under the Bank
Facility (as such facility is in existence on the Issue Date) shall be
considered subordinate in right of payment to any other Indebtedness incurred
under the Bank Facility (as such facility is in existence on the Issue Date).
57
Section 5.18. Limitation on Designations of Unrestricted Subsidiaries.
(a) The Company may designate any Subsidiary of the Company
(other than a Subsidiary of the Company which owns any Capital Stock of, or owns
or holds any Lien on any property of, the Company or any Restricted Subsidiary)
as an "Unrestricted Subsidiary" under this Indenture (a "Designation") only if:
(i) no Default or Event of Default shall have occurred and
be continuing at the time of or after giving effect to such Designation;
(ii) the Company would be permitted under this Indenture to
make an Investment at the time of Designation (assuming the effectiveness
of such Designation) in an amount (the "Designation Amount") equal to the
sum of (i) fair market value of the Capital Stock of such Subsidiary owned
by the Company and the Restricted Subsidiaries on such date and (ii) the
aggregate amount of other Investments of the Company and the Restricted
Subsidiaries in such Subsidiary on such date; and
(iii) the Company would be permitted to incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to
Section 5.12 at the time of Designation (assuming the effectiveness of such
Designation).
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
5.3 for all purposes of this Indenture in the Designation Amount. The Company
shall not, and shall not permit any Restricted Subsidiary to, at any time (x)
provide direct or indirect credit support for or a guarantee of any Indebtedness
of any Unrestricted Subsidiary (including a guarantee of any undertaking,
agreement or instrument evidencing such Indebtedness), (y) be directly or
indirectly liable with respect to any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable with respect to any
Indebtedness which provides that the holder thereof may (upon notice, lapse of
time or both) declare a default thereon or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity upon the occurrence
of a default with respect to any Indebtedness of any Unrestricted Subsidiary
(including any right to take enforcement action against such Unrestricted
Subsidiary), except, in the case of clause (x) or (y), to the extent permitted
under Section 5.3.
(b) The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation"), whereupon such Subsidiary shall then
constitute a Restricted Subsidiary, if:
(i) no Default or Event of Default shall have occurred and
be continuing at the time of and after giving effect to such Revocation;
and
(ii) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation would, if
incurred at such time, have been permitted to be incurred for all purposes
of this Indenture.
58
All Designations and Revocations must be evidenced by Board
Resolution of the Company certifying compliance with the foregoing provisions
which shall be filed with the Trustee.
Section 5.19. Conduct of Business.
The Company and its Restricted Subsidiaries will not engage in
any businesses which are not the same, similar or related or incidental to the
businesses in which the Company and its Restricted Subsidiaries are engaged on
the Issue Date.
Section 5.20. Additional Subsidiary Guarantees.
If the Company or any of its Restricted Subsidiaries transfers or
causes to be transferred, in one transaction or a series of related
transactions, any property to any Restricted Subsidiary (other than a Foreign
Subsidiary, unless the Company elects to have a Foreign Subsidiary issue a
Guarantee) that is not a Subsidiary Guarantor, or if the Company or any of its
Restricted Subsidiaries shall organize, acquire or otherwise invest in a
Restricted Subsidiary (other than a Foreign Subsidiary, unless the Company
elects to have a Foreign Subsidiary issue a Guarantee) having total assets with
a book value in excess of $500,000, then such transferee or acquired or other
Restricted Subsidiary shall (i) promptly execute and deliver to the Trustee a
supplemental indenture in form reasonably satisfactory to the Trustee pursuant
to which such Restricted Subsidiary shall unconditionally guarantee all of the
Company's obligations under the Securities and this Indenture on the terms set
forth in this Indenture and (ii) deliver to the Trustee an Opinion of Counsel
that such supplemental indenture has been duly authorized, executed and
delivered by such Restricted Subsidiary and constitutes a legal, valid, binding
and enforceable obligation of such Restricted Subsidiary. Thereafter, such
Restricted Subsidiary shall be a Subsidiary Guarantor for all purposes of this
Indenture.
ARTICLE VI.
SUCCESSOR CORPORATION
Section 6.1. Limitations on Mergers and Certain Other Transactions.
(a) The Company will not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and the Company's Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless:
(i) either (1) the Company shall be the surviving or
continuing corporation or (2) the Person (if other than the Company) formed
by such consolidation or into which the Company is merged or the Person
which acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of the
59
Company and of the Company's Restricted Subsidiaries substantially as an
entirety (the "Surviving Entity") (x) shall be a corporation organized and
----------------
validly existing under the laws of the United States or any State thereof
or the District of Columbia and (y) shall expressly assume, by supplemental
indenture (in form and substance satisfactory to the Trustee), executed and
delivered to the Trustee, the due and punctual payment of the principal of,
and premium, if any, and interest on all of the Securities and the
performance of every covenant of the Securities, this Indenture and the
Registration Rights Agreement on the part of the Company to be performed or
observed;
(ii) immediately after giving effect to such transaction and
the assumption contemplated by clause (i)(2)(y) above (including giving
effect to any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be,
shall be able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 5.12;
(iii) immediately before and immediately after giving effect to
such transaction and the assumption contemplated by clause (i)(2)(y) above
(including, without limitation, giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred and any Lien
granted in connection with or in respect of the transaction), no Default or
Event of Default shall have occurred or be continuing; and
(iv) the Company or the Surviving Entity shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have
been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of the Company (other than to the Company or
another Restricted Subsidiary) 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.
(c) Each Subsidiary Guarantor (other than any Subsidiary Guarantor
whose Guarantee is to be released in accordance with the terms of the Guarantee
and this Indenture in connection with any transaction complying with the
provisions of Section 5.16) will not, and the Company will not cause or permit
any Subsidiary Guarantor to, consolidate with or merge with or into any Person
other than the Company or any other Subsidiary Guarantor unless the Company
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that: (i) the entity formed by or surviving any such
consolidation or merger (if other than the Subsidiary Guarantor) or to which
such sale, lease, conveyance or
60
other disposition shall have been made is a corporation organized and existing
under the laws of the United States or any State thereof or the District of
Columbia; (ii) such entity, if not already a Subsidiary Guarantor, assumes by
supplemental indenture all of the obligations of the Subsidiary Guarantor under
this Indenture; (iii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and (iv)
immediately after giving effect to such transaction and the use of any net
proceeds therefrom on a pro forma basis, the Company could satisfy the
--- -----
provisions of clause (a)(ii) of this Section 6.1. Any merger or consolidation of
a Subsidiary Guarantor with and into the Company (with the Company being the
Surviving Entity) or another Subsidiary Guarantor that is a Wholly Owned
Restricted Subsidiary of the Company need only comply with clause (a)(iv).
Section 6.2. Successor Corporation Substituted.
Upon any consolidation, combination or merger or any transfer of
all or substantially all of the assets of the Company in accordance with Section
6.1, in which the Company is not the continuing corporation, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and the Securities with the same effect as if such surviving
entity had been named as such.
ARTICLE VII.
DEFAULT AND REMEDIES
Section 7.1. Events of Default.
Each of the following events constitutes an "Event of Default":
(i) the failure to pay interest on any Securities when the
same becomes due and payable and the default continues for a period of 30
days (whether or not such payment shall be prohibited by Article Four or
Article Twelve);
(ii) the failure to pay the principal on any Securities,
when such principal becomes due and payable, at maturity, upon redemption
or otherwise (including the failure to make a payment to purchase
Securities tendered pursuant to a Change of Control Offer or a Net Proceeds
Offer) (whether or not such payment shall be prohibited by Article Four or
Article Twelve);
(iii) a default in the observance or performance of any other
covenant or agreement contained in this Indenture which default continues
for a period of 30 days after the Company receives written notice
specifying the default (and demanding that such default be remedied) from
the Trustee or the Holders of at least 25% of the outstanding principal
amount of the Securities (except in the case of a failure to comply with
Section 6.1, which will constitute an Event of Default with such notice
requirement but without such passage of time requirement);
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(iv) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount
of any Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness if the aggregate principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness in
default for failure to pay principal at final maturity or which has been
accelerated, aggregates $10.0 million or more at any time;
(v) one or more judgments in an aggregate amount in excess of
$10.0 million shall have been rendered against the Company or any of its
Restricted Subsidiaries and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become
final and non-appealable;
(vi) the Company or any of its Significant Subsidiaries pursuant
to or within the meaning of any Bankruptcy Law: (a) commences a voluntary
case or proceeding; (b) consents to the entry of an order for relief
against it in an involuntary case or proceeding; (c) consents to the
appointment of a Custodian of it or for all or substantially all of its
property; (d) makes a general assignment for the benefit of its creditors;
or (e) generally is not paying its debts as they become due;
(vii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (a) is for relief against the Company
or any of its Significant Subsidiaries in an involuntary case or
proceeding; (b) appoints a Custodian of the Company or any of its
Significant Subsidiaries, or for all or any substantial part of their
respective properties; or (c) orders the liquidation of the Company or any
of its Significant Subsidiaries, and in each case the order or decree
remains unstayed and in effect for 60 days;
(viii) any of the Guarantees ceases to be in full force and
effect or any of the Guarantees is declared to be null and void and
unenforceable or any of the Guarantees is found to be invalid or any of the
Subsidiary Guarantors denies in writing its liability under its Guarantee
(other than by reason of release of a Subsidiary Guarantor in accordance
with the terms of this Indenture).
Section 7.2. Acceleration.
(a) Subject to Sections 4.2(b) and 12.2(c), if an Event of Default
(other than an Event of Default specified in clauses (vi) or (vii) of Section
7.1 with respect to the Company) shall occur and be continuing, the Trustee or
the Holders of at least 25% in principal amount of outstanding Securities may
declare the principal of and accrued interest on all the Securities to be due
and payable by notice in writing to the Company and the Trustee specifying the
respective Event of Default and that it is a "notice of acceleration" (the
"Acceleration Notice"), and the same shall become immediately due and payable.
- --------------------
If an Event of Default specified in clauses (vi) or (vii) of Section 7.1 with
respect to the Company occurs and is continuing, then all unpaid principal of,
and premium, if any, and accrued and unpaid
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interest on all of the outstanding Securities shall ipso facto become and be
---- -----
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
(b) At any time after a declaration of acceleration with respect
to the Securities as described in Section 7.2(a), the Holders of a majority in
principal amount of the Securities may rescind and cancel such declaration and
its consequences (i) if the rescission would not conflict with any judgment or
decree, (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (v) in
the event of the cure or waiver of an Event of Default of the type described in
clauses (vi) or (vii) of Section 7.1, the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
(c) The Holders of a majority in principal amount of the
Securities may waive any existing Default or Event of Default under this
Indenture, and its consequences, except a default in the payment of the
principal of or interest on any Securities.
(d) Holders of the Securities may not enforce this Indenture or
the Securities except as provided in this Indenture and under the TIA. Subject
to the provisions of Article Eight, the Trustee is under no obligation to
exercise any of its rights or powers under this Indenture at the request, order
or direction of any of the Holders, unless such Holders have offered to the
Trustee reasonable indemnity. Subject to all provisions of Section 7.5 and
applicable law, the Holders of a majority in aggregate principal amount of the
then outstanding Securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee.
(e) The Company is required to provide an Officers' Certificate to
the Trustee promptly upon any such officer obtaining knowledge of any Default or
Event of Default (provided, that such officers shall provide such certification
--------
at least annually whether or not they know of any Default or Event of Default)
that has occurred and, if applicable, describe such Default or Event of Default
and the status thereof.
Section 7.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default
63
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative to the extent permitted by law.
Section 7.4. Waiver of Past Defaults.
Subject to Sections 7.7 and 10.2, the Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default in the payment of principal of or interest on any Security as specified
in clauses (i) and (ii) of Section 7.1 (other than any such Default arising
solely by reason of acceleration of the Securities). When a Default or Event of
Default is waived, it is cured and ceases.
Section 7.5. Control by Majority.
Subject to Section 2.9, the Holders of a majority in principal
amount of the outstanding Securities 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, including, without limitation, any remedies
provided for in Section 7.3. Subject to Section 8.1, however, the Trustee may
refuse to follow any direction that conflicts with any law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of another
Holder, or that may involve the Trustee in personal liability; provided,
--------
however, that the Trustee may take any other action deemed proper by the Trustee
- -------
which is not inconsistent with such direction.
Section 7.6. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holder or Holders of at least 25% in principal amount of
the outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be
incurred in compliance with such request;
(4) the Trustee does not comply with the request within 25 days
after receipt of the request and the offer of indemnity; and
(5) during such 25-day period the Holder or Holders of a majority
in principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
64
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
Section 7.7. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal of and interest on a Security, on
or after the respective due dates expressed in such Security, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of the Holder.
Section 7.8. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in clause (i) or (ii) of Section 7.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
borne by the Securities and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 7.9. Trustee May File Proofs of Claim.
Subject to Sections 4.9 and 12.9, 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 (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relating to the
Company or any other obligor upon the Securities, any of their respective
creditors or any of their respective property and shall be entitled and
empowered to participate as a member, voting or otherwise, of any official
committee of creditors appointed in such matter and to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 8.7. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder,
or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding. The Trustee may enforce claims on behalf of Holders without
possession of such Holders' Securities.
Section 7.10. Priorities.
65
If the Trustee collects any money pursuant to this Article Seven,
it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 8.7;
Second: subject to Article Four and Article Twelve, to Holders
for interest accrued on the Securities, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities for
interest;
Third: subject to Article Four and Article Twelve, to Holders
for principal amounts due and unpaid on the Securities, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Securities for principal; and
Fourth: subject to Article Four and Article Twelve, to the
Company or the Subsidiary Guarantors, as their respective interests may appear.
The Trustee, upon prior notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 7.10.
Section 7.11. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 7.12. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article Seven or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 7.13. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 7.13 does not
66
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 7.7, or a
suit by a Holder or Holders of more than 10% in principal amount of the
outstanding Securities.
ARTICLE VIII.
TRUSTEE
The Company hereby appoints and employs the Trustee and the
Trustee hereby accepts the express trust imposed upon it by this Indenture and
covenants and agrees to perform the same, subject to the conditions and terms
hereof.
Section 8.1. Duties of Trustee.
(a) If an Event of Default of which a Trust Officer of the Trustee
is actually aware has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture and use the same
degree of care and skill in its exercise thereof as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default of which
the Trust Officer of the Trustee is actually aware:
(1) The Trustee need undertake to perform only those duties as
are expressly and specifically set forth in this Indenture and no covenants or
obligations whatsoever shall be implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon 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, but shall not be obligated
to verify the contents thereof.
(c) The Trustee shall have no liability except for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 8.1.
(2) 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.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 7.5.
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(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 8.1.
(f) The Trustee shall not be liable for interest on any assets
received by it. Assets held in trust by the Trustee need not be segregated from
other assets except to the extent required by law.
Section 8.2. Rights of Trustee.
Subject to Section 8.1:
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper Person, including, without
limitation, any Person purporting to be a holder of Senior Indebtedness or a
Representative. The Trustee need not investigate any fact or matter stated in
the document or the status of any such Person delivering such document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require in addition to the receipt of written
direction(s) from the Company accompanied by an Officers' Certificate or an
Opinion of Counsel, which opinion or certificate shall conform to Sections 13.4
and 13.5 of this Indenture. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or agent
appointed with due care.
(d) The Trustee shall not be liable for any action that it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit; provided, however, that in so doing the Trustee shall not be deemed to
-------- -------
undertake any liability or additional duty hereunder.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the
68
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
Section 8.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 8.10 and 8.11.
Section 8.4. Trustee's Disclaimer.
The Trustee makes no representation or warranty and shall have no
liability whatsoever as to and for the validity or adequacy of this Indenture or
the Securities, it shall not be accountable for the Company's use of the
proceeds from the Securities, and it shall not be responsible for any statement
in the Securities or in any other document used in connection with the sale of
the Securities other than the Trustee's certificate of authentication.
Section 8.5. Notice of Default.
If a Default or an Event of Default occurs and is continuing and
if it is actually known to a Trust Officer of the Trustee, the Trustee shall
mail to each Holder notice of the Default or Event of Default within 90 days
after such Default or Event of Default occurs; provided, however, that, except
-------- -------
in the case of a Default or Event of Default in the payment of the principal of
or interest on any Security, including the failure to make payment on a Change
of Control Payment Date pursuant to a Change of Control Offer or payment when
due pursuant to a Net Proceeds Offer, the Trustee may withhold such notice if it
in good faith determines that withholding such notice is in the interest of the
Holders.
Section 8.6. Reports by Trustee to Holders.
Within 60 days after each April 30 beginning with the first April
30 following the date of this Indenture, the Trustee shall, to the extent that
any of the events described in TIA (S) 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Holder a brief report dated as of
such April 30 that complies with TIA (S) 313(a). The Trustee also shall comply
with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall
be mailed to the Company and filed with the Commission and each stock exchange,
if any, on which the Securities are listed.
The Company shall notify the Trustee in writing if the Securities
become listed on any stock exchange.
Section 8.7. Compensation and Indemnity.
69
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. 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 upon request for all reasonable disbursements, expenses
and advances incurred or made by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it except for such actions to the
extent caused by any negligence or willful misconduct on its part, arising out
of or in connection with the administration of this trust, including the costs
and expenses of enforcing this Indenture against the Company (including Section
8.7) and its rights or duties hereunder. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel; provided, however, that the
-------- -------
Company will not be required to pay such fees and expenses if it assumes the
Trustee's defense and there is no conflict of interest between the Company and
the Trustee in connection with such defense as reasonably determined by the
Trustee. The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld or delayed. The
Company need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
To secure the Company's payment obligations in this Section 8.7,
the Trustee shall have a lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 7.1(vi) or (vii) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 8.8. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of
a majority in principal amount of the outstanding Securities may remove the
Trustee and appoint a successor trustee with the Company's consent, by so
notifying the Company and the Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 8.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
70
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 8.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 8.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 8.8, the Company's obligations under Section 8.7 shall continue for the
benefit of the retiring Trustee.
Section 8.9. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
Section 8.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA (S)(S) 310(a)(1) and 310(a)(5). The Trustee shall have (or
in the case of a corporation trust company included in a bank holding company
system, the related bank holding company shall have) a combined capital and
surplus of at least $100.0 million as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA (S) 310(b);
provided, however, that there shall be excluded from the operation of TIA (S)
- -------- -------
310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
71
Section 8.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE IX.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 9.1. Termination of the Company's Obligations.
The Company may terminate its obligations under the Securities and
this Indenture, and the obligations of any Subsidiary Guarantor shall terminate,
except those obligations referred to in the penultimate paragraph of this
Section 9.1, if
(1) either (a) all Securities theretofore authenticated and
delivered (except lost, stolen or destroyed Securities which have been replaced
or paid or Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 9.4) have been
delivered to the Trustee for cancellation, or (b) all Securities not theretofore
delivered to the Trustee for cancellation have become due and payable and the
Company has irrevocably deposited or caused to be deposited with the Trustee
funds in an amount sufficient to pay and discharge the entire Indebtedness on
the Securities not theretofore delivered to the Trustee for cancellation, for
principal of, premium, if any, and interest on the Securities to the date of
deposit together with irrevocable instructions from the Company directing the
Trustee to apply such funds to the payment thereof at maturity or redemption, as
the case may be;
(2) the Company has paid all other sums payable by it hereunder;
and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of the Company's and any Subsidiary
Guarantor's obligations under the Securities and this Indenture have been
complied with.
Notwithstanding the foregoing paragraph, the Company's obligations
in Sections 2.5, 2.6, 2.7, 2.8, 5.1, 5.2 and 8.7 and any Subsidiary Guarantor's
obligations in respect thereof shall survive until the Securities are no longer
outstanding pursuant to the last paragraph of Section 2.8. After the Securities
are no longer outstanding, the Company's obligations in Sections 8.7, 9.4 and
9.5 any Subsidiary Guarantor's obligations in respect thereof shall survive.
After such delivery or irrevocable deposit the Trustee upon
request shall acknowledge in writing the discharge of the Company's and any
Subsidiary Guarantor's obligations under the Securities and this Indenture
except for those surviving obligations specified above.
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Section 9.2. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option, and at any time, with respect
to the Securities, elect to have either paragraph (b) or paragraph (c) below be
applied to the outstanding Securities upon compliance with the conditions set
forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company and any Subsidiary Guarantor shall
be deemed to have been released and discharged from its obligations with respect
to the outstanding Securities on the date the conditions set forth below are
satisfied (hereinafter, "legal defeasance"). For this purpose, legal defeasance
----------------
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of paragraph (e) below and
the other Sections of and matters under this Indenture referred to in (i) and
(ii) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), and Holders of the Securities and the Guarantees and
any amounts deposited under paragraph (d) below shall cease to be subject to any
obligations to, or the rights of, any holder of Senior Indebtedness under
Article Four or Article Twelve or otherwise, except for the following which
shall survive until otherwise terminated or discharged hereunder: (i) the rights
of Holders to receive payments in respect of the principal of, premium, if any,
and interest on the Securities when such payments are due, (ii) the Company's
obligations with respect to such Securities under Sections 2.6, 2.7, 2.10 and
5.2, (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection therewith and (iv) this
Section 9.2 and Section 9.5. Subject to compliance with this Section 9.2, the
Company may exercise its option under this paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) below with respect to the
Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article Four and Article
Six and in Sections 5.3, 5.5 through 5.9 and 5.11 through 5.20 with respect to
the outstanding Securities on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance"), and the Securities shall
-------------------
thereafter be deemed to be not "outstanding" for the purpose of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder and Holders of the Securities and
the Guarantees and any amounts deposited under paragraph (d) below shall cease
to be subject to any obligations to, or the rights of, any holder of Senior
Indebtedness under Article Four or Article Twelve or otherwise. For this
purpose, covenant defeasance means that, with respect to the outstanding
Securities, the Company and any Subsidiary Guarantor may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant listed above, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under
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Section 7.1(iii), but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company must have irrevocably deposited with the Trustee
(or another trustee satisfying the requirements of Section 8.10 who shall
agree to comply with the provisions of this Section 9.2 applicable to it)
in trust, for the benefit of the Holders, cash in U.S. dollars, U.S.
Government Obligations, or a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any,
and interest on the Securities on the Maturity Date or Redemption Date, as
the case may be;
(ii) in the case of legal defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service
a ruling or (B) since the date of this Indenture, there has been a change
in the applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the
Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such legal defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such legal defeasance had not
occurred;
(iii) in the case of covenant defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders will not
recognize income, gain or loss for federal income tax purposes as a result
of such covenant defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as clauses (vi) or (vii)
of Section 7.1 are concerned, at any time in the period ending on the 91st
day after the date of deposit;
(v) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under this
Indenture or any other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound;
(vi) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or
with the intent of
74
defeating, hindering, delaying or defrauding any other creditors of the
Company or others;
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the legal defeasance or the covenant
defeasance have been complied with; and
(viii) the Company shall have delivered 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, insolvency, reorganization or similar laws affecting creditors'
rights generally.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (ii) above with respect to a legal defeasance need not be delivered if
all Securities not theretofore delivered to the Trustee for cancellation (x)
have become due and payable, (y) will become due and payable on the maturity
date within one year or (z) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of a notice of
redemption by the Trustee in the name, and at the expense, of the Company.
(e) All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d)
-------
above in respect of the outstanding Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(other than the Company or any Affiliate of the Company), to the Holders of such
Securities of all sums due and to become due thereon in respect of principal,
premium and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to paragraph (d) above or the principal, premium, if any, and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Securities. The Company's obligations to pay and indemnify the Trustee as set
forth in this paragraph shall survive the termination of this Indenture and the
Securities.
Anything in this Section 9.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request,
in writing, by the Company any money or U.S. Government Obligations held by it
as provided in paragraph (d) above which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance.
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Section 9.3. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Sections 9.1 and 9.2, and shall apply
the deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium, if any, and
interest on the Securities.
Section 9.4. Repayment to the Company or Subsidiary Guarantors.
Subject to Sections 8.7, 9.1 and 9.2, the Trustee shall promptly
pay to the Company, or if deposited with the Trustee by any Subsidiary
Guarantor, to such Subsidiary Guarantor, upon receipt by the Trustee of an
Officers' Certificate, any excess money, determined in accordance with Section
9.2, held by it at any time. The Trustee and the Paying Agent shall pay to the
Company or any Subsidiary Guarantor, as the case may be, upon receipt by the
Trustee or the Paying Agent, as the case may be, of an Officers' Certificate,
any money held by it for the payment of principal, premium, if any, or interest
that remains unclaimed for two years after payment to the Holders is required;
provided, however, that the Trustee and the Paying Agent before being required
- -------- -------
to make any payment may, but need not, at the expense of the Company cause to be
published once in a newspaper of general circulation in The City of New York or
mail to each Holder entitled to such money notice that such money remains
unclaimed and that after a date specified therein, which shall be at least 30
days from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the Company
or any Subsidiary Guarantor, as the case may be, Holders entitled to money must
look solely to the Company for payment as general creditors unless an applicable
abandoned property law designates another person, and all liability of the
Trustee or Paying Agent with respect to such money shall thereupon cease.
Section 9.5. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with this Indenture by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then and only then the Company's and each Subsidiary Guarantor's,
if any, obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had been made pursuant to this Indenture until
such time as the Trustee is permitted to apply all such money or U.S. Government
Obligations in accordance with this Indenture; provided, however, that if the
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Company or the Subsidiary Guarantors, as the case may be, has made any payment
of principal of, premium, if any, or interest on any Securities because of the
reinstatement of its obligations, the Company or the Subsidiary Guarantors, as
the case may be, shall be subrogated to the rights of the holders of such
Securities to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE X.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
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Section 10.1. Without Consent of Holders.
The Company and the Subsidiary Guarantors, when authorized by a
Board Resolution, and the Trustee, together, may amend or supplement this
Indenture or the Securities without notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency, so long as
such change does not adversely affect the rights of any of the Holders in any
material respect; and
(2) to comply with Article Six.
Section 10.2. With Consent of Holders.
Subject to Section 7.7, the Company and each Subsidiary
Guarantor, when authorized by a Board Resolution, the Trustee and the Holders of
not less than a majority in aggregate principal amount of the Securities then
outstanding, may amend or supplement (or waive compliance with any provision of)
this Indenture, the Securities or any Guarantee without any notice to any other
Holder, except that without the consent of each Holder of the Securities
affected, no such amendment, supplement or waiver may:
(1) reduce the amount of the Securities whose Holders must
consent to an amendment, supplement or waiver of any provision of this
Indenture, the Securities or the Guarantees;
(2) reduce the rate of or change or have the effect of changing
the time for payment of interest, including defaulted interest, on any
Securities;
(3) reduce the principal of or change or have the effect of
changing the fixed maturity of any Securities, or change the date on which any
Securities may be subject to redemption or repurchase, or reduce the redemption
or repurchase price therefor;
(4) make any Securities payable in money other than that stated
in the Securities;
(5) make any changes in the provisions of this Indenture
protecting the right of each Holder to receive payment of principal of and
interest on such Securities on or after the due date thereof or to bring suit to
enforce such payment, or permitting the Holders of a majority in principal
amount of the Securities to waive Defaults or Events of Default;
(6) amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of Control Offer in
the event of a Change of Control or make and consummate a Net Proceeds Offer
with respect to any Asset Sale that has been consummated or modify any of the
provisions or definitions with respect thereto;
(7) modify or change any of the subordination provision of this
Indenture or the related definitions in a manner that would adversely affect the
Holders; or
77
(8) release all of the Subsidiary Guarantors at any one time from
all of their obligations under the Guarantees otherwise than in accordance with
the terms of this Indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
In connection with any amendment, supplement or waiver under this
Article Ten, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
Section 10.3. Compliance with TIA.
From the date on which this Indenture is qualified under the TIA,
every amendment, waiver or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
Section 10.4. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his or her Security or portion of his or her Security by
notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Securities have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
persons who were Holders at such record date (or their duly designated proxies),
and only those persons, shall be entitled to revoke any consent previously
given, whether or not such persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 90 days after
such record date.
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After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it makes a change described in Section 10.2, in
which case, the amendment, supplement or waiver shall bind only each Holder of a
Security who has consented to it and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security; provided, however, that any such waiver shall not impair or affect the
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right of any Holder to receive payment of principal of and interest on a
Security, on or after the respective due dates expressed in such Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates without the consent of such Holder.
Section 10.5. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms.
Section 10.6. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Ten; provided, however, that the Trustee
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may, but shall not be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article Ten is
authorized or permitted by this Indenture.
ARTICLE XI.
GUARANTEE
Section 11.1. Unconditional Guarantee.
Each Subsidiary Guarantor hereby unconditionally guarantees (such
guarantee to be referred to herein as the "Guarantee"), on a senior subordinated
---------
basis, jointly and severally, subject to Article Twelve, to each Holder of a
Security authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, the Securities or the obligations of the Company
hereunder or thereunder, that: (i) the principal of and interest on the
Securities will be promptly paid in full when due, subject to any applicable
grace period, whether at maturity, by acceleration or otherwise and interest on
the overdue principal, if any, and interest on any interest, to the extent
lawful, of the Securities and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (ii) in case
of any extension of time of payment or renewal of any Securities or of any such
other obligations, the
79
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, subject to any applicable grace period,
whether at stated maturity, by acceleration or otherwise, subject, however, in
the case of clauses (i) and (ii) above, to the limitations set forth in Section
11.5. Each Subsidiary Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this
Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and in this Guarantee.
If any Holder or the Trustee is required by any court or otherwise to return to
the Company, any Subsidiary Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to the Company or any Subsidiary
Guarantor, any amount paid by the Company or any Subsidiary Guarantor to the
Trustee or such Holder, this Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Subsidiary Guarantor further
agrees that, as between each Subsidiary Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Seven for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Seven, such obligations (whether or not due and payable)
shall forthwith become due and payable by each Subsidiary Guarantor for the
purpose of this Guarantee.
Section 11.2. Subordination of Guarantee.
The obligations of each Subsidiary Guarantor to the Holders of
Securities pursuant to the Guarantee and this Indenture are expressly
subordinate and subject in right of payment to the prior payment in full of all
Guarantor Senior Indebtedness of such Subsidiary Guarantor, to the extent and in
the manner provided in Article Twelve.
Section 11.3. Severability.
In case any provision of this Guarantee shall be invalid, illegal
or unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 11.4. Release of a Subsidiary Guarantor.
Upon the sale or disposition (whether by merger, stock purchase,
asset sale or otherwise) of a Subsidiary Guarantor (or all or substantially all
its assets) to an entity which is not a Subsidiary of the Company and which sale
or disposition is otherwise in compliance
80
with the terms of this Indenture (including, without limitation, Sections 5.16
and 6.1), such Subsidiary Guarantor shall be deemed released from all
obligations under this Article Eleven without any further action required on the
part of the Trustee or any Holder; provided, however, that any such termination
-------- -------
shall occur only to the extent that all obligations of such Subsidiary Guarantor
under all of its guarantees of, and under all of its pledges of assets or other
security interests which secure, such Indebtedness of the Company shall also
terminate upon such release, sale or transfer.
The Trustee shall deliver an appropriate instrument evidencing such
release upon receipt of a request by the Company accompanied by an Officers'
Certificate certifying as to the compliance with this Section 11.4. Any
Subsidiary Guarantor not so released remains liable for the full amount of
principal of and interest on, and all other obligations under, the Securities as
provided in this Article Eleven.
Section 11.5. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor and by its acceptance hereof each Holder
hereby confirms that it is the intention of all such parties that the guarantee
by such Subsidiary Guarantor pursuant to its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law. To effectuate the foregoing intention, the
Holders and such Subsidiary Guarantor hereby irrevocably agree that the
obligations of such Subsidiary Guarantor under the Guarantee shall be limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Subsidiary Guarantor (including, but not limited to,
the Guarantor Senior Indebtedness of such Subsidiary Guarantor) and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Guarantee or pursuant to Section 11.7, result in the
obligations of such Subsidiary Guarantor under the Guarantee not constituting
such fraudulent transfer or conveyance under federal or state law.
Section 11.6. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Subsidiary Guarantor
with or into the Company or another Subsidiary Guarantor or shall prevent any
sale or conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety, to the Company or another Subsidiary Guarantor.
Upon any such consolidation, merger, sale or conveyance, the Guarantee given by
such Subsidiary Guarantor shall no longer have any force or effect.
(b) Except as set forth in Article Five and Article Six hereof,
nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of a Subsidiary Guarantor with or into a corporation
or corporations other than the Company or another Subsidiary Guarantor (whether
or not affiliated with the Subsidiary Guarantor); provided, however, that,
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subject to Sections 11.4 and 11.6(a), (i) immediately after such transaction,
and giving effect thereto, no Default or Event of Default shall have occurred as
81
a result of such transaction and be continuing, and (ii) upon any such
consolidation, merger, sale or conveyance, the Guarantee set forth in this
Article Eleven, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed by such
Subsidiary Guarantor, shall be expressly assumed (in the event that the
Subsidiary Guarantor is not the surviving corporation in the merger), by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the corporation formed by such consolidation, or
into which the Subsidiary Guarantor shall have merged, or by the corporation
that shall have acquired such property. In the case of any such consolidation,
merger, sale or conveyance and upon the assumption by the successor corporation,
by supplemental indenture executed and delivered to the Trustee and satisfactory
in form to the Trustee of the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Subsidiary
Guarantor, such successor corporation shall succeed to and be substituted for
the Subsidiary Guarantor with the same effect as if it had been named herein as
a Subsidiary Guarantor; provided, however, that solely for purposes of computing
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amounts described in subclause (c) of Section 5.3(a), any such successor
corporation shall only be deemed to have succeeded to and be substituted for any
Subsidiary Guarantor with respect to periods subsequent to the effective time of
such merger, consolidation or transfer of assets.
Section 11.7. Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Guarantee, such Funding Guarantor shall be
-----------------
entitled to a contribution from all other Subsidiary Guarantors in a pro rata
amount based on the Adjusted Net Assets of each Subsidiary Guarantor (including
the Funding Guarantor) for all payments, damages and expenses incurred by that
Funding Guarantor in discharging the Company's obligations with respect to the
Securities or any other Subsidiary Guarantor's obligations with respect to the
Guarantee. "Adjusted Net Assets" with respect to the Guarantee of such
-------------------
Subsidiary Guarantor at any date shall mean the lesser of the amount by which
(x) the fair value of the property of such Subsidiary Guarantor exceeds the
total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date (other than liabilities of such Subsidiary
Guarantor under Indebtedness which is subordinated to such Guarantee)), but
excluding liabilities under the Guarantee, of such Subsidiary Guarantor at such
date and (y) the present fair salable value of the assets of such Subsidiary
Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Subsidiary Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date (other than liabilities of such Subsidiary Guarantor under Indebtedness
which is subordinated to such Guarantee) and after giving effect to any
collection from any Subsidiary of such Subsidiary Guarantor in respect of the
obligations of such Subsidiary under the Guarantee), excluding debt in respect
of the Guarantee of such Subsidiary Guarantor, as they become absolute and
matured.
Section 11.8. Waiver of Subrogation.
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Each Subsidiary Guarantor hereby irrevocably waives any claim or
other rights which it may now or hereafter acquire against the Company that
arise from the existence, payment, performance or enforcement of such Subsidiary
Guarantor's obligations under the Guarantee and this Indenture, including,
without limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Securities against the Company, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Subsidiary Guarantor in violation of the preceding sentence
and the Securities shall not have been paid in full, such amount shall have been
deemed to have been paid to such Subsidiary Guarantor for the benefit of, and
held in trust for the benefit of, the Holders of the Securities, and shall,
subject to the provisions of Section 11.2, Article Four and Article Twelve,
forthwith be paid to the Trustee for the benefit of such Holders to be credited
and applied upon the Securities, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Subsidiary Guarantor acknowledges that it
will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
11.8 is knowingly made in contemplation of such benefits.
Section 11.9. Waiver of Stay, Extension or Usury Laws.
Each Subsidiary Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive each
such Subsidiary Guarantor from performing its Guarantee as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) each such Subsidiary Guarantor hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE XII.
SUBORDINATION OF GUARANTEE OBLIGATIONS
Section 12.1. Guarantee Obligations Subordinated to Guarantor Senior
Indebtedness.
Anything herein to the contrary notwithstanding, each of the
Subsidiary Guarantors, for itself and its successors, and each Holder, by his or
her acceptance of Guarantees, agrees that the payment of all Obligations owing
to the Holders in respect of its Guarantee (collectively, as to any Subsidiary
Guarantor, its "Guarantee Obligations") is subordinated, to the extent and in
---------------------
the manner provided in this Article Twelve, to the prior payment in full in cash
or Cash Equivalents, or such payment duly provided for to the satisfaction of
the holders of Guarantor Senior Indebtedness, of all Obligations on Guarantor
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Senior Indebtedness of such Subsidiary Guarantor, including without limitation,
the Subsidiary Guarantors' obligations under the Bank Facility.
This Article Twelve shall constitute a continuing offer to all
Persons who become holders of, or continue to hold, Guarantor Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Guarantor Senior Indebtedness and such holders are made obligees hereunder and
any one or more of them may enforce such provisions.
Section 12.2. Suspension of Guarantee Obligations When Guarantor Senior
Indebtedness in Default.
(a) If any default occurs and is continuing in the payment when
due, whether at maturity, upon any redemption, by declaration or otherwise, of
any principal or interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Designated Senior
Indebtedness of a Subsidiary Guarantor or guaranteed by a Subsidiary Guarantor
(which Designated Senior Indebtedness or guarantee, as the case may be,
constitutes Guarantor Senior Indebtedness of such Subsidiary Guarantor), no
payment of any kind or character shall be made by or on behalf of the Company or
any other Person on its or their behalf with respect to any Obligations on the
Securities or to acquire any of the Securities for cash or property or
otherwise. In addition, if any other event of default occurs and is continuing
with respect to any Designated Senior Indebtedness of a Subsidiary Guarantor, as
such event of default is defined in the instrument creating or evidencing such
Designated Senior Indebtedness, permitting the holders of such Designated Senior
Indebtedness then outstanding to accelerate the maturity thereof and if the
Representative for the respective issue of Designated Senior Indebtedness gives
a Default Notice, then, unless and until all events of default with respect to
such Designated Senior Indebtedness have been cured (if capable of being cured)
or waived in writing or have ceased to exist or the Trustee receives notice from
the Representative for the respective issue of Designated Senior Indebtedness
terminating the Blockage Period, during the Blockage Period, neither the Company
nor any other Person on its behalf shall (x) make any payment of any kind or
character with respects to any Obligations on the Securities or (y) acquire any
of the Securities for cash or property or otherwise. Notwithstanding anything
herein to the contrary, in no event will a Blockage Period extend beyond 179
days from the date the payment on the Securities was due and only one such
Blockage Period may be commenced within any 360 consecutive days. No event of
default which existed or was continuing on the date of the commencement of any
Blockage Period with respect to the Designated Senior Indebtedness shall be, or
be made, the basis for commencement of a second Blockage Period by the
Representative of such Designated Senior Indebtedness whether or not within a
period of 360 consecutive days, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Blockage Period, that in either case, would give rise to an event of default
pursuant to any provisions under which an event of default previously existed or
was continuing shall constitute a new event of default for this purpose).
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(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 12.2(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Guarantor Senior Indebtedness
(pro rata to such holders on the basis of the respective amount of Guarantor
Senior Indebtedness held by such holders) or their respective Representatives,
as their respective interests may appear. The Trustee shall be entitled to rely
on information regarding amounts then due and owing on the Guarantor Senior
Indebtedness, if any, received from the holders of Guarantor Senior Indebtedness
(or their Representatives) or, if such information is not received from such
holders or their Representatives, from the Company and only amounts included in
the information provided to the Trustee shall be paid to the holders of
Guarantor Senior Indebtedness.
(c) Nothing contained in this Article Twelve shall limit the right of
the Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Section 7.2 or to pursue any rights or
remedies hereunder; provided, however, that so long as any Indebtedness
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permitted to be incurred under this Indenture pursuant to the Bank Facility
shall be outstanding, no such acceleration shall be effective until the earlier
of (i) acceleration of any such Indebtedness under the Bank Facility or (ii)
five business days after giving notice to the Representative under the Bank
Facility of such acceleration, and all Guarantor Senior Indebtedness thereafter
due or declared to be due shall first be paid in full in cash or Cash
Equivalents before the Holders are entitled to receive any payment of any kind
or character with respect to Obligations on the Securities.
Section 12.3. Guarantee Obligations Subordinated to Prior Payment of All
Guarantor Senior Indebtedness on Dissolution, Liquidation or
Reorganization of Such Subsidiary Guarantor.
(a) Upon any payment or distribution of assets of any Subsidiary
Guarantor of any kind or character, whether in cash, property or securities to
creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors or marshaling of assets of such
Subsidiary Guarantor, whether voluntary or involuntary, or in a bankruptcy,
reorganization, insolvency, receivership or other similar proceeding relating to
any Subsidiary Guarantor or its property, whether voluntary or involuntary, but
excluding any liquidation or dissolution of a Subsidiary Guarantor into the
Company or into another Subsidiary Guarantor:
(i) the holders of all Guarantor Senior Indebtedness of such
Subsidiary Guarantor shall first be entitled to receive payments in full in
cash or Cash Equivalents, or such payment duly provided for to the
satisfaction of the holders of Guarantor Senior Indebtedness, of all
amounts payable under Guarantor Senior Indebtedness before the Holders will
be entitled to receive any payment or distribution of any kind or character
on account of the Guarantee of such Subsidiary Guarantor, and until all
Obligations with respect to the Guarantor Senior Indebtedness are paid in
full in cash or Cash Equivalents, or such payment duly provided for to the
satisfaction of the holders of Guarantor Senior Indebtedness, any
distribution to which the Holders would be entitled
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shall be made to the holders of Guarantor Senior Indebtedness of such
Subsidiary Guarantor;
(ii) any payment or distribution of assets of such Subsidiary
Guarantor of any kind or character, whether in cash, property or
securities, to which the Holders or the Trustee on behalf of the Holders
would be entitled except for the provisions of this Article Twelve shall be
paid by the liquidating trustee or agent or other Person making such a
payment or distribution, directly to the holders of Guarantor Senior
Indebtedness of such Subsidiary Guarantor or their Representatives, ratably
according to the respective amounts of such Guarantor Senior Indebtedness
remaining unpaid held or represented by each, until all such Guarantor
Senior Indebtedness remaining unpaid shall have been paid in full in cash
or Cash Equivalents, or such payment duly provided for to the satisfaction
of the holders of Guarantor Senior Indebtedness, after giving effect to any
concurrent payment or distribution to the holders of such Guarantor Senior
Indebtedness; and
(iii) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of such Subsidiary Guarantor of any kind
or character, whether such payment shall be in cash, property or
securities, and such Subsidiary Guarantor shall have made payment to the
Trustee or directly to the Holders or any Paying Agent in respect of
payment of the Guarantees before all Guarantor Senior Indebtedness of such
Subsidiary Guarantor is paid in full in cash or Cash Equivalents, or such
payment duly provided for to the satisfaction of the holders of Guarantor
Senior Indebtedness, such payment or distribution (subject to the
provisions of Sections 12.6 and 12.7) shall be received, segregated from
other funds, and held in trust by the Trustee or such Holder or Paying
Agent for the benefit of, and shall immediately be paid over by the Trustee
(if the notice required by Section 12.6 has been received by the Trustee)
or by the Holder to, the holders of such Guarantor Senior Indebtedness or
their Representatives, ratably according to the respective amounts of such
Guarantor Senior Indebtedness held or represented by each, until all such
Guarantor Senior Indebtedness remaining unpaid shall have been paid in full
in cash or Cash Equivalents, or such payment duly provided for to the
satisfaction of the holders of Guarantor Senior Indebtedness, after giving
effect to any concurrent payment or distribution to the holders of
Guarantor Senior Indebtedness.
(b) Each Subsidiary Guarantor shall give prompt notice to the
Trustee prior to any dissolution, winding-up, total or partial liquidation or
total or reorganization (including, without limitation, in bankruptcy,
insolvency, or receivership proceedings or upon any assignment for the benefit
of creditors or any other marshaling of such Subsidiary Guarantor's assets and
liabilities).
(c) To the extent any payment of Guarantor Senior Indebtedness
(whether by or on behalf of a Subsidiary Guarantor, as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
than, if
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such payment is recovered by, or paid over to, such receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person, the Guarantor
Senior Indebtedness or part thereof originally intended to be satisfied shall be
deemed to be reinstated and outstanding as if such payment has not occurred.
Section 12.4. Holders of Guarantee Obligations To Be Subrogated to Rights of
Holders of Guarantor Senior Indebtedness.
(a) Subject to the payment in full in cash or Cash Equivalents,
or such payment duly provided for to the satisfaction of the holders of
Guarantor Senior Indebtedness, of all Guarantor Senior Indebtedness, the Holders
of Guarantee Obligations of a Subsidiary Guarantor shall be subrogated to the
rights of the holders of Guarantor Senior Indebtedness of such Subsidiary
Guarantor to receive payments or distributions of assets of such Subsidiary
Guarantor applicable to such Guarantor Senior Indebtedness until all amounts
owing on or in respect of the Guarantee Obligations shall be paid in full in
cash or Cash Equivalents, and for the purpose of such subrogation no payments or
distributions to the holders of such Guarantor Senior Indebtedness by or on
behalf of such Subsidiary Guarantor, or by or on behalf of the Holders by virtue
of this Article Twelve, which otherwise would have been made to the Holders
shall, as between such Subsidiary Guarantor and the Holders, be deemed to be
payment by such Subsidiary Guarantor to or on account of such Guarantor Senior
Indebtedness, it being understood that the provisions of this Article Twelve are
and are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of such Guarantor Senior Indebtedness,
on the other hand.
(b) If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Twelve shall
have been applied, pursuant to the provisions of this Article Twelve, to the
payment of all amounts payable under such Guarantor Senior Indebtedness, then
the Holders shall be entitled to receive from the holders of such Guarantor
Senior Indebtedness any such payments or distributions received by such holders
of such Guarantor Senior Indebtedness in excess of the amount sufficient to pay
all amounts payable under or in respect of such Guarantor Senior Indebtedness in
full in cash or Cash Equivalents, or such payment duly provided for to the
satisfaction of the holders of Guarantor Senior Indebtedness.
(c) Each Holder by purchasing or accepting a Security waives any
and all notice of the creation, modification, renewal, extension or accrual of
any Guarantor Senior Indebtedness of the Subsidiary Guarantors and notice of or
proof of reliance by any holder or owner of Guarantor Senior Indebtedness of the
Subsidiary Guarantors upon this Article Twelve and the Guarantor Senior
Indebtedness of the Subsidiary Guarantors shall conclusively be deemed to have
been created, contracted or incurred in reliance upon this Article Twelve, and
all dealings between the Subsidiary Guarantors and the holders and owners of the
Guarantor Senior Indebtedness of the Subsidiary Guarantors shall be deemed to
have been consummated in reliance upon this Article Twelve.
Section 12.5. Obligations of the Subsidiary Guarantors Unconditional.
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(a) Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Guarantees is intended to or shall impair, as between the
Subsidiary Guarantors and the Holders, the obligation of the Subsidiary
Guarantors, which is absolute and unconditional, to pay to the Holders all
amounts due and payable under the Guarantees as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders and creditors of the Subsidiary
Guarantors other than the holders of the Guarantor Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article Twelve, of the
holders of Guarantor Senior Indebtedness in respect of cash, property or
securities of the Subsidiary Guarantors received upon the exercise of any such
remedy. Upon any payment or distribution of assets of any Subsidiary Guarantor
referred to in this Article Twelve, the Trustee, subject to the provisions of
Sections 8.1 and 8.2, and the Holders shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which any liquidation,
dissolution, winding-up or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee or agent
or other Person making any payment or distribution to the Trustee or to the
Holders for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of Guarantor Senior Indebtedness and
other Indebtedness of any Subsidiary Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Twelve. Nothing in this Article Twelve
shall apply to the claims of, or payments to, the Trustee under or pursuant to
Section 8.7. The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself or itself to be a holder of any
Guarantor Senior Indebtedness (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given by
a holder of such Guarantor Senior Indebtedness or a trustee or Representative on
be half of any such holder.
(b) In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Twelve, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Guarantor Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Twelve, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 12.6. Trustee Entitled To Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of
the existence of any facts that would prohibit the making of any payment to or
by the Trustee unless and until the Trustee or any Paying Agent shall have
received notice thereof from the Company or any Subsidiary Guarantor or from one
or more holders of Guarantor Senior Indebtedness or from any Representative
therefore and, prior to the receipt of any such notice, the Trustee, subject to
the provisions of Sections 8.1 and 8.2, shall be entitled in all respects
conclusively to assume (in the absence of actual knowledge to the contrary) that
no such fact exists.
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Section 12.7. Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with Sections 9.1 and 9.2
shall be for the sole benefit of Holders of the Securities and, to the extent
allocated for the payment of Securities, shall not be subject to the
subordination provisions of this Article Twelve or Article Four. Otherwise, any
deposit of assets or securities by or on behalf of a Subsidiary Guarantor with
the Trustee or any Paying Agent (whether or not in trust) for payment of the
Guarantees shal l be subject to the provisional signs of this Article Twelve;
provided, however, that if prior to the second Business Day preceding the date
- -------- -------
on which by the terms of this Indenture any such assets may become distributable
for any purpose (including, without limitation, the payment of either principal
of or interest on any Security) the Trustee or such Paying Agent shall not have
received with respect to such assets the notice provided for in Section 12.6,
then the Trustee or such Paying Agent shall have full power and authority to
receive such assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary received by it
on or after such date. The foregoing shall not apply to the Paying Agent if the
Company or any Subsidiary or Affiliate of the Company is acting as Paying Agent.
Nothing contained in this Section 12.7 shall limit the right of the holders of
Guarantor Senior Indebtedness to recover payments as contemplated by this
Article Twelve.
Section 12.8. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Guarantor
Senior Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of any Subsidiary Guarantor or by any act or failure to act, by any such
holder, or by any non-compliance by any Subsidiary Guarantor with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 12.8, the holders of Guarantor Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordination provided in
this Article Twelve or the obligations hereunder of the Holders of the
Securities to the holders of Guarantor Senior Indebtedness, do any one or more
of the following: (1) change the manner, place, terms or time of payment of, or
renew or alter, Guarantor Senior Indebtedness or any instrument evidencing the
same or any agreement under which Guarantor Senior Indebtedness is outstanding
or otherwise amend, renew, exchange, restate, modify or supplement in any manner
Guarantor Senior Indebtedness or any instrument evidencing or guaranteeing
Guarantor Senior Indebtedness or securing the same or any agreement under which
Guarantor Senior Indebtedness is outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Guarantor Senior Indebtedness; (3) settle or compromise any Guarantor Senior
Indebtedness release any Person liable in any manner for the collection or
payment of Guarantor Senior Indebtedness; and (4) exercise or delay in or
refrain from exercising any rights against the Subsidiary Guarantors and any
other Person, fail to take or to record or otherwise perfect, for
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any reason or for no reason, any lien or security interest securing Guarantor
Senior Indebtedness, elect any remedy or otherwise deal freely with the Company.
Section 12.9. Holders Authorize Trustee To Effectuate Subordination of
Guarantee Obligations.
Each Holder of the Guarantee Obligations by its acceptance
thereof authorizes and expressly directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effect the subordination provisions
contained in this Article Twelve, and appoints the Trustee its attorney-in-fact
for such purpose, including, in the event of any liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors or
marshaling of assets of any Subsidiary Guarantor tending towards liquidation or
reorganization of the business and assets of any Subsidiary Guarantor, the
immediate filing of a claim for the unpaid balance under its or his Guarantee
Obligations in the form required in said proceedings and cause said claim to be
approved. If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then any of the other holders of the
Guarantor Senior Indebtedness or their Representative is hereby authorized, to
file an appropriate claim for and on behalf of the Holders of said Guarantee
Obligations. Nothing herein contained shall be deemed to authorize the Trustee
or the holders of Guarantor Senior Indebtedness or their Representative to
authorize or consent to or accept or adopt on behalf of any holder of Guarantee
Obligations any plan of reorganization, arrangement, adjustment or composition
affecting the Guarantee Obligations or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Guarantor Senior Indebtedness or their
Representative to vote in respect of the claim of any holder of Guarantee
Obligations in any such proceeding.
Section 12.10. Right of Trustee To Hold Guarantor Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in
this Article Twelve in respect of any Guarantor Senior Indebtedness at any time
held by it to the same extent as any other holder of Guarantor Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
Section 12.11. No Suspension of Remedies.
(a) The failure to make a payment in respect of the Guarantees by
reason of any provision of this Article Twelve shall not be construed as
preventing the occurrence of a Default or an Event of Default under Section 7.1.
(b) Except as the effectiveness of acceleration is limited by
Section 12.2(c), nothing contained in this Article Twelve shall limit the right
of the Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Seven or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article Twelve of the holders, from time to time, of Guarantor Senior
Indebtedness.
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Section 12.12. No Fiduciary Duty of Trustee to Holders of Guarantor Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness, and it undertakes to perform or
observe such of its covenants and obligations as are specifically set forth in
this Article Twelve, and no implied covenants or obligations with respect to the
Guarantor Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be liable to any such holders (other than for
its willful misconduct or gross negligence) if it shall pay over or deliver to
the holders of Guarantee Obligations or the Guarantors or any other Person,
money or assets in compliance with the terms of this Indenture. Nothing in this
Section 12.12 shall affect the obligation of any Person other than the Trustee
to hold such payment for the benefit of, and to pay such payment over to, the
holders of Guarantor Senior Indebtedness or their Representative.
ARTICLE XIII.
MISCELLANEOUS
Section 13.1. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of the TIA, the TIA shall
control.
Section 13.2. Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telex, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
if to the Company or any Subsidiary Guarantor:
Rental Service Corporation
6929 E. Greenway Park
Suite 200
Scottsdale, Arizona 85254
Attention: Chief Executive Officer,
Chief Financial Officer and
Manager of Financial Reporting
with a copy to:
Latham & Watkins
633 W. Fifth Street
Suite 4000
Los Angeles, California 90071
Attention: Elizabeth Blendell
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if to the Trustee:
Norwest Bank Minnesota, N.A.
6th and Marquette
Minneapolis, Minnesota 55479-0069
Attention: Corporate Trust Administration
Each of the Company, the Trustee and the Subsidiary Guarantors by
written notice to each other such person may designate additional or different
addresses for notices to such person. Any notice or communication to the
Company, the Trustee and the Subsidiary Guarantors shall be deemed to have been
given or made as of the date so delivered if personally delivered; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and five (5)
calendar days after mailing if sent by registered or certified mail, postage
prepaid (except that any notice or communication to the Trustee or a notice of
change of address shall not be deemed to have been given until actually received
by the Trustee or the addressee, as applicable).
Any notice or communication mailed to a Holder shall be mailed to
him or her by first class mail or other equivalent means at his or her address
as it appears on the registration books of the Registrar and shall be
sufficiently given to him or her if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Section 13.3. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Subsidiary Guarantors, the Trustee, the Registrar and any other
person shall have the protection of TIA Section 312(c).
Section 13.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company, upon request, shall furnish
to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 13.5. Statements Required in Certificate or Opinion.
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Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 5.7, shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she
has made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided, however,
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that with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
Section 13.6. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Paying Agent or Registrar may make reasonable rules for
its functions.
Section 13.7. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of
-------------
payment is a Saturday, a Sunday or a day on which banking institutions in New
York, New York, in the city in which the principal corporate trust office of the
Trustee is located or at such place of payment are not required to be open. If a
payment date is a Legal Holiday at such place, payment may be made at such place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
Section 13.8. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. Each of the parties hereto agrees to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Indenture.
Section 13.9. No Adverse Interpretation of Other Agreements.
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This Indenture may not be used to interpret another indenture,
loan or debt agreement of any of the Company or any of its Subsidiaries. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 13.10. No Recourse Against Others.
No director, officer, employee, stockholder or incorporator of
the Company or its Subsidiaries, as such, shall have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
Section 13.11. Successors.
All agreements of the Company and each Subsidiary Guarantor in
this Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.
Section 13.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
Section 13.13. Headings and Table of Contents.
The headings and table of contents contained in this Indenture
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Indenture.
Section 13.14. Severability.
In case any one or more of the provisions in this Indenture or in
the Securities shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions shall
be enforceable to the full extent permitted by law.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
RENTAL SERVICE CORPORATION
By: /s/ Robert M. Wilson
------------------------------
Name: Robert M. Wison
Title: Senior Vice President
(Signature Page Continues)
SUBSIDIARY GUARANTORS:
RSC ACQUISITION CORP.,
RSC ALABAMA, INC.,
RSC CENTER, INC.,
RSC DUVAL, INC.,
RSC HOLDINGS, INC.,
RSC INDUSTRIAL CORPORATION,
RSC RENTS, INC. and
WALKER JONES EQUIPMENT, INC., as guarantors
By: /s/ Robert M. Wilson
-------------------------------
Name: Robert M. Wilson
Title: Senior Vice President
(for each of the above-listed guarantors)
(Signature Page Continues)
NORWEST BANK MINNESOTA, N.A., as Trustee
By: /s/ Raymond S. Haverstock
-------------------------------
Name: Raymond S. Haverstock
Title: Authorized Signatory
1
EXHIBIT A
FORM OF SECURITY
[FACE OF SECURITY]
RENTAL SERVICE CORPORATION
9% Senior Subordinated Note due 2008
No. $_______________________
CUSIP No. ___________
RENTAL SERVICE CORPORATION, a Delaware corporation (the "Company,"
which term includes any successor corporation), for value received promises to
pay to CEDE & CO. or registered assigns, the principal sum of ________________
Dollars, on May 15, 2008.
Interest Payment Dates: May 15 and November 15 commencing on November
15, 1998.
Record Dates: May 1 and November 1.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officer.
Dated: May 15, 1998
RENTAL SERVICE CORPORATION
By:
-------------------------------
Name:
Title:
Trustee's Certification of Authentication
This is one of the 9% Senior Subordinated Notes Due 2008 described in the
within-mentioned Indenture.
NORWEST BANK MINNESOTA, N.A.,
as Trustee
By:
-------------------------------
Authorized Signatory
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[REVERSE SIDE OF SECURITY]
RENTAL SERVICE CORPORATION
9% SENIOR SUBORDINATED NOTE DUE 2008
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH RENTAL SERVICE CORPORATION OR ANY AFFILIATE OF RENTAL SERVICE
CORPORATION WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
ONLY (A) TO RENTAL SERVICE CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, AND TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON- U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS (a)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT (AND IF ACQUIRING THE SECURITIES FROM SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," IS ACQUIRING SECURITIES HAVING AN AGGREGATE PRINCIPAL
AMOUNT OF NOT LESS THAN $250,000), OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; SUBJECT IN
EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF
ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL
TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS PROVIDED THAT RENTAL SERVICE CORPORATION AND THE TRUSTEE SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF
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THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE.
1. Interest.
RENTAL SERVICE CORPORATION (the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above. The Company will pay interest semi-annually on each May 15 and November
15 of each year (the "Interest Payment Date"), commencing on November 15, 1998,
to the Holders of record on the immediately preceding May 1 and November 1.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance of the Securities. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at a rate equal to the
rate of interest otherwise payable on the Securities.
Pursuant to a registration rights agreement (the "Registration
Rights Agreement") dated as of the date hereof, the Company and the Subsidiary
Guarantors have agreed to register the Securities and the guarantees thereof
under the Act. The Securities are subject to the payment of additional interest
if the Company is not in compliance with its obligations under the Registration
Rights Agreement within the time periods specified therein.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Record Date immediately preceding the interest Payment Date even if the
Securities are canceled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by wire transfer of Federal funds, or interest by
its check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address. Notwithstanding the foregoing, the Company shall pay or cause to be
paid all amounts payable with respect to non-DTC eligible Securities by wire
transfer of Federal funds to the account of the Holders of such Securities.
3. Paying Agent and Registrar.
Initially, Norwest Bank Minnesota, N.A. (the "Trustee") will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-Registrar without notice to the Holders. The Company or any of its
Subsidiaries may, subject to certain exceptions, act as Paying Agent, Registrar
or co-Registrar.
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4. Indenture and Guarantees.
The Company issued the Securities under an Indenture, dated as of
May 13, 1998 (the "Indenture"), among the Company, the Subsidiary Guarantors and
the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-77bbbb) (the "TIA"), as
in effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and said Act for a statement of them. The
Securities are general unsecured obligations of the Company limited in aggregate
principal amount not to exceed $300.0 million, of which $200.0 million will be
offered as of the Issue Date and will mature on May 15, 2008. Payment on each
Security is guaranteed on a senior subordinated basis, jointly and severally, by
the Subsidiary Guarantors pursuant to Article Eleven of the Indenture.
5. Optional Redemption.
On or after May 15, 2003, the Securities may be redeemed in whole
at any time or in part from time to time, at the option of the Company, upon not
less than 30 nor more than 60 days notice, at a redemption price equal to the
applicable percentage of the principal amount thereof set forth below, together
with accrued and unpaid interest (if any) to the Redemption Date, if redeemed
during the twelve-month period commencing on May 15 of the year set forth below:
Year Redemption Price
2003.................. 104.500%
2004.................. 103.000%
2005.................. 101.500%
2006 and thereafter... 100.000%
In addition, on or prior to May 15, 2001, the Company may, at its
option, use the net cash proceeds of one or more Equity Offering to redeem the
Securities at a Redemption Price equal to 109% of the principal amount thereof
plus accrued and unpaid interest thereon, if any, to the Redemption Date;
provided, that at least 65% of the principal amount of Securities originally
- --------
issued remains outstanding immediately after any such redemption. In order to
effect the foregoing redemption with the proceeds of any Equity Offering, the
Company shall make such redemption not more than 120 days after the consummation
of any such Equity Offering.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder's registered address. In order to effect a redemption
with the proceeds of a Public Equity Offering, the Company shall send the
redemption notice not later than 120 days after the
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consummation of such Equity Offering. Securities in denominations larger than
$1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent for redemption on such Redemption Date
and payment of the Securities called for redemption is not prohibited under
Article Four or Article Twelve of the Indenture, then, unless the Company
defaults in the payment of such Redemption Price, the Securities called for
redemption will cease to bear interest and the only right of the Holders of such
Securities will be to receive payment of the Redemption Price.
7. Change of Control Offer.
Upon the occurrence of a Change of Control, each Holder shall have the
right to require the repurchase of such Holder's Securities pursuant to a Change
of Control Offer at a purchase price equal to 101% of the principal amount
thereof plus accrued interest, if any, to the date of purchase. The Company
shall not be required to make a Change of Control Offer, as provided above, if,
in connection with any Change of Control, it had made an offer to purchase (an
"Alternate Offer") any and all Securities validly tendered at a cash price equal
to or higher than the Change of Control Offer Price and has purchased all
Securities properly tendered in accordance with the terms of such Alternate
Offer.
8. Limitation on Asset Sales.
Under certain circumstances the Company is required to apply the net
proceeds from Asset Sales to the repayment of Senior Indebtedness, an investment
in properties and assets that replace the properties and assets that are the
subject of such Asset Sale, an investment in properties and assets that will be
used in the business of the Company and its Restricted Subsidiaries existing on
the Issue Date or in businesses reasonably related thereto or to purchase in a
Net Proceeds Offer (at a price equal to 100% of the aggregate principal amount
thereof, plus accrued interest to the date of purchase) such aggregate principal
amount of Securities which, when added to the accrued interest thereon, shall be
equal to the net proceeds required to be applied thereto.
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption.
10. Persons Deemed Owners.
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The registered Holder of a Security shall be treated as the owner of
it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agents will pay the money back to the
Company at its request. After that, all liability of the Trustee and such
Paying Agents with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S. Legal Tender
or U.S. Government Obligations sufficient to pay the principal of and interest
on the Securities to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be discharged
from certain provisions of the Indenture and the Securities (including the
financial covenants, but excluding its obligation to pay the principal of and
interest on the Securities).
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Securities and the
Guarantees may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
then outstanding, and any existing Default or Event of Default or compliance
with any provision may be waived with the consent of the Holders of a majority
in aggregate principal amount of the Securities then outstanding except a
default in payment of the principal of or interest on any Securities. Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture or the Securities to, among other things, cure any ambiguity,
defect or inconsistency, comply with Article Six or Section 11.6 of the
Indenture, so long as such change does not adversely affect the rights of any of
the Holders in any material respect.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Subsidiaries to, among other things, incur additional
Indebtedness or Liens, make payments in respect of its Capital Stock and merge
or consolidate with any other person and sell, lease, transfer or otherwise
dispose of substantially all of its properties or assets. The limitations are
subject to a number of important qualifications and exceptions. The Company
must annually report to the Trustee on compliance with such limitations.
15. Subordination.
The Securities will be subordinated in right of payment, in the manner
and to the extent set forth in the Indenture, to the prior payment in full of
all Senior Indebtedness of the Company. The Guarantees are subordinated in
right of payment, in the manner and to the extent set forth in the Indenture, to
the prior payment in full of Guarantor Senior Indebtedness.
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To the extent and in the manner provided in the Indenture, Senior Indebtedness,
and in the case of payment by a Subsidiary Guarantor, Guarantor Senior
Indebtedness, must be paid before any payment may be made to any Holder of this
Security. Any Holder by accepting this Security agrees to the subordination and
authorizes the Trustee to give it effect.
16. Successors.
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Securities notice of any continuing Default
or Event of Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
19. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such,
of the Company shall have any liability for any obligation of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
20. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on this Security.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the
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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).
22. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities immediately prior to the qualification of the
Indenture under the TIA as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Print or type assignee's Social Security or other identifying number)
and irrevocably appoint_________________________________________________________
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him or her.
Dated:________________ Signature:________________________________
(Sign exactly as your name appears on the face of this
Security)
Signature Guarantee:_________________________________
Note: Signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act") covering resales of this Security
(which effectiveness shall not have been suspended or terminated at the date of
the transfer) and (ii) the second anniversary of the Issue Date (provided,
--------
however, that neither the Company nor any affiliate of the Company has held any
- -------
beneficial interest in such Security, or portion thereof, at any time on or
prior to the second anniversary of the Issue Date), the undersigned confirms
that it has not utilized any general solicitation or general advertising in
connection with the transfer:
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[Check One]
(1) ____ to the Company or a Subsidiary thereof; or
(2) ____ pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or
(3) ____ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended) that has furnished to the Trustee a signed letter containing
certain representations and agreements (the form of which letter can
be obtained from the Trustee); or
(4) ____ outside the United states to a "foreign person'' in compliance with
Rule 904 of Regulation S under the Securities Act of 1933, as amended;
or
(5) ____ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(6) ____ pursuant to an effective registration statement under the Securities
Act of 1933, as amended; or
(7) ____ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate"' of the Company as defined in Rule
144 under the Securities Act of 1933, as amended (an "Affiliate"):
The transferee is an Affiliate of the Company.
Unless one of the items is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if item (3), (4),
-------- -------
(5) or (7) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Securities, in their sole discretion, such
written legal opinions, certifications (including an investment letter in the
case of box (3) or (4)) and other information as the Trustee or the Company have
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, as amended.
If none of the foregoing items are checked, the Trustee or Registrar
shall not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.17 of the Indenture shall have
been satisfied.
Dated: ____________________ Signed: ________________________________
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(Sign exactly as your name appears on the other
side of this Security)
Signature Guarantee: ___________________________________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: _________________________ Signed: ____________________________________
NOTICE: To be executed by an executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 5.15 or 5.16 of the Indenture, check the space below:
__ Section 5.15 __ Section 5.16
If you want to elect to have only part of the Security purchased by
the Company pursuant to Section 5.15 or Section 5.16 of the Indenture, as the
case may be, state the amount you elect to have purchased: $_________________.
Date:_______________________
_______________________________________________________
(Sign exactly as your name appears on the face of this
Security)
Tax Identification No: ________________________________
_______________________________________________________
(Signature Guaranteed)
Note: Signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
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EXHIBIT B
[FORM OF LEGEND FOR GLOBAL SECURITIES]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE DEPOSITORY, OR
BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.17 OF THE INDENTURE.
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EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
_____________ __, ____
[Address]
Re: RENTAL SERVICE CORPORATION (the "Company") -
9% Senior Subordinated Notes due 2008 (the "Notes")
---------------------------------------------------
_______________________
Ladies and Gentlemen:
In connection with our proposed purchase of 9% Senior Subordinated
Notes due 2008 (the "Notes") of RENTAL SERVICE CORPORATION (the "Company"), we
confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the indenture
relating to the Notes (the "Indenture") and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Notes except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act"), and all applicable State securities
laws.
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act or any other applicable securities law, and
that the Notes may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell any Notes, we will
do so only (i) to the Company or any subsidiary thereof, (ii) inside the United
States in accordance with Rule 144A under the Securities Act to a person who we
reasonably believe is a "qualified institutional buyer" (as defined in Rule 144A
promulgated under the Securities Act), (iii) inside the United States to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
the Trustee (as defined in the Indenture) a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the
Notes (the form of which letter can be obtained from the Trustee), (iv) outside
the United States in accordance with Rule 904 of Regulation S promulgated under
the Securities Act, (v) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act (if available), or (vi) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing any of the Notes from us a notice advising
such purchaser that resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will
be required to furnish to the Trustee and the Company such certification, legal
opinions and other information as the Trustee and the Company may reasonably
require to confirm that the
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proposed sale complies with the foregoing restrictions. We further understand
that the Notes purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or their investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account or for
one or more accounts (each of which is an institutional "accredited investor")
as to each of which we exercise sole investment discretion.
6. We have received a copy of the Company's Offering Memorandum
dated May __, 1998 and acknowledge that we have had access to such financial and
other information and have been afforded the opportunity to ask such questions
of representatives of the Company and receive answers thereto, as we deem
necessary in connection with our decision to purchase the Notes.
You, the Company, the Trustee, the Initial Purchasers and others are
entitled to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
__________________________________________
[Name of Transferee]
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
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EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
______________ ___, _____
[Address]
Re: RENTAL SERVICE CORPORATION (the "Company") -
9% Senior Subordinated Notes due 2008 (the "Notes")
_______________________
Ladies and Gentlemen:
In connection with our proposed sale of $[_________] aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither we nor any person acting on
our behalf knows that the transaction has been prearranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You, the Company, the Trustee and counsel for the Company are entitled
to rely upon this letter and are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferee]
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By: _________________________________________
Authorized Signature
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