Exhibit 4.5
INTERNATIONAL CONTROLS CORP.,
as Issuer
and
MARINE MIDLAND BANK
----------------------------
as Trustee
INDENTURE
Dated as of __________, 1994
----------------------------
$100,000,000
__% Senior Subordinated Notes due 2004
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of __________, 1994
Trust Indenture Indenture
Act Section Section
- --------------- ----------------
SECTION 310(a)(1) . . . . . . . . . . . . . . . 608
(a)(2) . . . . . . . . . . . . . . . 608
SECTION 312(c) . . . . . . . . . . . . . . . 702
SECTION 314(a) . . . . . . . . . . . . . . . 704, 1020
(c)(1) . . . . . . . . . . . . . . . 103
(c)(2) . . . . . . . . . . . . . . . 103
(e) . . . . . . . . . . . . . . . 103
SECTION 315(b) . . . . . . . . . . . . . . . 601
SECTION 316(a)(last
sentence) . . . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . 907
SECTION 317(a)(1) . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . 504
SECTION 318(a) . . . . . . . . . . . . . . . 108
_____________________
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
TABLE OF CONTENTS
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.. . . . . . . . . . . . . . . . . . . . . . 1
Acquired Indebtedness . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . 2
Agent . . . . . . . . . . . . . . . . . . . . . . . . 2
Asset Sale. . . . . . . . . . . . . . . . . . . . . . 2
Average Life to Stated Maturity . . . . . . . . . . . 3
Bankruptcy Law. . . . . . . . . . . . . . . . . . . . 3
Banks . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors. . . . . . . . . . . . . . . . . . 3
Board Resolution. . . . . . . . . . . . . . . . . . . 3
Borrowing Base. . . . . . . . . . . . . . . . . . . . 3
Business Day. . . . . . . . . . . . . . . . . . . . . 3
Capital Lease Obligation. . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . 3
Change of Control . . . . . . . . . . . . . . . . . . 3
Code. . . . . . . . . . . . . . . . . . . . . . . . . 4
Commission. . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . 5
Company Request or Company Order. . . . . . . . . . . 5
Consolidated Fixed Charge Coverage Ratio. . . . . . . 5
Consolidated Income Tax Expense . . . . . . . . . . . 5
Consolidated Interest Expense . . . . . . . . . . . . 5
Consolidated Net Income (Loss). . . . . . . . . . . . 6
Consolidated Net Worth. . . . . . . . . . . . . . . . 6
Consolidated Non-Cash Charges . . . . . . . . . . . . 6
Consolidation . . . . . . . . . . . . . . . . . . . . 6
Corporate Trust Office. . . . . . . . . . . . . . . . 6
Default . . . . . . . . . . . . . . . . . . . . . . . 7
Designated Senior Indebtedness. . . . . . . . . . . . 7
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Disinterested Director. . . . . . . . . . . . . . . . 7
Event of Default. . . . . . . . . . . . . . . . . . . 7
Exchange Act. . . . . . . . . . . . . . . . . . . . . 7
Fair Market Value . . . . . . . . . . . . . . . . . . 7
Generally Accepted Accounting Principles or GAAP. . . 7
Guarantee . . . . . . . . . . . . . . . . . . . . . . 7
Guaranteed Debt . . . . . . . . . . . . . . . . . . . 7
Guarantor . . . . . . . . . . . . . . . . . . . . . . 8
Holder. . . . . . . . . . . . . . . . . . . . . . . . 8
Indebtedness. . . . . . . . . . . . . . . . . . . . . 8
Indenture . . . . . . . . . . . . . . . . . . . . . . 9
Indenture Obligations . . . . . . . . . . . . . . . . 9
Interest Payment Date . . . . . . . . . . . . . . . . 9
Interest Rate Agreements. . . . . . . . . . . . . . . 9
Investment. . . . . . . . . . . . . . . . . . . . . . 9
Lien. . . . . . . . . . . . . . . . . . . . . . . . . 9
Material Subsidiary . . . . . . . . . . . . . . . . . 9
Maturity. . . . . . . . . . . . . . . . . . . . . . . 10
Net Cash Proceeds . . . . . . . . . . . . . . . . . . 10
New Credit Facility . . . . . . . . . . . . . . . . . 10
Non-payment Default . . . . . . . . . . . . . . . . . 11
Officers' Certificate . . . . . . . . . . . . . . . . 11
Opinion of Counsel. . . . . . . . . . . . . . . . . . 11
Outstanding . . . . . . . . . . . . . . . . . . . . . 11
Pari Passu Indebtedness . . . . . . . . . . . . . . . 12
Paying Agent. . . . . . . . . . . . . . . . . . . . . 12
Payment Default . . . . . . . . . . . . . . . . . . . 12
Permitted Holders . . . . . . . . . . . . . . . . . . 12
Permitted Indebtedness. . . . . . . . . . . . . . . . 12
Permitted Investment. . . . . . . . . . . . . . . . . 14
Permitted Junior Securities . . . . . . . . . . . . . 14
Permitted Liens . . . . . . . . . . . . . . . . . . . 14
Permitted Subsidiary Indebtedness . . . . . . . . . . 16
Person. . . . . . . . . . . . . . . . . . . . . . . . 16
Predecessor Security. . . . . . . . . . . . . . . . . 16
Preferred Stock . . . . . . . . . . . . . . . . . . . 16
Prospectus. . . . . . . . . . . . . . . . . . . . . . 17
Public Offering . . . . . . . . . . . . . . . . . . . 17
Purchase Money Obligation . . . . . . . . . . . . . . 17
Qualified Capital Stock . . . . . . . . . . . . . . . 17
Redeemable Capital Stock. . . . . . . . . . . . . . . 17
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Redemption Date . . . . . . . . . . . . . . . . . . . 17
Redemption Price. . . . . . . . . . . . . . . . . . . 18
Regular Record Date . . . . . . . . . . . . . . . . . 18
Responsible Officer . . . . . . . . . . . . . . . . . 18
Restricted Payment. . . . . . . . . . . . . . . . . . 18
Securities. . . . . . . . . . . . . . . . . . . . . . 18
Securities Act. . . . . . . . . . . . . . . . . . . . 18
Security Register . . . . . . . . . . . . . . . . . . 18
Security Registrar. . . . . . . . . . . . . . . . . . 18
Senior Indebtedness . . . . . . . . . . . . . . . . . 18
Senior Note Indenture . . . . . . . . . . . . . . . . 19
Senior Notes. . . . . . . . . . . . . . . . . . . . . 19
Separation Date . . . . . . . . . . . . . . . . . . . 19
Special Record Date . . . . . . . . . . . . . . . . . 19
Stated Maturity . . . . . . . . . . . . . . . . . . . 19
Subordinated Indebtedness . . . . . . . . . . . . . . 19
Subsidiary. . . . . . . . . . . . . . . . . . . . . . 19
Temporary Cash Investments. . . . . . . . . . . . . . 19
Trust Indenture Act . . . . . . . . . . . . . . . . . 20
Trustee . . . . . . . . . . . . . . . . . . . . . . . 20
Voting Stock. . . . . . . . . . . . . . . . . . . . . 20
Warrant . . . . . . . . . . . . . . . . . . . . . . . 20
Warrant Agent . . . . . . . . . . . . . . . . . . . . 20
Warrant Agreement . . . . . . . . . . . . . . . . . . 20
Wholly Owned Subsidiary . . . . . . . . . . . . . . . 20
Section 102. Other Definitions.. . . . . . . . . . . . . . . . . . . 21
Section 103. Compliance Certificates and Opinions. . . . . . . . . . 21
Section 104. Form of Documents Delivered to Trustee. . . . . . . . . 22
Section 105. Acts of Holders.. . . . . . . . . . . . . . . . . . . . 23
Section 106. Notices, etc., to Trustee, the Company and Any Guarantor. 24
Section 107. Notice to Holders; Waiver.. . . . . . . . . . . . . . . 24
Section 108. Conflict with Trust Indenture Act.. . . . . . . . . . . 25
Section 109. Effect of Headings and Table of Contents. . . . . . . . 25
Section 110. Successors and Assigns. . . . . . . . . . . . . . . . . 25
Section 111. Separability Clause.. . . . . . . . . . . . . . . . . . 25
Section 112. Benefits of Indenture.. . . . . . . . . . . . . . . . . 25
Section 113. Governing Law.. . . . . . . . . . . . . . . . . . . . . 25
Section 114. Legal Holidays. . . . . . . . . . . . . . . . . . . . . 25
Section 115. Consent to Jurisdiction and Service of Process. . . . . 26
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ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.. . . . . . . . . . . . . . . . . . . . 26
Section 202. Form of Face of Security. . . . . . . . . . . . . . . . 27
Section 203. Form of Reverse of Security.. . . . . . . . . . . . . . 31
Section 204. Form of Trustee's Certificate of Authentication.. . . . 35
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.. . . . . . . . . . . . . . . . . . . . 35
Section 302. Denominations.. . . . . . . . . . . . . . . . . . . . . 36
Section 303. Execution, Authentication, Delivery and Dating. . . . . 36
Section 304. Temporary Securities. . . . . . . . . . . . . . . . . . 37
Section 305. Registration, Registration of Transfer and Exchange.. . 38
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . 39
Section 307. Payment of Interest; Interest Rights Preserved. . . . . 40
Section 308. Persons Deemed Owners.. . . . . . . . . . . . . . . . . 41
Section 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . 41
Section 310. Computation of Interest.. . . . . . . . . . . . . . . . 41
Section 311. CUSIP Numbers.. . . . . . . . . . . . . . . . . . . . . 42
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . . . . 42
Section 402. Defeasance and Discharge. . . . . . . . . . . . . . . . 42
Section 403. Covenant Defeasance.. . . . . . . . . . . . . . . . . . 43
Section 404. Conditions to Defeasance or Covenant Defeasance.. . . . 43
Section 405. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions. . . . 46
Section 406. Reinstatement.. . . . . . . . . . . . . . . . . . . . . 46
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ARTICLE FIVE
REMEDIES
Section 501. Events of Default.. . . . . . . . . . . . . . . . . . . 47
Section 502. Acceleration of Maturity; Rescission and Annulment. . . 49
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee. . . . . . . . . . . . . . . . . . . . . . . 50
Section 504. Trustee May File Proofs of Claim. . . . . . . . . . . . 51
Section 505. Trustee May Enforce Claims Without Possession of
Securities. . . . . . . . . . . . . . . . . . . . . . . 51
Section 506. Application of Money Collected. . . . . . . . . . . . . 52
Section 507. Limitation on Suits.. . . . . . . . . . . . . . . . . . 52
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest. . . . . . . . . . . . . . . . . . 53
Section 509. Restoration of Rights and Remedies. . . . . . . . . . . 53
Section 510. Rights and Remedies Cumulative. . . . . . . . . . . . . 54
Section 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . 54
Section 512. Control by Holders. . . . . . . . . . . . . . . . . . . 54
Section 513. Waiver of Past Defaults.. . . . . . . . . . . . . . . . 54
Section 514. Undertaking for Costs.. . . . . . . . . . . . . . . . . 55
Section 515. Waiver of Stay, Extension or Usury Laws.. . . . . . . . 55
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults. . . . . . . . . . . . . . . . . . . 56
Section 602. Certain Rights of Trustee.. . . . . . . . . . . . . . . 56
Section 603. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof.. . . . . 58
Section 604. Trustee and Agents May Hold Securities;
Collections; etc. . . . . . . . . . . . . . . . . . . . 58
Section 605. Money Held in Trust.. . . . . . . . . . . . . . . . . . 58
Section 606. Compensation and Indemnification of Trustee and Its
Prior Claim.. . . . . . . . . . . . . . . . . . . . . . 59
Section 607. Conflicting Interests.. . . . . . . . . . . . . . . . . 60
Section 608. Corporate Trustee Required; Eligibility.. . . . . . . . 60
Section 609. Resignation and Removal; Appointment of
Successor Trustee.. . . . . . . . . . . . . . . . . . . 60
Section 610. Acceptance of Appointment by Successor. . . . . . . . . 62
Section 611. Merger, Conversion, Amalgamation, Consolidation or
Succession to Business. . . . . . . . . . . . . . . . . 63
Section 612. Preferential Collection of Claims Against Company.. . . 63
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders. 63
Section 702. Disclosure of Names and Addresses of Holders. . . . . . 64
Section 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . 64
Section 704. Reports by Company and Any Guarantor. . . . . . . . . . 64
ARTICLE EIGHT
CONSOLIDATION, MERGER, AMALGAMATION, CONVEYANCE,
TRANSFER OR LEASE
Section 801. Company or Guarantor May Consolidate, Merge, etc.,
Only on Certain Terms . . . . . . . . . . . . . . . . . 65
Section 802. Successor Substituted . . . . . . . . . . . . . . . . . 67
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements Without
Consent of Holders. . . . . . . . . . . . . . . . . . . 68
Section 902. Supplemental Indentures and Agreements with Consent
of Holders. . . . . . . . . . . . . . . . . . . . . . . 69
Section 903. Execution of Supplemental Indentures and Agreements . . 70
Section 904. Effect of Supplemental Indentures.. . . . . . . . . . . 70
Section 905. Conformity with Trust Indenture Act.. . . . . . . . . . 70
Section 906. Reference in Securities to Supplemental Indentures. . . 71
Section 907. Record Date . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest. . . . . . . 71
Section 1002. Maintenance of Office or Agency.. . . . . . . . . . . . 71
Section 1003. Money for Security Payments to Be Held in Trust . . . . 72
Section 1004. Corporate Existence . . . . . . . . . . . . . . . . . . 74
Section 1005. Payment of Taxes and Other Claims.. . . . . . . . . . . 74
Section 1006. Maintenance of Properties.. . . . . . . . . . . . . . . 74
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Section 1007. Insurance.. . . . . . . . . . . . . . . . . . . . . . . 74
Section 1008. Limitation on Indebtedness. . . . . . . . . . . . . . . 75
Section 1009. Limitation on Restricted Payments.. . . . . . . . . . . 75
Section 1010. Limitation on Transactions with Affiliates. . . . . . . 79
Section 1011. Limitation on Sale of Assets. . . . . . . . . . . . . . 80
Section 1012. Limitation on Liens.. . . . . . . . . . . . . . . . . . 85
Section 1013. Limitation on Issuances of Guarantees of Indebtedness
by Subsidiaries.. . . . . . . . . . . . . . . . . . . . 85
Section 1014. Purchase of Securities upon Change of Control.. . . . . 86
Section 1015. Limitation on Issuance and Sale of Capital Stock of . .
Subsidiaries. . . . . . . . . . . . . . . . . . . . . . 90
Section 1016. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries. . . . . . . . . . . . . . . . . 91
Section 1017. Limitation on Subordinated Indebtedness.. . . . . . . . 91
Section 1018. Provision of Financial Statements.. . . . . . . . . . . 91
Section 1019. Limitation on Compensation. . . . . . . . . . . . . . . 92
Section 1020. Statement by Officers as to Default.. . . . . . . . . . 92
Section 1021. Waiver of Certain Covenants.. . . . . . . . . . . . . . 93
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Right of Redemption.. . . . . . . . . . . . . . . . . . 93
Section 1102. Applicability of Article. . . . . . . . . . . . . . . . 94
Section 1103. Election to Redeem; Notice to Trustee.. . . . . . . . . 94
Section 1104. Selection by Trustee of Securities to Be Redeemed.. . . 94
Section 1105. Notice of Redemption. . . . . . . . . . . . . . . . . . 94
Section 1106. Deposit of Redemption Price.. . . . . . . . . . . . . . 95
Section 1107. Securities Payable on Redemption Date.. . . . . . . . . 96
Section 1108. Securities Redeemed or Purchased in Part. . . . . . . . 96
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
Section 1201. Securities Subordinate to Senior Indebtedness.. . . . . 96
Section 1202. Payment Over of Proceeds upon Dissolution, etc. . . . . 97
Section 1203. Suspension of Payment when Senior Indebtedness in Default. 98
Section 1204. Payment Permitted if No Default.. . . . . . . . . . . . 100
Section 1205. Subrogation to Rights of Holders of Senior Indebtedness. 100
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Section 1206. Provisions Solely to Define Relative Rights.. . . . . . 100
Section 1207. Trustee to Effectuate Subordination.. . . . . . . . . . 101
Section 1208. No Waiver of Subordination Provisions.. . . . . . . . . 101
Section 1209. Notice to Trustee.. . . . . . . . . . . . . . . . . . . 102
Section 1210. Reliance on Judicial Order or Certificate of
Liquidating Agent.. . . . . . . . . . . . . . . . . . . 103
Section 1211. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.. . . . . . . . . . . 103
Section 1212. Article Applicable to Paying Agents.. . . . . . . . . . 103
Section 1213. No Suspension of Remedies.. . . . . . . . . . . . . . . 104
Section 1214. Trustee's Relation to Senior Indebtedness.. . . . . . . 104
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE
Section 1301. Satisfaction and Discharge of Indenture.. . . . . . . . 104
Section 1302. Application of Trust Money. . . . . . . . . . . . . . . 105
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . 107
ACKNOWLEDGMENTS
SCHEDULE I Permitted Indebtedness
SCHEDULE II Restrictions Affecting Subsidiaries
EXHIBIT A Form of Intercompany Note
viii
INDENTURE, dated as of______, 1994, between INTERNATIONAL CONTROLS
CORP., a Florida corporation (the "Company"), and MARINE MIDLAND BANK, a
national banking association, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of __% Senior
Subordinated Notes due 2004 (the "Securities"), of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture;
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act;
All things necessary have been done to make the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of the Company in accordance with the terms of this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference thereto, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(e) all references to $, US$, dollars or United States dollars shall
refer to the lawful currency of the United States of America.
Certain terms used principally in Article Four are defined in Article
Four.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at
the time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person (or any partner of such
Person) or (ii) any other Person that owns, directly or indirectly, 5% or more
of such Person's (or any partner of such Person's) equity ownership or Voting
Stock or any executive officer or director of either of such Persons. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person
directly or indirectly, whether through ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent" means NBD Bank, N.A., the administrative agent under the New
Credit Facility, and its successors and assigns.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of (i) any
Capital Stock of any Subsidiary; (ii) all or substantially all of the properties
and assets of any division or line of business of the Company or its
Subsidiaries; or (iii) any other properties or assets of the Company or any
Subsidiary, other than in the ordinary course of business. For the purposes of
this definition, the term "Asset Sale" shall not include any transfer of
properties and assets (1) that is governed by the provisions described under
"Consolidation, Merger, Sale of Assets" or (2) that are of the Company to any
Wholly Owned Subsidiary, or of any Subsidiary to the Company or any Wholly Owned
Subsidiary in accordance with the terms of this Indenture.
2
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such principal
payment by (ii) the sum of all such principal payments.
"Bankruptcy Law" means Title 11 of the United States Code, as amended,
or any similar United States Federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of
debtors or any amendment to, succession to or change in any such law.
"Banks" means the lenders who are or become parties to the New Credit
Facility from time to time.
"Board of Directors" means either the board of directors of the
Company or any Guarantor, as the case may be, or any duly authorized committee
of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or any Guarantor, as the case
may be, to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Borrowing Base" means the sum of (a) 60% of the inventory owned by
the Company or any Subsidiary and (b) 85% of the trade accounts receivable owned
by the Company or any Subsidiary (less any reserves relating to such
receivables) (in each case as recorded on the books and records of the Company
on a consolidated basis in accordance with GAAP).
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
or the State of New Jersey are authorized or obligated by law or executive order
to close.
"Capital Lease Obligation" of any Person means any obligation of such
Person and its subsidiaries on a Consolidated basis under any capital lease of
real or personal property which, in accordance with GAAP, has been recorded as a
capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock.
"Change of Control" means the occurrence of any of the following
events: (i)(A) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), other than the Permitted Holders, is or
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall
3
be deemed to have beneficial ownership of all shares that such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of shares of Voting Stock
representing the right to vote more than 45% of the general voting power (the
"Voting Power") under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of the Company (irrespective of whether
or not at the time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency) and (B) the
Permitted Holders own less than 50% of the Voting Power; (ii) during any period
of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors (together with any new directors whose
election to such Board of Directors or whose nomination for election by the
stockholders of the Company, was approved by a vote of 66 2/3% of the members of
the Board of Directors then still in office who were either members of the Board
of Directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute at least
two-thirds of such Board of Directors then in office; (iii) the Company
consolidates with or merges with or into any Person or conveys, transfers or
leases all or substantially all of its assets to any Person, or any corporation
consolidates with or into the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company is changed into
or exchanged for cash, securities or other property, other than any such
transaction (X) where the outstanding Voting Stock of the Company is not changed
or exchanged at all (except to the extent necessary to reflect a change in the
jurisdiction of incorporation of the Company) or (Y) where (A) the outstanding
Voting Stock of the Company is changed into or exchanged for (x) Voting Stock of
the surviving corporation or the Company which is not Redeemable Capital Stock
or (y) cash, securities and other property (other than Capital Stock of the
surviving corporation) in an amount which could be paid by the Company as a
Restricted Payment as described under Section 1009 (and such amount shall be
treated as a Restricted Payment subject to the provisions in this Indenture
described under Section 1009) and (B) no "person" or "group" other than the
Permitted Holders owns immediately after such transaction, directly or
indirectly, more than 45% of the total Voting Power of the surviving corporation
or the Permitted Holders own 50% or more of the total Voting Power of the
surviving corporation; or (iv) the Company is liquidated or dissolved or adopts
a plan of liquidation or dissolution other than in a transaction which complies
with the provisions described under Article Eight.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if, at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
4
"Company" means International Controls Corp., a Florida corporation,
until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
President or a Vice President (regardless of Vice Presidential designation), and
by any one of its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated Fixed Charge Coverage Ratio" of any Person means, for
any period, the ratio of (a) the sum of Consolidated Net Income, Consolidated
Interest Expense, Consolidated Income Tax Expense and Consolidated Non-Cash
Charges deducted in computing Consolidated Net Income (Loss), in each case for
such period, of such Person and its Consolidated Subsidiaries on a Consolidated
basis, all determined in accordance with GAAP to (b) the sum of (I) Consolidated
Interest Expense of such Person for such period and (II) the product of (x) all
cash dividends (including the payment of accreted or accumulated dividends) paid
on any Preferred Stock of such Person during such period times (y) a fraction,
the numerator of which is one and the denominator of which is one minus the then
current combined Federal, state and local statutory income tax rate (but not
less than zero) of such Person, expressed as a decimal, in each case, on a
Consolidated basis and in accordance with GAAP; PROVIDED that (i) in making such
computation, the Consolidated Interest Expense attributable to interest on any
Indebtedness computed on a PRO FORMA basis and (A) bearing a floating interest
rate shall be computed as if the rate in effect on the date of computation had
been the applicable rate for the entire period and (B) which was not outstanding
during the period for which the computation is being made but which bears, at
the option of the Company, a fixed or floating rate of interest, shall be
computed by applying, at the option of such Person, either the fixed or floating
rate, and (ii) in making such computation, the Consolidated Interest Expense of
such Person attributable to interest on any Indebtedness under a revolving
credit facility computed on a PRO FORMA basis shall be computed based upon the
average daily balance of such Indebtedness during the applicable period.
"Consolidated Income Tax Expense" means for any period, as applied to
any Person, the provision for federal, state, local and foreign income taxes of
such Person and its Consolidated Subsidiaries for such period as determined in
accordance with GAAP.
"Consolidated Interest Expense" of any Person means, without
duplication, for any period, as applied to any Person, the sum of (a) the
interest expense of such Person and its Consolidated Subsidiaries for such
period, on a Consolidated basis, including, without limitation, (i) amortization
of debt discount, (ii) the net cost under Interest Rate Agreements (including
amortization of discounts), and (iii) the interest
5
portion of any deferred payment obligation plus (b) the interest expense
attributable to Capital Lease Obligations paid, accrued and/or scheduled to be
paid or accrued by such Person during such period in each case as determined in
accordance with GAAP.
"Consolidated Net Income (Loss)" of any Person means, for any period,
the Consolidated net income (loss) of such Person and its Consolidated
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such Consolidated net income (or loss), by
excluding, without duplication, (i) all extraordinary gains and losses, (ii) the
portion of net income (or loss) of such Person and its Consolidated Subsidiaries
allocable to minority interests in unconsolidated Persons to the extent that
cash dividends or distributions have not actually been received by such Person
or one of its Consolidated Subsidiaries, (iii) net income (or loss) of any
Person combined with such Person or any of its Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of combination,
(iv) any gain or loss, net of taxes, realized upon the termination of any
employee pension benefit plan, (v) aggregate net gains (less all fees and
expenses relating thereto) in respect of dispositions of assets other than in
the ordinary course of business, (vi) the net income of any Subsidiary to the
extent that the declaration of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulations applicable to that
Subsidiary or its stockholders and (vii) any gain arising from the acquisition
of any securities, or the extinguishment, under GAAP, of any Indebtedness of
such Person.
"Consolidated Net Worth" means, with respect to any Person, the
Consolidated stockholders' equity (excluding Redeemable Capital Stock) of such
Person and its Subsidiaries, as determined in accordance with GAAP.
"Consolidated Non-Cash Charges" of any Person means, for any period,
the aggregate depreciation, amortization and other non-cash charges of such
Person and its Consolidated Subsidiaries for such period, as determined in
accordance with GAAP (excluding any non-cash charge which requires an accrual or
reserve for cash charges for any future period).
"Consolidation" means, with respect to any Person, the consolidation
of the accounts of such Person and each of its subsidiaries if and to the extent
the accounts of such Person and each of its subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP. The term
"Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution
6
of this Indenture is located at 140 Broadway, 12th Floor, New York, New York
10005, Attention: Corporate Trust Department.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness
under the New Credit Facility, the Senior Notes and the Senior Note Indenture
and (ii) any other Senior Indebtedness which, at the time of determination, has
an aggregate principal amount outstanding, together with commitments to lend
additional amounts of at least $40 million and is specifically designated in the
instrument evidencing such Senior Indebtedness or the agreement under which such
Senior Indebtedness arises as "Designated Senior Indebtedness" by the Company.
"Disinterested Director" means, with respect to any transaction or
series of related transactions, a member of the Board of Directors who does not
have any material direct or indirect financial interest in or with respect to
such transaction or series of related transactions.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied,
which are in effect on the date of this Indenture.
"Guarantee" means the guarantee by any Guarantor of the Indenture
Obligations.
"Guaranteed Debt" of any Person means, without duplication, all
Indebtedness of any other Person referred to in the definition of Indebtedness
contained in this Section guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (ii) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss, (iii) to
supply funds to, or in any other manner invest in, the debtor (including any
agreement to pay for property or services without requiring that such property
be received
7
or such services be rendered), (iv) to maintain working capital or equity
capital of the debtor, or otherwise to maintain the net worth, solvency or other
financial condition of the debtor or (v) otherwise to assure a creditor against
loss; PROVIDED that the term "guarantee" shall not include endorsements for
collection or deposit, in either case in the ordinary course of business.
"Guarantor" means any guarantor of the Indenture Obligations.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any Person, without duplication,
(i) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities arising in the ordinary course of business, but
including, without limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit issued under letter of credit
facilities, acceptance facilities or other similar facilities and in connection
with any agreement to purchase, redeem, exchange, convert or otherwise acquire
for value any Capital Stock of such Person, or any warrants, rights or options
to acquire such Capital Stock, now or hereafter outstanding, (ii) all
obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property), but excluding trade payables arising in the ordinary course
of business, (iv) all obligations under Interest Rate Agreements of such Person
(except for obligations which have been included in the Consolidated Net Income
of such Person other than as Consolidated Interest Expense), (v) all Capital
Lease Obligations of such Person, (vi) all Indebtedness referred to in clauses
(i) through (v) above of other Persons and all dividends of other Persons, the
payment of which is secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien, upon or
with respect to property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness, (vii) all Guaranteed Debt of such
Person, (viii) all Redeemable Capital Stock valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends, and (ix) any amendment, supplement, modification, deferral, renewal,
extension, refunding or refinancing of any Indebtedness of the types referred to
in clauses (i) through (viii) above. For purposes hereof, the "maximum fixed
repurchase price" of any Redeemable Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable 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
8
measured by, the Fair Market Value of such Redeemable Capital Stock, such fair
market value to be determined in good faith by the Board of Directors of such
Person.
"Indenture" means this instrument as originally executed (including
all exhibits and schedules thereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company and any
other obligor under this Indenture or under the Securities, including any
Guarantor, to pay principal of, premium, if any, and interest when due and
payable, and all other amounts due or to become due under or in connection with
this Indenture, the Securities and the performance of all other obligations to
the Trustee and the Holders of the Securities under this Indenture and the
Securities, according to the terms thereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and/or other types of
interest rate hedging agreements from time to time.
"Investment" means, with respect to any Person, directly or
indirectly, any advance, loan (including guarantees), or other extension of
credit 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, acquisition or ownership by such Person of any
Capital Stock, bonds, notes, debentures or other securities issued or owned by,
any other Person and all other items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"Material Subsidiary" means any Subsidiary of the Company (a) revenues
attributable to which for the then most recently completed four fiscal quarters
constituted 2% or more of the Consolidated revenues of the Company or (b) the
assets of which at the end of such period constituted 2% of the Consolidated
assets of the Company at the end of such period.
9
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein provided
or as provided in this Indenture, whether at Stated Maturity, the "Offer Date"
or any redemption date and whether by declaration of acceleration, Change of
Control Offer in respect of a Change of Control, Offer in respect of an Asset
Sale, call for redemption or otherwise.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale by any
Person, the proceeds thereof in the form of cash or cash equivalents including
payments in respect of deferred payment obligations when received in the form
of, or stock or other assets when disposed for, cash or cash equivalents (except
to the extent that such obligations are financed or sold with recourse to the
Company or any Subsidiary) net of (i) brokerage commissions and other reasonable
fees and expenses (including fees and expenses of counsel and investment
bankers) related to such Asset Sale, (ii) provisions for all taxes payable as a
result of such Asset Sale, (iii) payments made to retire Indebtedness where
payment of such Indebtedness is secured by the assets or properties the subject
of such Asset Sale, (iv) amounts required to be paid to any Person (other than
the Company or any Subsidiary) owning a beneficial interest in the assets
subject to the Asset Sale and (v) appropriate amounts to be provided by the
Company or any 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 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, all as
reflected in an Officers' Certificate delivered to the Trustee and (b) with
respect to any issuance or sale of Capital Stock or options, warrants or rights
to purchase Capital Stock, or debt securities or Capital Stock that have been
converted into or exchanged for Capital Stock, as referred to under Section
1009, the proceeds of such issuance or sale in the form of cash or cash
equivalents, net of attorney's fees, accountant's fees and brokerage,
consultation, underwriting and other fees and expenses actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"New Credit Facility" means the Loan Agreement, dated as of ,
1994, among International Controls Corp., Great Dane Trailers, Inc., Great Dane
Trailers Nebraska, Inc., Great Dane Trailers Tennessee, Inc., Great Dane Los
Angeles, Inc., Checker Motors Corporation, Checker Motors Co., L.P., South
Charleston Stamping & Manufacturing Company, NBD Bank, N.A., as Agent, and the
lenders party thereto, as such agreement may be amended, renewed, extended,
substituted, refinanced, restructured, replaced, supplemented or otherwise
modified from time to time (including, without limitation, any successive
renewals, extensions, substitutions, refinancings, restructurings, replacements,
supplementations or other modifications of the foregoing).
10
"Non-payment Default" means any event (other than a Payment Default)
the occurrence of which entitles one or more Persons to accelerate the maturity
of any Designated Senior Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President (regardless of Vice Presidential
designation), and by the Treasurer, Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or the Trustee unless an independent
counsel is required pursuant to the terms of this Indenture, and who shall be
acceptable to the Trustee.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; PROVIDED, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor reasonably satisfactory to the Trustee has been
made;
(c) Securities, except to the extent provided in Sections 402 and
403, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Four; and
(d) Securities paid pursuant to Section 306 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof reasonably satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands the Securities are
valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company, any Guarantor, or any other obligor upon the Securities or any
Affiliate of the Company, any Guarantor, or such other obligor shall be
disregarded and deemed not to be Outstanding,
11
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes, to the reasonable
satisfaction of the Trustee, the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company, any Guarantor or any other
obligor upon the Securities or any Affiliate of the Company, any Guarantor or
such other obligor.
"Pari Passu Indebtedness" means any Indebtedness of the Company that
is PARI PASSU in right of payment to the Securities.
"Paying Agent" means any Person authorized by the Company to pay the
principal, premium, if any, or interest on any Securities on behalf of the
Company.
"Payment Default" means any default in the payment of principal,
premium, if any, or interest, on any Designated Senior Indebtedness, whether at
maturity or otherwise.
"Permitted Holders" means (i) David R. Markin, Martin L. Solomon,
Allan R. Tessler and Wilmer J. Thomas, Jr. or any one of them, (ii) any trusts
created for the benefit of the persons described in clause (i) or members of any
such person's immediate family; and (iii) in the event of the incompetence or
death of any of the persons described in clause (i), such person's estate,
executor, administrator, committee or other personal representatives or
beneficiaries.
"Permitted Indebtedness" means the following:
(i) Indebtedness of the Company or any Subsidiary (including
Indebtedness in respect of which the Company and one or more Subsidiaries are
co-obligors) under the New Credit Facility in an aggregate principal amount not
to exceed (a) $50 million under any term loan portion thereof less the amount of
any permanent repayment of Indebtedness thereunder plus (b) the amount of the
Borrowing Base calculated as of the date of incurrence of such Indebtedness
(with letters of credit being deemed to have a principal amount equal to the
maximum potential liability thereunder) under any revolving credit agreement
portion thereof;
(ii) Indebtedness of the Company pursuant to the Securities;
(iii) Indebtedness of the Company or any Subsidiary outstanding on
the date of this Indenture and listed on Schedule I hereto;
(iv) Indebtedness (a) of the Company owing to a Subsidiary or
(b) of a Wholly Owned Subsidiary owing to the Company or another Wholly
12
Owned Subsidiary (which for purposes of this clause (iv) shall include SCSM
(as defined below) so long as the Company beneficially owns, directly or
indirectly, at least 90% of the outstanding capital stock of SCSM); PROVIDED
that any such Indebtedness is made pursuant to an intercompany note in the
form attached as an exhibit to this Indenture and, in the case of Indebtedness
of the Company owing to a Subsidiary, is subordinated in right of payment from
and after such time as the Securities shall become due and payable (whether at
Stated Maturity, upon acceleration or otherwise) to the payment and
performance of the Company's obligations under the Securities; PROVIDED,
FURTHER, that (x) any disposition, pledge or transfer of any such Indebtedness
to a Person (other than the Company or a Wholly Owned Subsidiary and other
than a pledge of any such intercompany note to the agent bank under the New
Credit Facility in accordance with the terms of the New Credit Facility as in
effect on the date of this Indenture) shall be deemed to be an incurrence
of such Indebtedness by the obligor not permitted by this clause (iv) and
(y) any transaction pursuant to which any Wholly Owned Subsidiary, which has
Indebtedness owing to the Company or any other Wholly Owned Subsidiary, ceases
to be a Wholly Owned Subsidiary shall be deemed to be the incurrence of
Indebtedness by the Company or such other Wholly Owned Subsidiary that is not
permitted by this clause (iv);
(v) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any
Indebtedness described in clauses (i), (ii) and (iii) of this definition of
"Permitted Indebtedness," including any successive refinancings so long as the
aggregate principal amount of Indebtedness represented thereby is not
increased by such refinancing plus the lesser of (I) the stated amount of any
premium or other payment required to be paid in connection with such a
refinancing pursuant to the terms of the Indebtedness being refinanced or (II)
the amount of premium or other payment actually paid at such time to refinance
the Indebtedness, plus, in either case, the amount of expenses of the Company
incurred in connection with such refinancing and such refinancing does not
reduce or advance the Average Life to Stated Maturity or the Stated Maturity
of such Indebtedness;
(vi) guarantees by the Company or any Subsidiary of a line of
credit of Checker Taxi Association, Inc. in an aggregate principal amount
outstanding not to exceed at any given time $1 million;
(vii) guarantees of any Subsidiary made in accordance with the
provisions of Section 1013 or Section 1015;
(viii) guarantees by Subsidiaries of Indebtedness of third parties
incurred in the ordinary course of business consistent with past practice in an
aggregate principal amount outstanding not to exceed at any given time $15
million;
(ix) earned but unpaid compensation of present and future
directors and executive officers of either the Company or any of its
Subsidiaries; and
13
(x) Indebtedness of the Company and any Subsidiary (including
indebtedness in respect of which the Company and one or more Subsidiaries are
co-obligers) in addition to that described in paragraphs (i) through (ix) of
this definition of "Permitted Indebtedness" in an aggregate principal amount
outstanding not to exceed at any given time $25 million.
"Permitted Investment" means (i) Investments in any Wholly Owned
Subsidiary or Investments by the Company or any Subsidiary in a Person, if as a
result of such Investment (a) such Person becomes a Wholly Owned Subsidiary or
(b) such Person is merged or consolidated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or any
Wholly Owned Subsidiary; (ii) Investments in the Securities; (iii) Indebtedness
of the Company or a Subsidiary described under clause (iv), (vi), (vii) or
(viii) of the definition of "Permitted Indebtedness"; (iv) Temporary Cash
Investments; (v) Investments in existence on the date of this Indenture; and
(vi) Investments made by American Country Insurance Company ("Country"), an
Illinois corporation, or any other Subsidiary in the ordinary course of the
insurance business and in accordance with the statutes and governmental
regulations regulating its affairs in its domestic jurisdiction.
"Permitted Junior Securities" means (so long as the effect of any
exclusion employing this definition is not to cause the Securities to be treated
in any case or proceeding or similar event described in clauses (a), (b) or (c)
of Section 1202 as part of the same class of claims as the Senior Indebtedness
or any class of claims PARI PASSU with, or senior to, the Senior Indebtedness,
for any payment or distribution) equity securities or subordinated securities of
the Company or any successor corporation provided for by a plan of
reorganization or readjustment that, in the case of any such subordinated
securities, are subordinated at least to the same extent that the Securities are
subordinated to the payment of all Senior Indebtedness then outstanding;
PROVIDED that (1) if a new corporation results from such reorganization or
readjustment, such corporation assumes any Senior Indebtedness not paid in full
in cash or cash equivalents in connection with such reorganization or
readjustment and (2) the rights of the holders of such Senior Indebtedness are
not, without the consent of such holders, altered by such reorganization or
readjustment.
"Permitted Liens" means the following:
(i) any Lien existing, or provided for under arrangements
existing, as of the date of this Indenture;
(ii) any Lien arising by reason of (1) any judgment, decree or
order of any court or other governmental authority, if appropriate legal
proceedings which may have been duly initiated for the review of such judgment,
decree or order shall not have been finally terminated or the period within
which such proceedings
14
may be initiated shall not have expired; (2) taxes, assessments or similar
charges not yet delinquent or which are being contested in good faith;
(3) security for the payment of workers' compensation, unemployment insurance,
other social security benefits or other insurance-related obligations (including
but not limited to in respect of deductibles, self-insured retention amounts and
premiums and adjustments thereto); (4) deposits or pledges in connection with
bids, tenders, leases and contracts (other than contracts for the payment of
money); (5) zoning restrictions, easements, licenses, reservations, provisions,
covenants, conditions, waivers, restrictions on the use of property or minor
irregularities of title (and with respect to leasehold interests, mortgages,
obligations, liens and other encumbrances incurred, created, assumed or
permitted to exist and arising by, through or under a landlord or owner of the
leased property, with or without consent of the lessee), none of which
materially impairs the use of any parcel of property material to the operation
of the business of the Company and its Subsidiaries taken as a whole or the
value of such property for the purpose of such business; (6) deposits or pledges
to secure public or statutory obligations, progress payments, surety and appeal
bonds or other obligations of like nature incurred in the ordinary course of
business; (7) certain surveys, exceptions, title defects, encumbrances,
easements, reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph or telephone lines or other similar purposes or zoning
or other restrictions as to the use of real property not materially interfering
with the ordinary conduct of the business of the Company and its Subsidiaries
taken as a whole; or (8) operation of law in favor of landlords, mechanics,
carriers, warehousemen, materialmen, laborers, employees, suppliers or the like,
incurred in the ordinary course of business for sums which are not yet
delinquent or are being contested in good faith by negotiations or by
appropriate proceedings which suspend the collection thereof;
(iii) any Lien securing Acquired Indebtedness created prior to
(and not created in connection with or in contemplation of) the incurrence of
such Indebtedness by the Company or any Subsidiary, which Indebtedness is
permitted under the provisions of Section 1008;
(iv) any Lien securing Indebtedness incurred under the New Credit
Facility;
(v) any Lien on the collateral securing Indebtedness incurred
under the Senior Notes and the Senior Note Indenture;
(vi) any Lien created by Subsidiaries to secure Indebtedness of
such Subsidiaries to the Company;
(vii) any Lien securing Purchase Money Obligations and Capital
Lease Obligations incurred pursuant to the provisions of Section 1008;
15
(viii) any Lien securing Indebtedness incurred pursuant to
paragraph (x) of the definition of Permitted Indebtedness;
(ix) any Lien securing Permitted Subsidiary Indebtedness;
(x) any Lien in favor of the agent bank under the New Credit
Facility securing the intercompany note issued pursuant to paragraph (iv) of the
definition of Permitted Indebtedness; and
(xi) any extension, renewal, refinancing or replacement, in whole
or in part, of any Lien described in the foregoing clauses (i), (iii) and (v) so
long as (1) the amount of security is not increased thereby, (2) the aggregate
amount of Indebtedness or other obligations secured by the Lien after such
extension, renewal, refinancing or replacement does not exceed the aggregate
amount of the Indebtedness or other obligations secured by the existing Lien
prior to such extension, renewal, refinancing or replacement plus an amount
equal to the lesser of (a) the stated premium required to be paid in connection
with such an extension, renewal, refinancing or replacement pursuant to the
terms of the Indebtedness or (b) the amount of any premium actually paid by the
Company to accomplish such extension, renewal, refinancing or replacement and
(3) the Indebtedness secured by such Lien (other than Permitted Indebtedness) is
permitted under the provisions of Section 1008.
"Permitted Subsidiary Indebtedness" means Indebtedness of the
Subsidiaries of the Company in the aggregate principal amount outstanding not to
exceed $25 million at any given time under any agreement providing for
subsidized financing from any federal or state governmental agency.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivisions thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for a mutilated
Security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Preferred Stock" means, with respect to any Person, any Capital Stock
of any class or classes (however designated) which is preferred as to the
payment of dividends or distributions, or as to the distribution of assets upon
any voluntary or
16
involuntary liquidation or dissolution of such Person, over Capital Stock of any
other class in such Person.
"Prospectus" means the prospectus, dated _______, 1994, first used to
confirm sales of the Securities, included in the Company's registration
statement on Form S-1 (File No. 033-52255) under the Securities Act.
"Public Offering" means an underwritten initial public offering of
Qualified Capital Stock (other than Preferred Stock) of the Company pursuant to
a registration statement that has been declared effective by the Commission
pursuant to the Securities Act which results in gross cash proceeds to the
Company of not less than $25 million.
"Purchase Money Obligation" means any Indebtedness secured by a Lien
on assets related to the business of the Company or its Subsidiaries, and any
additions and accessions thereto, which are purchased by the Company or any
Subsidiary at any time after the Securities are issued; PROVIDED, that (i) the
security agreement or conditional sales or other title retention contract
pursuant to which the Lien on such assets is created (collectively, a "Purchase
Money Security Agreement") shall be entered into within 90 days after the
purchase or substantial completion of the construction of such assets and shall
at all times be confined solely to the assets so purchased or acquired, any
additions and accessions thereto and any proceeds therefrom, (ii) at no time
shall the aggregate principal amount of the outstanding Indebtedness secured
thereby be increased, except in connection with the purchase of additions and
accessions thereto and except in respect of fees and other obligations in
respect of such Indebtedness and (iii)(A) the aggregate outstanding principal
amount of Indebtedness secured thereby (determined on a per asset basis in the
case of any additions and accessions) shall not at the time such Purchase Money
Security Agreement is entered into exceed 100% of the purchase price to the
Company or any Subsidiary of the assets subject thereto or (B) the Indebtedness
secured thereby shall be with recourse solely to the assets so purchased or
acquired, any additions and accessions thereto and any proceeds therefrom.
"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms or by the terms of any security into which it is convertible or
exchangeable or otherwise, is, or upon the happening of an event or passage of
time would be, required to be redeemed prior to any Stated Maturity of the
principal of the Securities or is redeemable at the option of the holder thereof
at any time prior to any such Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to any such Stated Maturity
at the option of the holder thereof.
"Redemption Date" when used with respect to any Security to be
redeemed means the date fixed for such redemption by or pursuant to this
Indenture.
17
"Redemption Price" when used with respect to any Security to be
redeemed means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means ___________ or ___________ (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee means any
officer assigned to the Corporate Trust Office or the agent of the Trustee
appointed hereunder, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, or any other officer or assistant
officer of the Trustee or the agent of the Trustee appointed hereunder to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Payment" has the meaning specified in Section 1009.
"Securities" has the meaning specified in the first recital of this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" has the meaning specified in Section 305.
"Security Registrar" means the office or agency designated pursuant to
Section 1002 where Securities may be presented for registering any transfers
pursuant to this Indenture.
"Senior Indebtedness" means the principal of, premium, if any, and
interest (including interest accruing after the filing of a petition initiating
any proceeding under any state, federal or foreign bankruptcy laws whether or
not allowed as a claim in such proceeding) on any Indebtedness of the Company
(other than as otherwise provided in this definition), whether outstanding on
the date of this Indenture or thereafter created, incurred or assumed, and
whether at any time owing, actually or contingent, 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 include
the principal of, premium, if any, and interest (including interest accruing
after the filing of a petition initiating any proceeding under any state,
federal or foreign bankruptcy laws whether or not allowed as a claim in such
proceeding) on all Indebtedness of the Company from time to time owed under the
New Credit Facility and the Senior Notes and the Senior Note Indenture;
PROVIDED, HOWEVER, that any Indebtedness under any refinancing, refunding, or
replacement of the New Credit Facility or the Senior Notes shall not constitute
Senior Indebtedness to the extent that the Indebtedness thereunder is by its
express terms subordinate in right of payment to any other Indebtedness of the
Company. Notwithstanding the foregoing,
18
"Senior Indebtedness" shall not include (i) Indebtedness evidenced by the
Securities, (ii) Indebtedness that is subordinate or junior in right of payment
to any Indebtedness of the Company, (iii) Indebtedness which when incurred, and
without respect to any election under Section 1111(b) of the Bankruptcy Law, is
without recourse to the Company, (iv) Indebtedness which is represented by
Redeemable Capital Stock, (v) any liability for foreign, federal, state, local
or other taxes owed or owing by the Company, (vi) Indebtedness of the Company
to a Subsidiary or any other Affiliate of the Company or any of such Affiliate's
subsidiaries and (vii) that portion of any Indebtedness which at the time of
incurrence is issued in violation of the provisions of Section 1008 of this
Indenture.
"Senior Note Indenture" means the Indenture dated as of ________, 1994
among the Company and First Fidelity Bank, National Association, as trustee, as
such agreement may be amended, renewed, extended, substituted, refinanced,
replaced, supplemented or otherwise modified from time to time (including,
without limitation, any successive renewals, extensions, substitutions,
refinancings, restructurings, supplementations or other modifications of the
foregoing).
"Senior Notes" means the Company's ___% Senior Secured Notes
due 2002 issued pursuant to the Senior Note Indenture.
"Separation Date" has the meaning set forth in the Warrant Agreement.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Indebtedness or any
installment of interest thereon, means the dates specified in such Indebtedness
as the fixed date on which the principal of such Indebtedness or such
installment of interest, as the case may be, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
subordinated in right of payment to the Securities.
"Subsidiary" means any Person a majority of the equity ownership or
the Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"Temporary Cash Investments" means (i) any evidence of Indebtedness,
maturing not more than one year after the date of acquisition, issued by the
United States of America, or an instrumentality or agency thereof, and
guaranteed fully as to principal, premium, if any, and interest by the United
States of America, (ii) any certificate of deposit or money market deposit,
maturing not more than one year after the date of acquisition, issued by, or
time deposit of, a commercial banking institution that is a
19
member of the Federal Reserve System, including without limitation the Trustee
or an Affiliate of the Trustee, and that has combined capital and surplus and
undivided profits of not less than $250,000,000, whose debt has a rating, at the
time as of which any investment therein is made, of "P-1" (or higher) according
to Moody's Investors Service, Inc. ("Moody's") or any successor rating agency,
or "A-1" or higher according to Standard & Poor's Corporation ("S&P") or any
successor rating agency, (iii) commercial paper, maturing not more than 180 days
after the date of acquisition, issued by a corporation (other than an Affiliate
or Subsidiary of the Company but including the Trustee or an Affiliate of the
Trustee) organized and existing under the laws of the United States of America
with a rating, at the time as of which any investment therein is made, of "P-1"
(or higher) according to Moody's or any successor rating agency or "A-1" (or
higher) according to S&P or any successor rating agency, and (iv) any repurchase
obligation with a term of not more than 90 days for direct obligations of the
United States of America entered into with a bank meeting the qualifications
described in clause (ii) above.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Voting Stock" means stock of the class or classes pursuant to which
the holders thereof have in respect of a corporation, the general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of a corporation (irrespective of whether or not
at the time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Warrant" means any Warrant (as defined in the Warrant Agreement) from
time to time outstanding pursuant to the Warrant Agreement.
"Warrant Agent" means American Stock Transfer & Trust Company, until a
successor Warrant Agent shall have become such pursuant to the applicable
provisions of the Warrant Agreement and, thereafter, such successor.
"Warrant Agreement" means the Warrant Agreement, dated as of
__________, 1994 between the Company and the Warrant Agent.
"Wholly Owned Subsidiary" means a corporate Subsidiary all the
outstanding Capital Stock (other than directors' qualifying shares) or a
partnership Subsidiary all the equity interest of which is owned by the Company
or another Wholly Owned Subsidiary.
20
Section 102. OTHER DEFINITIONS.
Defined
Term in Section
------ ----------
"Affiliate Transaction" 1010
"Act" 105
"Change of Control Offer" 1014
"Change of Control Purchase Date" 1014
"Change of Control Purchase Notice" 1014
"Change of Control Purchase Price: 1014
"covenant defeasance" 403
"Defaulted Interest" 307
"Defeasance" 402
"Defeasance Redemption Date" 404
"Defeased Securities" 401
"Excess Proceeds" 1011
"Excess Security Amount" 1011
"Initial Blockage Period" 1203
"Offer" 1011
"Offer Date" 1011
"Offered Price" 1011
"Pari Passu Debt Amount" 1011
"Pari Passu Offer" 1011
"Payment Blockage Period" 1203
"Purchase Date" 1011
"Required Filing Dates" 1017
"SCSM" 1009
"Securities Amount" 1011
"Senior Representative" 1203
"Surviving Entity" 801
"U.S. Government Obligations" 404
Section 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company, any Guarantor and
any other obligor on the Securities shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture (including any covenants compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with, and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents,
21
certificates and/or opinions is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company, any Guarantor
or other obligor of the Securities may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such
certificate or opinion may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company, any Guarantor or other obligor of the Securities stating that
the information with respect to such factual matters is in the possession of the
Company, any Guarantor or other obligor of the Securities, unless such counsel
knows that the certificate or opinion or representations with respect to such
matters are erroneous. Opinions of Counsel required to be delivered to the
Trustee may have qualifications
22
customary for opinions of the type required and counsel delivering such Opinions
of Counsel may rely on certificates of the Company or government or other
officials customary for opinions of the type required, including certificates
certifying as to matters of fact, including that various financial covenants
have been complied with.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate of affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security or the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company or any Guarantor in reliance thereon, whether or not notation of
such action is made upon such Security.
23
Section 106. NOTICES, ETC., TO TRUSTEE, THE COMPANY
AND ANY GUARANTOR.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or any Guarantor or
any other obligor of the Securities shall be sufficient for every purpose
hereunder if made, given, furnished or filed, in writing, to or with the Trustee
at 140 Broadway, 12th Floor, New York, New York 10005, Attention: Corporate
Trust Department, or at any other address previously furnished in writing to the
Holders, the Company, any Guarantor or any other obligor of the Securities by
the Trustee; or
(b) the Company or any Guarantor shall be sufficient for every
purpose (except as provided in Section 501(c)) hereunder if in writing and
mailed, first-class postage prepaid or delivered by recognized overnight
courier, to the Company or such Guarantor addressed to it at 2016 North Pitcher
Street, Kalamazoo, Michigan 49007, Attention: President, or at any other
address previously furnished in writing to the Trustee by the Company.
Section 107. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice when mailed to a Holder in the aforesaid
manner shall be conclusively deemed to have been received by such Holder whether
or not actually received by such Holder. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be reasonably satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
24
Section 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and any
Guarantors shall bind their successors and assigns, whether so expressed or not.
Section 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities 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 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAWS PRINCIPLES THEREOF).
Section 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal or
25
premium, if any, need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity and no
interest shall accrue with respect to such payment for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, to the next succeeding Business Day.
Section 115. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
Each Guarantee, if any, of a non-U.S. Subsidiary will provide (i) that
the Guarantor has irrevocably designated and appointed The CT Corporation System
("CT") as its authorized agent to receive and forward on its behalf service of
any and all process which may be served in any suit, action or proceeding
arising out of or relating to this Indenture, the Securities or any Guarantee
for actions brought under federal or state Securities laws or for actions
brought by the Trustee in any federal or state court in New York, (ii) that
service of process upon CT (or any successor) at its office at 1633 Broadway,
New York, New York 10019 shall be deemed in every respect effective service of
process upon the Guarantor in any such suit, action or proceeding and shall be
taken and held to be valid personal service upon the Guarantor and (iii) that
the Guarantor has irrevocably submitted to the jurisdiction of the federal and
state courts in New York for any such suit, action or proceeding. Said
designation and appointment shall be irrevocable. The Trustee is not the agent
for service of process for any such actions. To the extent that the Guarantor
may acquire any immunity from jurisdiction of any court or from any legal
process with respect to itself or its property, any such Guarantor will in the
Guarantee irrevocably waive such immunity in respect of its obligations under
this Indenture, the Securities or any Guarantee to the extent permitted by law
(it being understood that such waiver shall not be required to be made until
such time as the Guarantor shall become a Guarantor).
ARTICLE TWO
SECURITY FORMS
Section 201. FORMS GENERALLY.
The Securities and the Trustee's certificate of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange, any organizational
document or governing instrument or applicable law or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their execution of the Securities. Any portion of the text
26
of any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Securities
may be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Section 202. FORM OF FACE OF SECURITY.
The form of the face of the Securities shall be substantially as
follows:
27
INTERNATIONAL CONTROLS CORP.
--------------------
___% SENIOR SUBORDINATED NOTES due 2004
CUSIP No.
No. ____________ $____________
INTERNATIONAL CONTROLS CORP., a Florida corporation (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________ or registered assigns, the principal sum of _____________________
United States dollars on ______, 2004, at the office or agency of the Company
referred to below, and to pay interest thereon from ______, 1994 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on ________ and_____ , in each year, commencing
____ , 1994 at the rate of __% per annum, in United States dollars, until the
principal hereof is paid or duly provided for.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be _______ or _______ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid, or duly provided for, and interest on such defaulted
interest at the then applicable interest rate borne by the Securities, to the
extent lawful, shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose, in such currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; PROVIDED, HOWEVER, that payment of interest may be
made at the option of the Company by check mailed to the address of the Person
entitled thereto as such address shall appear on the
28
Security Register. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
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.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PRINCIPLES THEREOF).
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
INTERNATIONAL CONTROLS CORP.
By:
---------------------------------
[Title]
Attest:
[SEAL]
- ---------------------------------
Secretary
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All Securities issued prior to the Separation Date shall have printed
or overprinted thereon the following legends:
This Security is initially issued as part of an issuance of Units,
each consisting of $1,000 principal amount of [ ]% Senior Subordinated
Notes due 2004 (the "Notes") of International Controls Corp. (the
"Company") and [ ] Warrants of the Company expiring _______, 1999 (the
"Warrants"), each representing the right to purchase ____ shares of common
stock, par value $0.01 per share of the Company (the "Common Stock"),
subject to adjustment as provided in the Warrant Agreement (as defined
below). Until [ , 1994] (or such earlier date as may be
determined in accordance with the Warrant Agreement)(the "Separation
Date"), (i) this Security shall evidence beneficial ownership of one Unit
for each $1,000 principal amount of the Notes registered in the name of the
Holder below and represented by this certificate and (ii) beneficial
ownership of the Notes and the Warrants issued as part of each Unit
represented hereby shall not be separately transferable. Until the
Separation Date, the Units represented hereby shall be transferable only by
the transfer of this Security on the Security Register maintained by the
Company pursuant to the Indenture. On the Separation Date, the Notes and
the Warrants comprising each Unit shall separate and thereafter the
Warrants shall be represented by separate Warrant Certificates to be issued
and delivered by the Warrant Agent in accordance with the terms of the
Warrant Agreement. From and after the Separation Date, this Security shall
represent beneficial ownership of the Notes only and the Notes and the
Warrants shall be independently transferable pursuant to the terms of the
Indenture and the Warrant Agreement, respectively. The "Warrant Agreement"
means the Warrant Agreement, dated as of __________, 1994, by and between
the Company and American Stock Transfer & Trust Company, as Warrant Agent.
By accepting a Security bearing this endorsement, each Holder of this
Security shall be bound by all of the terms and provisions of the Warrant
Agreement (a copy of which is available on request to the Company or the
Warrant Agent) as fully and effectively as if such Holder had signed the
same.
ELECTION TO EXERCISE
The undersigned registered holder of this Security hereby irrevocably
elects to exercise [ ] Warrants (evidenced by Warrant Certificates
deposited with the Warrant Agent the beneficial ownership of which is
evidenced by this Security) and in payment of the aggregate Exercise Price
(as defined in the Warrant Agreement), the undersigned herewith tenders
payment in cash or by certified or official bank or bank cashier's check in
the amount of $[ ], at the rate of $[ ] for each share of
Common Stock into which each Warrant is
30
exercisable. The undersigned requests that a certificate representing the
shares of Common Stock issuable upon exercise of such Warrants be
registered in the name of [ ] whose address is [ ]
and that such certificate be delivered to [ ] whose address is
[ ]. Any cash payments to be made in lieu of a
fractional share should be made to [ ] whose address is
[ ] and the check representing payment thereof should be
delivered to [ ] whose address is [ ].
Dated:
Name of Holder of this Security: ___________________________
Address: ___________________________
___________________________
Signature: ___________________________
Note: The above signature must correspond with the name as written upon the
face of this Security in every particular, without alteration or
enlargement whatever and if the certificate representing the shares of
Common Stock or any principal amount of this Security or the associated
Warrants which are not being exercised is to be registered in a name
other than that in which this Security is registered, or if any cash
payment in lieu of a fractional share is to be made to a person other
than the registered holder of this Security, the signature of the Holder
hereof must be guaranteed as provided in the Warrant Agreement.
Section 203. FORM OF REVERSE OF SECURITY.
The form of the reverse of the Securities shall be substantially as
follows:
This Security is one of a duly authorized issue of Securities of the
Company designated as its __% Senior Subordinated Notes due 2004 (herein called
the "Securities"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to $100,000,000, which may be
issued under an indenture (herein called the "Indenture") dated as of _______,
1994, between the Company and Marine Midland Bank, as trustee (herein called
the "Trustee", which term includes any successor Trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a)
the entire Indebtedness on this Security and (b) certain restrictive covenants
and related
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Defaults and Events of Default, in each case upon compliance with certain
conditions set forth therein.
The Indebtedness evidenced by the Securities is, to the extent and in
the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture), whether Outstanding on the date of the Indenture or thereafter,
and this Security is issued subject to such provisions. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee his attorney-in-fact for
such purpose.
The Securities are subject to redemption, as a whole or in part, at
any time on or after _____, 1999 at the option of the Company upon not less than
30 nor more than 60 days' prior notice by first-class mail, at the election of
the Company, in amounts of $1,000 or an integral multiple of $1,000 at the
following redemption prices (expressed as a percentage of the principal amount)
if redeemed during the 12-month period beginning ______ of the years indicated
below:
Year Redemption Price
------ ------------------
1999 %
2000 %
2001 %
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest, if any, to the Redemption Date, all as provided in
the Indenture (subject to the right of Holders of record on relevant record
dates to receive interest due on an Interest Payment Date).
In addition, up to 25% of the aggregate principal amount of the
Securities Outstanding on the date of the Indenture will be redeemable prior to
_____, 1997, at the option of the Company, within 120 days of a Public Offering
from the net proceeds of such sale, in amounts of $1,000 or an integral multiple
thereof, at a redemption price equal to ___% of the principal amount, together
with accrued and unpaid interest, if any, to the date of redemption (subject to
the right of Holders of record on relevant record dates to receive interest due
on an Interest Payment Date); PROVIDED that $___ in aggregate principal amount
of the Securities remains Outstanding immediately following such redemption.
If less than all of the Securities are to be redeemed in the case of
any of the foregoing redemptions, the Trustee shall select the Securities or the
portion thereof to be
32
redeemed pro rata, by lot or by any other method the Trustee shall deem fair and
reasonable.
Upon the occurrence of a Change in Control, each Holder may require
the Company to repurchase all or a portion of such Holder's Securities at a
purchase price in cash equal to 101% of the principal amount thereof, together
with accrued and unpaid interest to the date of repurchase.
Under certain circumstances, in the event the Net Cash Proceeds
received by the Company from any Asset Sale, which proceeds are not used to
prepay Senior Indebtedness or invested in properties or assets used in the
businesses of the Company or reasonably related thereto, exceeds a specified
amount the Company will be required to apply such proceeds to the repayment of
the Securities and certain Indebtedness ranking PARI PASSU to the Securities.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant record date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the date of redemption.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a specified
percentage in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Security.
33
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company or any
Guarantor (in the event such Guarantor is obligated to make payments in respect
of the Securities), which is absolute and unconditional, to pay the principal
of, premium, if any, and interest on this Security at the times, place, and
rate, and in the currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof in the Security Register for all purposes, whether or not this Security
is overdue, and neither the Company, the Trustee nor any agent shall be affected
by notice to the contrary.
All terms used in this Security which are defined in the Indenture and
not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
34
Section 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned Indenture.
Date:
Marine Midland Bank, National Association,
As Trustee
By:__________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
Section 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $100,000,000 in
principal amount of Securities, except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 303, 304, 305, 306, 906, 1011, 1014 or
1108.
The Securities shall be known and designated as the "__% Senior
Subordinated Notes due 2004" of the Company. The Stated Maturity of the
Securities shall be ______, 2004, and the Securities shall bear interest at the
rate of __% per annum from ______, 1994 or from the most recent Interest Payment
Date to which interest has been paid, as the case may be, payable on __________,
1994 and semi-annually thereafter on _________, and __________, in each year,
until the principal thereof is paid or duly provided for.
The principal of, premium, if any, and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose; PROVIDED, HOWEVER, that at the
option of the Company interest may be paid by check mailed to addresses of the
Persons entitled thereto as such addresses shall appear on the Security
Register. The initial such office shall be 140 Broadway, 12th Floor, New York,
New York 10005, Attention: Corporate Trust Department, until the Company shall
maintain some other office or agency for such purpose and shall give the
35
Trustee written notice of the location thereof. The Trustee shall be the Paying
Agent until such time as the Company shall designate a successor in accordance
with the terms of this Indenture.
The Securities shall be redeemable as provided in Article Eleven.
At the election of the Company, the entire indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Four.
Section 302. DENOMINATIONS.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices on the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and make available for delivery such
Securities as provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
36
In case the Company shall be consolidated or merged with or into any
other Person or shall sell, assign, convey, transfer, lease or otherwise dispose
of all or substantially all of its properties and assets to any Person, and the
successor Person resulting from such consolidation or surviving such merger, or
into which the Company shall have been merged, or the Person which shall have
received such assets and properties pursuant to any such sale, assignment,
conveyance, transfer, lease or other disposition as aforesaid, shall have
executed an indenture supplemental hereto with the Trustee pursuant to Article
Eight, any of the Securities authenticated or delivered prior to such
consolidation, merger, sale, assignment, conveyance, transfer, lease or other
disposition may, from time to time, at the request of the successor Person, be
exchanged for other Securities executed in the name of the successor Person with
such changes in phraseology and form as may be appropriate, but otherwise in
substance of like tenor as the Securities surrendered for such exchange and of
like principal amount; and the Trustee, upon Company Request of the successor
Person, shall authenticate and make available for delivery Securities as
specified in such request for the purpose of such exchange. If Securities shall
at any time be authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon registration of
transfer of any Securities, such successor Person, at the option of the Holders
but without expense to them, shall provide for the exchange of all Securities at
the time Outstanding for Securities authenticated and delivered in such new
name.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities on behalf of the Trustee. Unless limited by
the terms of such 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 any Security Registrar or Paying
Agent to deal with the Company and its Affiliates.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender
37
for cancellation of any one or more temporary Securities the Company shall
execute and the Trustee shall authenticate and make available for delivery in
exchange therefor a like principal amount of definitive Securities of authorized
denominations. Until so exchanged the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities.
Section 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee, or such other office as the Trustee may designate, a register (the
register maintained in such office being herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as the
Security Registrar may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby initially
appointed Security Registrar for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 1002, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denomination or denominations, of a like
aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer,
or for exchange or redemption shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than
38
exchanges pursuant to this Section 305 or Section 303, 304, 906, 1011, 1014 or
1108 not involving any transfer.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the mailing of a notice of redemption of the Securities selected
for redemption under Section 1104 and ending at the close of business on the day
of such mailing, or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
Securities being redeemed in part.
The Securities and the Warrants will not be separately exchangeable or
transferable prior to the Separation Date, at which time the Securities shall
become separately exchangeable and transferable. Prior to the Separation Date,
the Securities will be exchangeable and transferable only together with the
Warrants related thereto as set forth in the Warrant Agreement.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (a) any mutilated Security is surrendered to the Trustee, or (b)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company, each Guarantor, if any, and the Trustee, such security or indemnity, in
each case, as may be required by each of them to save each of them harmless,
then, in the absence of notice to the Company, any Guarantor or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its written request the Trustee shall authenticate and make
available for delivery, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a replacement Security of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company and the Guarantors, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
39
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
in the Security Register at the close of business on the Regular Record Date for
such interest payment.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the then applicable interest rate borne by the Securities,
to the extent lawful (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the Regular Record Date; and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in Subsection (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date (not less
than 30 days after such notice) of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
Subsection provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company in writing of such
Special Record Date. In the name and at the expense of the Company, the Trustee
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each
Holder at the address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following
Subsection (b).
40
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, if, after written notice given by the Company to the
Trustee of the proposed payment pursuant to this Subsection, such payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. PERSONS DEEMED OWNERS.
The Company, any Guarantor, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name any Security is registered in
the Security Register as the owner of such Security for the purpose of receiving
payment of principal of, premium, if any, and (subject to Section 307) interest
on such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and neither the Company, any Guarantor, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
Section 309. CANCELLATION.
All Securities surrendered for payment, purchase, redemption,
registration of transfer or exchange shall be delivered to the Trustee and, if
not already cancelled, shall be promptly cancelled by it. The Company and any
Guarantor may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company or
such Guarantor may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be returned to the Company. The Trustee
shall provide the Company a list of all Securities that have been cancelled from
time to time as requested by the Company.
Section 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
41
Section 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 402 or Section 403 be
applied to all of the Outstanding Securities (the "Defeased Securities"), upon
compliance with the conditions set forth below in this Article Four.
Section 402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 401 of the option applicable
to this Section 402, the Company and any Guarantor, if any, shall be deemed to
have been discharged from its obligations with respect to the Defeased
Securities on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Defeased Securities, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 405 and the other Sections of
this Indenture referred to in (a) and (b) 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, and,
upon written request, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of Defeased Securities to
receive solely from the trust fund described in Section 404 and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, and interest on such Securities when such payments are due, (b) the
Company's obligations with respect to such Defeased Securities under Sections
304, 305, 306, 1002 and 1003, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, including, without limitation, the
Trustee's rights under Section 606, and (d) this Article Four. Subject to
compliance with this Article Four, the Company may
42
exercise its option under this Section 402 notwithstanding the prior exercise of
its option under Section 403 with respect to the Securities.
Section 403. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 401 of the option applicable
to this Section 403, each of the Company and any Guarantor, if any, shall be
released from its obligations under any covenant or provision contained in
Sections 1005 through 1018 and the provisions of Article Eight and Article
Twelve shall not apply, with respect to the Defeased Securities on and after the
date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and the Defeased Securities shall thereafter be deemed to be not
"Outstanding" for the purposes 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. For this purpose, such covenant defeasance means that, with respect
to the Defeased Securities, the Company and each Guarantor, if any, may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or Article, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 501(c), but,
except as specified above, the remainder of this Indenture and such Defeased
Securities shall be unaffected thereby.
Section 404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
402 or Section 403 to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 609 who shall agree to comply with the provisions of this Article Four
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (a) United States dollars in
an amount, or (b) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment,
money in an amount, or (c) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (or other qualifying
trustee), to pay and discharge and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge the principal of, premium, if
any, and interest on the Defeased Securities on the Stated Maturity of such
principal or installment of principal or interest (or on any
43
date after ______, 1999 (such date being referred to as the "Defeasance
Redemption Date"), if when exercising either defeasance or covenant defeasance,
the Company has delivered to the Trustee an irrevocable notice to redeem all of
the Outstanding Securities on the Defeasance Redemption Date); PROVIDED that the
Trustee shall have been irrevocably instructed to apply such United States
dollars or the proceeds of such U.S. Government Obligations to said payments
with respect to the Securities. For this purpose, "U.S. Government Obligations"
means securities that are (i) direct obligations of the United States of America
for the timely payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian
with respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt, PROVIDED
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 402, the Company shall
have delivered to the Trustee an independent Opinion of Counsel in the United
States stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable United States federal income
tax law or the judicial interpretation thereof, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities will not recognize income, gain or loss for United States
federal income tax purposes as a result of such defeasance and will be subject
to United States federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(3) In the case of an election under Section 403, the Company shall
have delivered to the Trustee an independent Opinion of Counsel in the United
States to the effect that the Holders of the Outstanding Securities will not
recognize income, gain or loss for United States federal income tax purposes as
a result of such covenant defeasance and will be subject to United States
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred.
(4) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsection 501(g) and (h)
are
44
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(5) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities to have a conflicting interest with respect to any
securities of the Company or any Guarantor.
(6) Such 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 Guarantor is
a party or by which it is bound.
(7) The Company shall have delivered to the Trustee an independent
Opinion of Counsel in the United States to the effect that, (x) the trust funds
established pursuant to this Article will not be subject to any rights of
holders of any Indebtedness of the Company, including, without limitation, those
arising under this Indenture (other than the rights of the Holders of the
Securities to receive the principal of, premium, if any, and interest on, the
Securities), and (y) after the 91st day following the deposit, the trust funds
established pursuant to this Article will not be subject to the effect of any
applicable United States bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally. (For the limited purpose of the Opinion
of Counsel referred to in this clause (7), such Opinion may contain an
assumption that the conclusions contained in a customary solvency letter by a
nationally recognized appraisal firm, dated as of the date of the deposit and
taking into account such deposit, are accurate as of such date, PROVIDED that
such solvency letter is also addressed and delivered to the Trustee.)
(8) 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 of the Securities or any Guarantee over the other
creditors of the Company or any Guarantor with the intent of defeating,
hindering, delaying or defrauding creditors of the Company, any Guarantor or
others.
(9) No event or condition shall exist that would prevent the Company
from making payments of the principal of, premium, if any, and interest on the
Securities on the date of such deposit or at any time during the period ending
on the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period).
(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an independent Opinion of Counsel, each stating that all
conditions precedent (other than conditions requiring the passage of time)
provided for relating to either the defeasance under Section 402 or the covenant
defeasance under Section 403 (as the case may be) have been complied with as
contemplated by this Section 404.
45
Opinions of Counsel required to be delivered under this Section may
have qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of the Company or
government or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact, including that various
financial covenants have been complied with.
Section 405. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
United States dollars and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee--collectively
for purposes of this Section 405, the "Trustee") pursuant to Section 404 in
respect of the Defeased 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
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Defeased Securities.
Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any United States dollars or U.S. Government Obligations held by it as
provided in Section 404 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 defeasance or covenant
defeasance. In the event of an error in any calculation resulting in a
withdrawal hereunder, the Company shall deposit an amount equal to the amount
erroneously withdrawn as promptly as practicable after becoming aware of such
error.
Section 406. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or U.S. Government Obligations in accordance with Section 402 or 403, as
the case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no
46
deposit had occurred pursuant to Section 402 or 403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such United
States dollars or U.S. Government Obligations in accordance with Section 402 or
403, as the case may be; PROVIDED, HOWEVER, that if the Company makes any
payment to the Trustee or Paying Agent of principal, premium, if any, or
interest on any Security following the reinstatement of its obligations, the
Trustee or Paying Agent shall promptly pay any such amount to the Holders of the
Securities and the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall occasioned by the provisions of Article Twelve or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
An Event of Default will occur under this Indenture if:
(a) there shall be a default in the payment of any interest on any
Security when it becomes due and payable, and such default shall continue for a
period of 30 days;
(b) there shall be a default in the payment of the principal of (or
premium, if any, on) any Security when and as the same shall become due and
payable (at its maturity, upon acceleration, optional or mandatory redemption,
required repurchase or otherwise);
(c) (i) there shall be a default in the performance, or breach, of
any covenant or agreement of the Company or any Guarantor under this Indenture
(other than a default in the performance, or breach, of a covenant or agreement
which is specifically dealt with in paragraphs (a) or (b) or in clauses (ii),
(iii) and (iv) of this paragraph (c)) and such default or breach shall continue
for a period of 60 days after written notice has been given, by certified mail,
(A) to the Company by the Trustee or (B) to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities; (ii) there shall be a default in the performance or breach of the
provisions described in Article Eight; (iii) the Company shall have failed to
make or consummate a Change of Control Offer in accordance with the provisions
of Section
47
1014; or (iv) the Company shall have failed to make or consummate an Offer in
accordance with the provisions of Section 1011;
(d) any default in the payment of principal, premium, if any, or
interest on any Indebtedness shall have occurred under any agreements,
indentures or instruments under which the Company or any Subsidiary then has
outstanding Indebtedness which aggregate in excess of $5 million when the same
shall become due and payable and continuation of such default after any
applicable grace period and, if not already matured at its final maturity in
accordance with its terms, shall have been accelerated;
(e) one or more judgments, orders or decrees for the payment of money
in excess of $5 million, either individually or in the aggregate, shall be
entered against the Company or any Subsidiary or any of their respective
properties and shall not be discharged and either (i) enforcement proceedings
shall have been commenced upon such judgment, order or decree or (ii) there
shall have been a period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of an appeal or otherwise,
shall not be in effect;
(f) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Company or
any Material Subsidiary in an involuntary case or proceeding under any
applicable Bankruptcy Law or (ii) a decree or order adjudging the Company or any
Material Subsidiary bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
Material Subsidiary under any applicable Federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Material Subsidiary or of any substantial
part of its property, or ordering the winding up or liquidation of its affairs,
and any such decree or order for relief shall continue to be in effect, or any
such other decree or order shall be unstayed and in effect, for a period of 60
consecutive days; or
(g) (i) the Company or any Material Subsidiary commences a voluntary
case or proceeding under any applicable Bankruptcy Law or any other case or
proceeding to be adjudicated bankrupt or insolvent, (ii) the Company or any
Material Subsidiary consents to the entry of a decree or order for relief in
respect of the Company or such Material Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, (iii) the Company or any
Material Subsidiary files a petition or answer or consent seeking reorganization
or relief under any applicable Federal or state law, (iv) the Company or any
Material Subsidiary (A) consents to the filing of such petition or the
appointment of, or taking possession by, a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or such
Material Subsidiary or of any substantial part of its property, (B) makes an
assignment for the benefit of creditors or (C) admits in writing its inability
to pay its debts generally as they
48
become due or (v) the Company or any Material Subsidiary takes any corporate
action in furtherance of any such actions in this paragraph (g).
The Company shall deliver to the Trustee within five business days
after the occurrence thereof, written notice, in the form of an Officers'
Certificate, of any Default, its status and what action the Company is taking or
proposes to take with respect thereto.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than as specified in paragraphs (f) and
(g) of Section 501) shall occur and be continuing, the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Securities then
Outstanding may declare by notice to the Company (or the Company and the Trustee
if notice is given by the Holders) the Securities due and payable immediately at
their principal amount together with accrued and unpaid interest, if any, to the
date the Securities shall have become due and payable and thereupon the Trustee
may, at its discretion, proceed to protect and enforce the rights of the Holders
of Securities by appropriate judicial proceeding. If an Event of Default
specified in paragraph (f) or (g) of Section 501 occurs and is continuing, then
all the Securities shall IPSO FACTO become and be immediately due and payable,
in an amount equal to the principal amount of the Securities, together with
accrued and unpaid interest, if any, to the date the Securities become due and
payable, without any declaration or other act on the part of the Trustee or any
Holder.
Notwithstanding the provisions of Section 513, at any time after a
declaration of acceleration, but before a judgment or decree for payment of the
money due has been obtained by the Trustee, the Holders of at least a majority
in aggregate principal amount of Securities Outstanding, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel,
(ii) all overdue interest on all Securities,
(iii) the principal of and premium, if any, on any Securities
which have become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Securities, and
(iv) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities; and
49
(b) all Events of Default, other than the non-payment of principal of
the Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon provided in Section 513.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company and any Guarantor covenant that if
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of or premium, if
any, on any Security at the Stated Maturity thereof, the Company and any such
Guarantor will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and premium, if any, and interest, with interest upon
the overdue principal and premium, if any, and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Securities; and, in addition thereto, 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.
If the Company or any Guarantor, as the case may be, fails to pay such
amounts forthwith upon such demand, the Trustee, in its own name and as trustee
of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid and may prosecute such proceeding to judgment or
final decree, and may enforce the same against the Company or any Guarantor or
any other obligor upon the Securities and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company
or any Guarantor or any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture or the Guarantees, if any, by such appropriate
private or judicial proceedings as the Trustee shall deem most effectual to
protect and enforce such rights, including, seeking recourse against any
Guarantor pursuant to the terms of any Guarantee, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein or therein, or to enforce any other proper
remedy, including, without limitation, seeking recourse against any Guarantor
pursuant to
50
the terms of a Guarantee, or to enforce any other proper remedy, subject however
to Section 512.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor, including each
Guarantor, if any, upon the Securities or the property of the Company or of such
other obligor, if any, or their creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of principal, and
premium, if any, and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
such judicial proceeding, 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 the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 606.
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 thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
and as trustee of an express
51
trust, and any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article
or through any proceeding or any arrangement or restructuring in
anticipation or in lieu of any proceeding contemplated by this Article shall
be applied, subject to applicable law, in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money
on account of principal, premium, if any, or interest, upon presentation of
the Securities and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities for principal, premium, if any, and interest, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal, premium, if any, and interest; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Company, provided that all sums due and owing to the
Holders and the Trustee have been paid in full as required by this
Indenture.
Section 507. LIMITATION ON SUITS.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
52
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Guarantee to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner provided in this Indenture or any Guarantee
and for the equal and ratable benefit of all the Holders.
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right on the terms stated herein, which is
absolute and unconditional, to receive payment of the principal of, premium,
if any, and (subject to Section 307) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or the Guarantees, if any,
and such proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder, then and in
every such case the Company, each of the Guarantors, if any, the Trustee and
the Holders shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
53
Section 510. 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 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by
this Article 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 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities shall 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,
PROVIDED that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture or any Guarantee;
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(c) subject to Section 602, the Trustee shall have the right to
decline any such direction if the Trustee, in good faith shall, by a
Responsible Officer, determine that the proceeding so directed would involve
the Trustee in personal liability.
Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past Default under this Indenture and its consequences,
except a Default
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(a) in the payment of the principal of, premium, if any, or
interest on any Security, or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security.
Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Securities, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of, premium, if any, or
interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
Section 515. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and the Guarantors, if any, covenants (to the
extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury or other law wherever
enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company or any Guarantor from paying all or any portion of the
principal of, premium, if any, or interest on the Securities contemplated
herein or in the Securities or which may affect the covenants or the
performance of this Indenture; and each of the Company and the Guarantors,
if any, (to the extent that it may lawfully do so) 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.
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ARTICLE SIX
THE TRUSTEE
Section 601. NOTICE OF DEFAULTS.
Within 60 days after the occurrence of any Default, the Trustee
shall transmit by mail to all Holders, as their names and addresses appear
in the Security Register, notice of such Default hereunder known to the
Trustee, unless such Default shall have been cured or waived; PROVIDED,
HOWEVER, that, except in the case of a Default in the payment of the
principal of, premium, if any, or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as a trust
committee of Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders.
Section 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Trust Indenture Act Sections
315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel confirmed in writing within five Business Days of the
rendering thereof or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or thereby in
compliance with such request or direction;
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(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture other
than any liabilities arising out of the negligence of the Trustee;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper
or document unless, subject to Section 602(d) above, requested in writing to
do so by the Holders of not less than a majority in aggregate principal
amount of the Securities then Outstanding; PROVIDED that, if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such investigation
shall be paid by the Company or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Company upon demand; PROVIDED, FURTHER, the
Trustee in its discretion may make such further inquiry or investigation
into such facts or matters as it may deem fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) 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;
(i) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate (and, without limiting
the generality of the foregoing, the Trustee may rely on an Officers'
Certificate that a guarantee by a Subsidiary meets the requirements of
Section 1015);
(j) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
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(k) the Trustee shall not be charged in the knowledge of any
Default or Event of Default with respect to the Securities unless either (i)
a Responsible Officer of the Trustee shall have actual knowledge of the
Default or Event of Default or (ii) written notice of such Default or Event
of Default shall have been given to the Trustee in accordance with the terms
of this Indenture.
Section 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITIONS
OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that
the statements made by it in a Statement of Eligibility on Form T-1 supplied
to the Company are true and accurate subject to the qualifications set forth
therein. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 604. TRUSTEE AND AGENTS MAY HOLD SECURITIES;
COLLECTIONS; ETC.
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities, with the same rights it would have if it
were not the Trustee, Paying Agent, Security Registrar or such other agent
and, subject to Trust Indenture Act Sections 310 and 311, may otherwise deal
with the Company and receive, collect, hold and retain collections from the
Company with the same rights it would have if it were not the Trustee,
Paying Agent, Security Registrar or such other agent.
Section 605. MONEY HELD IN TRUST.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Except for funds or securities
deposited with the Trustee pursuant to Article Four, the Trustee shall
invest all moneys received by the Trustee, until used or applied as herein
provided, in Temporary Cash Investments only in accordance with a Company
Order.
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Section 606. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS
PRIOR CLAIM.
The Company covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) and the
Company covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any and all losses, liabilities, taxes, assessments or other
governmental charges (other than taxes applicable to the Trustee's compensation
hereunder) or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including
enforcement of this Section 606 and also including any liability which the
Trustee may incur as a result of failure to withhold, pay or report any tax,
assessment or other governmental charge, and the costs and expenses of defending
itself against or investigating any claim of liability in connection with the
exercise of its powers and duties hereunder. The obligations of the Company
under this Section to compensate and indemnify the Trustee and each predecessor
Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute an additional obligation
hereunder and shall survive the satisfaction and discharge of this Indenture.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 606, except with respect to
funds held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(g) or Section 501(h), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency
or other similar law.
All such payments and reimbursements shall bear interest on the
amount outstanding from time to time at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal to
the prime rate announced by the Trustee from time to time.
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Section 607. CONFLICTING INTERESTS.
The Trustee shall comply with the provisions of Section 310(b) of
the Trust Indenture Act.
Section 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Trust Indenture Act Section 310(a)(1) and
which shall have a combined capital and surplus of at least $100,000,000,
and have a Corporate Trust Office or an agent in The City of New York to the
extent there is such an institution eligible and willing to serve. If the
Trustee does not have a New York office, the Trustee shall appoint an agent
in The City of New York to conduct any activities as contemplated by Section
1002 on behalf of the Trustee to be performed in The City of New York. The
Trustee may not rescind any such agency without the consent of the Company
which shall not be unreasonably withheld. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 610.
(b) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice thereof to the Company. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor Trustee by written instrument executed by authority of the Board of
Directors of the Company, a copy of which shall be delivered to the resigning
Trustee and a copy to the successor Trustee. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may, or
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
Such court may thereupon, after such notice, if any, as it may deem proper,
appoint a successor Trustee.
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(c) The Trustee may be removed at any time by an Act of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Trust Indenture Act Section 310(b) after written request therefor
by the Company or by any Holder who has been a bona fide Holder of
a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 608
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, the Holder of any Security who has
been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a
successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders of the Securities and accepted appointment in the manner hereinafter
provided, the Holder of any Security who has been a bona fide Holder for at
least six months may, subject to Section 514, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage prepaid,
to the Holders of Securities as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office or agent hereunder.
Section 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee as if
originally named as Trustee hereunder; but, nevertheless, on the written
request of the Company or the successor Trustee, upon payment of its charges
then unpaid, such retiring Trustee shall, pay over to the successor Trustee
all moneys at the time held by it hereunder and shall execute and deliver an
instrument transferring to such successor Trustee all such rights, powers,
duties and obligations. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights and
powers. Any Trustee ceasing to act shall, nevertheless, retain a prior
claim upon all property or funds held or collected by such Trustee or such
successor Trustee to secure any amounts then due such Trustee pursuant to
the provisions of Section 606.
No successor Trustee with respect to the Securities shall accept
appointment as provided in this Section 610 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under
the provisions of Trust Indenture Act Section 310(a) and this Article Six
and shall have a combined capital and surplus of at least $100,000,000 and
have a Corporate Trust Office or an agent selected in accordance with
Section 608 in The City of New York.
Upon acceptance of appointment by any successor Trustee as
provided in this Section 610, the Company shall give notice thereof to the
Holders of the Securities, by mailing such notice to such Holders at their
addresses as they shall appear on the Security Register. If the acceptance
of appointment is substantially contemporaneous with the resignation, then
the notice called for by the preceding sentence may be combined with the
notice called for by Section 609. If the Company fails to give such notice
within 10 days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be given at the expense of the
Company.
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Section 611. MERGER, CONVERSION, AMALGAMATION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated or amalgamated, or any corporation
resulting from any merger, conversion, amalgamation or consolidation to
which the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such corporation shall be
eligible under Trust Indenture Act Section 310(a) and this Article Sixth and
shall have a combined capital and surplus of at least $100,000,000 and have
a Corporate Trust Office or an agent selected in accordance with Section 608
in the City of New York, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases
such certificate shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of the Trustee
shall have; PROVIDED that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in
the name of any predecessor Trustee shall apply only to its successor or
successors by merger, amalgamation, conversion or consolidation.
Section 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or other obligor under the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
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(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
Section 702. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders in
accordance with Trust Indenture Act Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Trust Indenture Act Section 312.
Section 703. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities, the Trustee shall transmit by mail to
all Holders, as their names and addresses appear in the Security Register, as
provided in Trust Indenture Act Section 313(c), a brief report dated as of such
May 15 in accordance with and to the extent required by Trust Indenture Act
Section 313(a).
Section 704. REPORTS BY COMPANY AND ANY GUARANTOR.
The Company and any Guarantor shall:
(a) file with the Trustee, within 15 days after the Company or any
Guarantor, as the case may be, is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company or any Guarantor may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if
the Company or any Guarantor, as the case may be, is not required to file
information, documents or reports pursuant to either of said Sections, then it
shall file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic
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information, documents and reports which may be required pursuant to Section
13 of the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company, or any Guarantor, as the case may be, with the
conditions and covenants of this Indenture as may be required from time to
time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Trust
Indenture Act Section 313(c), such summaries of any information, documents
and reports required to be filed by the Company, or any Guarantor, as the
case may be, pursuant to Subsections (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, AMALGAMATION,
CONVEYANCE, TRANSFER OR LEASE
Section 801. COMPANY OR GUARANTOR MAY CONSOLIDATE, MERGE, ETC.,
ONLY ON CERTAIN TERMS.
(a) The Company shall not, in a single transaction or a series of
related transactions, consolidate with or merge with or into any other Person or
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or group of
affiliated Persons, or permit any of its Subsidiaries to enter into any such
transaction or transactions if such transaction or series of related
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Company and its Subsidiaries on a Consolidated basis to any other
Person or group of affiliated Persons, unless at the time and after giving
effect thereto:
(i) either (A) the Company shall be the continuing corporation
or (B) 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, conveyance, transfer, lease or disposition all or substantially all
of the properties and assets of the Company and its Subsidiaries on a
Consolidated basis (the "Surviving Entity") shall be a corporation duly
organized and validly existing under the laws of the United States of America,
any state thereof or the District of Columbia and such Person assumes by a
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supplemental indenture in a form reasonably satisfactory to the Trustee, all
the obligations of the Company under the Securities and this Indenture, and
this Indenture shall remain in full force and effect;
(ii) immediately before and immediately after giving effect
to such transaction on a PRO FORMA basis, no Default or Event of Default
shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction
on a PRO FORMA basis, the Consolidated Net Worth of the Company (or the
Surviving Entity if the Company is not the continuing obligor under this
Indenture) is equal to or greater than the Consolidated Net Worth of the
Company immediately prior to such transaction;
(iv) immediately before and immediately after giving effect
to such transaction on a PRO FORMA basis (on the assumption that the
transaction occurred on the first day of the four-quarter period immediately
prior to the consummation of such transaction with the appropriate
adjustments with respect to the transaction being included in such PRO FORMA
calculation), the Company (or the Surviving Entity if the Company is not the
continuing obligor under this Indenture) could incur $1.00 of additional
Indebtedness under the provisions of Section 1008 (other than Permitted
Indebtedness);
(v) each Guarantor, if any, unless it is the other party to
the transactions described above, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Person's obligations under
this Indenture and the Securities;
(vi) if any of the property or assets of the Company or any
of its Subsidiaries would thereupon become subject to any Lien, the
provisions of Section 1012 are complied with; and
(vii) the Company or the Surviving Entity shall have
delivered, or caused to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers' Certificate and an
Opinion of Counsel, each to the effect that such consolidation, merger,
transfer, sale, assignment, lease or other transaction and the supplemental
indenture in respect thereto comply with the provisions of this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
(b) Each Guarantor shall not, and the Company will not permit a
Guarantor to, in a single transaction or series of related transactions, merge
or consolidate with or into any other corporation (other than the Company or any
other Guarantor) or other entity, or sell, assign, convey, transfer, lease or
otherwise dispose of all or
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substantially all of its properties and assets on a Consolidated basis to
any entity (other than the Company or any other Guarantor) unless at the
time and after giving effect thereto:
(i) either (A) such Guarantor shall be the continuing
corporation or (B) the entity (if other than such Guarantor) formed by such
consolidation or into which such Guarantor is merged or the entity which
acquires by sale, assignment, conveyance, transfer, lease or disposition the
properties and assets of such Guarantor shall be a corporation duly
organized and validly existing under the laws of the United States, any
state thereof or the District of Columbia and shall expressly assume by a
supplemental indenture, executed and delivered to the Trustee, in a form
reasonably satisfactory to the Trustee, all the obligations of such
Guarantor under the Securities and this Indenture;
(ii) immediately before and immediately after giving effect
to such transaction on a PRO FORMA basis, no Default or Event of Default
shall have occurred and be continuing; and
(iii) such Guarantor shall have delivered to the Trustee,
in form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, conveyance, transfer, lease or disposition and
such supplemental indenture comply with this Indenture, and thereafter all
obligations of the predecessor shall terminate.
Section 802. SUCCESSOR SUBSTITUTED.
In the event of any transaction described in and complying with
the conditions listed in the immediately preceding paragraphs in which the
Company or any Guarantor is not the continuing corporation, the successor
Person formed or remaining shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or such Guarantor, as the
case may be, and the Company or such Guarantor, as the case may be, shall be
discharged from all obligations and covenants under this Indenture, the
Securities or such Guarantee, as the case may be; PROVIDED that in the case
of a transfer by lease, the predecessor shall not be released from the
payment of principal and interest on the Securities or such Guarantee, as
the case may be.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES AND AGREEMENTS WITHOUT
CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the
Guarantors, if any, when authorized by a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto or agreements or other instruments with respect to any
Guarantee, in form and substance satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the Company
or a Guarantor, and the assumption by any such successor of the covenants
of the Company or such Guarantor herein and in the Securities and in any
Guarantee;
(b) to add to the covenants of the Company or any Guarantor for
the benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or any Guarantor, as applicable, herein, in the
Securities or in any Guarantee;
(c) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein or in any Guarantee, or to make any other provisions with respect to
matters or questions arising under this Indenture, the Securities or any
Guarantee; PROVIDED, that, in each case, such provisions shall not adversely
affect the interests of the Holders;
(d) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(e) to add a Guarantor pursuant to the requirements of Sections
1013 or 1015;
(f) to evidence and provide the acceptance of the appointment of
a successor Trustee hereunder;
(g) to secure the Securities pursuant to the requirements of
Section 1012 or otherwise; or
(h) to mortgage, pledge, hypothecate or grant a security interest
in favor of the Trustee for the benefit of the Holders as additional
security for the payment and performance of the Indenture Obligations, in
any property or assets, including any which
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are required to be mortgaged, pledged or hypothecated, or in which a
security interest is required to be granted to the Trustee, pursuant to this
Indenture or otherwise.
Section 902. SUPPLEMENTAL INDENTURES AND AGREEMENTS WITH CONSENT
OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said
Holders delivered to the Company, each Guarantor, if any, and the Trustee,
the Company, and each Guarantor (if a party thereto) when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto or agreements or other instruments with respect to any
Guarantee in form and substance satisfactory to the Trustee for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of modifying in any manner the rights of
the Holders under this Indenture, the Securities or any Guarantee; PROVIDED,
FURTHER, that no such supplemental indenture, agreement or instrument shall,
without the consent of the Holder of each Outstanding Security affected
thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security or waive a default in the payment of
the principal of, or interest on any Security or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the coin or currency in which the principal of any
Security or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment after the Stated
Maturity thereof;
(b) amend, change or modify the obligation of the Company to make
and consummate a Change of Control Offer in the event of a Change of Control
in accordance with Section 1014 or make and consummate an Offer in
accordance with Section 1011, including, in each case, amending, changing or
modifying any of the definitions with respect thereto;
(c) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
Defaults hereunder and their consequences provided for in this Indenture or
with respect to any Guarantee;
(d) modify any of the provisions of this Section or Sections 513
and 1021, except to increase any such percentage of Outstanding Securities
required for such actions or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Security affected thereby; or
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(e) except as otherwise permitted under Article Eight, consent to
the assignment or transfer by the Company or any Guarantor of any of their
rights and obligations under this Indenture;
(f) amend or modify any of the provisions of this Indenture in
any manner which subordinates the Securities in right of payment to other
Indebtedness of the Company or which subordinates any Guarantee in right of
payment to other Indebtedness of such Guarantor; or
(g) consent to the release of any Collateral from the Lien
created by the Pledge Agreement or permit the creation of any Lien on the
Collateral except in each case in accordance with the terms of this
Indenture and the Pledge Agreement.
Upon the written request of the Company and each Guarantor, if
any, accompanied by a copy of a Board Resolution authorizing the execution
of any such supplemental indenture or Guarantee, and upon the filing with
the Trustee of evidence of the consent of Holders as aforesaid, the Trustee
shall join with the Company and each Guarantor in the execution of such
supplemental indenture or Guarantee.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture or Guarantee or agreement or instrument relating to any Guarantee,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES AND AGREEMENTS.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement or instrument permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to the Trust Indenture
Act Sections 315(a) through 315(d) and Section 602 hereof) shall be fully
protected in relying upon, an Opinion of Counsel and an Officers'
Certificate stating that the execution of such supplemental indenture,
agreement or instrument is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture, agreement or instrument which affects the Trustee's own rights,
duties or immunities under this Indenture, any Guarantee or otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
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Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may
be prepared and executed by the Company and each Guarantor, if any, and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
Section 907. RECORD DATE.
If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, 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 supplemental indenture,
agreement or instrument or any waiver, and shall promptly notify the Trustee
of any such record date. If a record date is fixed, those Persons who were
Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to consent to such supplemental indenture,
agreement or instrument or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date.
The record date shall be a date no more than 30 days prior to the first
solicitation of Holders generally in connection therewith and no later than
the date such solicitation is completed. No such consent shall be valid or
effective for more than 90 days after such record date and no action shall
be taken in respect of such consent after such 90 day period.
ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of,
premium, if any, and interest on the Securities in accordance with the terms
of the Securities and this Indenture.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in The City of New York, an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The
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office of the agent of the Trustee selected in accordance with Section 608
shall be such office or agency of the Company, unless the Company shall
designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any 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 office of the
agent of the Trustee described above and the Company hereby appoints such
agent as its agent to receive all such presentations, surrenders, notices
and demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes, and
may from time to time rescind such designation; 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 City of New York for
such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and any change in the location of any
such office or agency.
Section 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of, premium, if any, or
interest on any of the Securities, segregate and hold in trust for the
benefit of the Holders entitled thereto a sum sufficient to pay the
principal, premium, if any, or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its action or failure so to act.
If the Company is not acting as Paying Agent, the Company will, on
or before each due date of the principal of, premium, if any, or interest
on, any Securities, deposit with a Paying Agent a sum in same day funds
sufficient to pay the principal, premium, if any, or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium, if any, or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of such action
or any failure so to act.
If the Company is not acting as Paying Agent, the Company will
cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled
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thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(b) give the Trustee notice of any Default by the Company or any
of the Guarantors, if any, (or any other obligor upon the Securities) in the
making of any payment of principal, premium, if any, or interest;
(c) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with
the provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Security and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall there upon cease; PROVIDED, HOWEVER, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
the New York Times and The Wall Street Journal (national edition), notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be
repaid to the Company; PROVIDED FURTHER, HOWEVER, that if either the New York
Times or the Wall Street Journal (national edition) is not then published a
notice published in either shall be sufficient and if both shall not then be
published publication may be made in a newspaper of general circulation in the
State of New York.
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Section 1004. CORPORATE EXISTENCE.
Subject to Article Eight and Section 1014, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence.
Section 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, all taxes, assessments
and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, the failure to pay or discharge of which would have a material
adverse effect on the condition (financial or otherwise), earnings or business
affairs of the Company and its Subsidiaries taken as one enterprise; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment or governmental charge whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings properly instituted and diligently conducted and in
respect of which appropriate reserves (in the good faith judgment of management
of the Company) are being maintained in accordance with GAAP.
Section 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all material properties owned by the
Company or any Subsidiary or used or held for use in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order (ordinary wear and tear excepted) and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be consistent with sound
business practice and necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; PROVIDED, HOWEVER, that nothing in this Section shall prevent the
Company from discontinuing the maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct
of its business or the business of any Subsidiary and not reasonably
expected to have a material adverse effect on the ability of the Company to
perform its obligations hereunder.
Section 1007. INSURANCE.
The Company will at all times keep all of its and its
Subsidiaries' properties which are of an insurable nature insured with
insurers, believed by the Company to be responsible, against loss or damage
to the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties, except
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where the failure to do so would not reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), earnings
or business of the Company and its Subsidiaries, taken as a whole.
Section 1008. LIMITATION ON INDEBTEDNESS.
The Company will not, and will not permit any Subsidiary to,
create, issue, assume, guarantee, or otherwise in any manner become directly or
indirectly liable for or with respect to or otherwise incur (collectively,
"incur") any Indebtedness (other than Permitted Indebtedness but including any
Acquired Indebtedness) unless (i) such Indebtedness is Indebtedness of the
Company, Permitted Subsidiary Indebtedness or Acquired Indebtedness of a
Subsidiary and (ii) at the time of such incurrence the Consolidated Fixed Charge
Coverage Ratio for the Company for the four full fiscal quarters immediately
preceding such incurrence reflected on the Company's historical financial
statements is at least equal to 2.0:1.0 (after giving PRO FORMA effect to (a)
the incurrence of such Indebtedness and (if applicable) the application of the
net proceeds therefrom, including to refinance other Indebtedness, as if such
Indebtedness was incurred, and the application of such proceeds occurred, at the
beginning of such four- quarter period; (b) the incurrence, repayment or
retirement of any other Indebtedness by the Company and its Subsidiaries since
the first day of such four-quarter period as if such Indebtedness was incurred,
repaid or retired at the beginning of such four-quarter period (except that, in
making such computation, the amount of Indebtedness under any revolving credit
facility shall be computed based upon the average daily balance of such
Indebtedness during such four-quarter period); (c) in the case of Acquired
Indebtedness, the related acquisition (as if such acquisition had been
consummated on the first day of such four-quarter period); and (d) any
acquisition or disposition by the Company and its Subsidiaries of any company or
any business or any assets out of the ordinary course of business, whether by
merger, stock purchase or sale, or asset purchase or sale, or any related
repayment of Indebtedness, in each case since the first day of such four-quarter
period, as if such acquisition or disposition had been consummated on the first
day of such four-quarter period).
Section 1009. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any Subsidiary to,
directly or indirectly:
(i) declare or pay any dividend on, or make any distribution
to holders of, the Company's Capital Stock (other than dividends or
distributions payable in shares of the Company's Qualified Capital Stock or
in options, warrants or other rights to acquire such Qualified Capital
Stock);
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(ii) purchase, redeem or otherwise acquire or retire for
value, directly or indirectly, any Capital Stock of the Company or any
Capital Stock of any Affiliate of the Company (other than Capital Stock of
any Wholly Owned Subsidiary or Capital Stock held by the Company or any
Wholly Owned Subsidiary) or options, warrants or other rights to acquire
such Capital Stock;
(iii) make any principal payment on, or repurchase,
redeem, defease, retire or otherwise acquire for value, prior to any
scheduled principal payment, any sinking fund payment or maturity, any
Subordinated Indebtedness;
(iv) declare or pay any dividend or distribution on any
Capital Stock of any Subsidiary to any Person (other than with respect to
any Capital Stock held by the Company or any of its Wholly Owned
Subsidiaries);
(v) incur, create or assume any guarantee of Indebtedness of
any Affiliate of the Company (other than a Wholly Owned Subsidiary of the
Company); or
(vi) make any Investment in any Person (other than any
Permitted Investments);
(all of the foregoing payments described in paragraphs (i) through (vi)
above, other than any such action that is a Permitted Payment
(as defined below), collectively are referred to as "Restricted Payments")
unless at the time of and after giving effect to the proposed Restricted Payment
(the amount of any such Restricted Payment, if other than cash, as determined by
the Board of Directors, whose determination shall be conclusive and evidenced by
a Board Resolution), (1) no Default or Event of Default shall have occurred and
be continuing and such Restricted Payment shall not be an event which is, or
after notice or lapse of time or both, would be, an "event of default" under the
terms of any Indebtedness of the Company or its Subsidiaries; (2) immediately
before and immediately after giving effect to such transaction on a PRO FORMA
basis, the Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under the provisions described under Section 1008; and
(3) the aggregate amount of all such Restricted Payments (other than Permitted
Payments) declared or made after the date of this Indenture does not exceed the
sum of:
(A) 50% of the aggregate cumulative Consolidated Net
Income of the Company accrued on a cumulative basis during the period
beginning on the first day of the Company's fiscal quarter commencing after
the date of this Indenture and ending on the last day of the Company's last
fiscal quarter ending prior to the date of the Restricted Payment (or, if
such aggregate cumulative Consolidated Net Income shall be a loss, minus
100% of such loss);
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(B) the aggregate Net Cash Proceeds received after the
date of this Indenture by the Company from the issuance or sale (other than
to any of its Subsidiaries) of its Qualified Capital Stock or any options,
warrants or rights to purchase such Qualified Capital Stock of the Company
(except, in each case, to the extent such proceeds are used to purchase,
redeem or otherwise retire Capital Stock or Subordinated Indebtedness as set
forth below);
(C) the aggregate Net Cash Proceeds received after the
date of this Indenture by the Company (other than from any of its
Subsidiaries) upon the exercise of any options or warrants to purchase
Qualified Capital Stock of the Company; and
(D) the aggregate Net Cash Proceeds received after the
date of this Indenture by the Company from debt securities or Redeemable
Capital Stock that have been converted into or exchanged for Qualified
Capital Stock of the Company to the extent such debt securities or
Redeemable Capital Stock are originally sold for cash plus the aggregate Net
Cash Proceeds received by the Company at the time of such conversion or
exchange.
(b) Notwithstanding the foregoing, and in the case of paragraphs
(ii), (iii), (iv), (v), (vi), (vii) and (viii) below, so long as there is no
Default or Event of Default continuing, the foregoing provisions shall not
prohibit the following actions (each of paragraphs (i) through (ix) being
referred to as a "Permitted Payment"):
(i) the payment of any dividend or distribution within 60
days after the date of declaration thereof, if at such date of declaration
such payment would be permitted by the provisions of paragraph (a) of this
Section and such payment shall be deemed to have been paid on such date of
declaration for purposes of the calculation required by paragraph (a) of
this Section;
(ii) the repurchase, redemption or other acquisition or
retirement of any shares of Capital Stock of the Company in exchange for
(including any such exchange pursuant to the exercise of a conversion right
or privilege which in connection therewith cash is paid in lieu of the
issuance of fractional shares or scrip), or out of the Net Cash Proceeds of,
a substantially concurrent issue and sale for cash (other than to a
Subsidiary) of other Qualified Capital Stock of the Company; PROVIDED that
the Net Cash Proceeds from the issuance of such shares of Qualified Capital
Stock are excluded from clause (3)(B) of paragraph (a) of this Section;
(iii) any repurchase, redemption, defeasance, retirement
or acquisition for value or payment of principal of any Subordinated
Indebtedness in exchange for, or out of the net proceeds of, a substantially
concurrent issuance and sale
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for cash (other than to a Subsidiary) of any Qualified Capital Stock of the
Company; PROVIDED that the Net Cash Proceeds from the issuance of such
Qualified Capital Stock are excluded from clause (3)(B) of paragraph (a) of
this Section;
(iv) the repurchase, redemption, defeasance, retirement,
refinancing, acquisition for value or payment of principal of any Subordinated
Indebtedness (other than Redeemable Capital Stock) (a "refinancing") through the
issuance of new Subordinated Indebtedness of the Company; PROVIDED that any such
new Subordinated Indebtedness (1) shall be in a principal amount that does not
exceed the principal amount so refinanced (or, if such old Subordinated
Indebtedness provides for an amount less than the principal amount thereof to be
due and payable upon a declaration or acceleration thereof, then such lesser
amount as of the date of determination), plus the lesser of (I) the stated
amount of any premium or other payment required to be paid in connection with
such a refinancing pursuant to the terms of the Subordinated Indebtedness being
refinanced or (II) the amount of premium or other payment actually paid at such
time to refinance the Indebtedness, plus, in either case, the amount of expenses
of the Company incurred in connection with such refinancing; (2) has an Average
Life to Stated Maturity greater than the remaining Average Life to Stated
Maturity of the Securities; (3) has a Stated Maturity for its final scheduled
principal payment later than the Stated Maturity for the final scheduled
principal payment of the Securities; and (4) such new Subordinated Indebtedness
is expressly subordinated in right of payment to the Securities at least to the
same extent as the Subordinated Indebtedness to be refinanced;
(v) the repurchase, redemption, defeasance, retirement,
refinancing or acquisition for value (collectively, a "repurchase") of all
(but not less than all) the Company's Subordinated Discount Debentures due
January 1, 2006 and the Company's 12 3/4% Senior Subordinated Debentures due
2001, in each case, outstanding on the date of this Indenture in accordance
with the terms of the respective instruments governing the terms of such
respective Indebtedness for an aggregate consideration not to exceed $____
million (plus accrued and unpaid interest through the date of repurchase)
for all Subordinated Discount Debentures due January 1, 2006 repurchased and
$____ million (plus accrued and unpaid interest through the date of
repurchase) for all 12 3/4% Senior Subordinated Debentures due 2001
repurchased;
(vi) the repurchase of any Subordinated Indebtedness at a
purchase price not greater than 100% of the principal amount of such
Indebtedness pursuant to a provision similar to Section 1011 of this
Indenture; PROVIDED, that prior to such repurchase the Company has made the
Offer as provided in Section 1011 of this Indenture and has repurchased all
Securities validly tendered for payment in connection with such Offer;
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(vii) the repurchase of any Subordinated Indebtedness at
a purchase price not greater than 101% of the principal amount thereof in
the event of a Change of Control pursuant to a provision similar to Section
1014 of this Indenture; PROVIDED, that prior to such repurchase the Company
has made the Change of Control Offer as provided in Section 1014 of this
Indenture and has repurchased all Securities validly tendered for payment in
connection with such Change of Control Offer; and
(vii) (A) the payment by South Charleston Stamping and
Manufacturing Company ("SCSM") of any dividend or distribution on any of its
Capital Stock; PROVIDED that such payments are paid pro rata to all
shareholders and that the aggregate amount of any such payments paid to
shareholders (other than the Company and its Wholly Owned Subsidiaries)
within any fiscal year does not exceed 10% of the Consolidated Net Income of
SCSM for the previous fiscal year.
Section 1010. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, make any loan, advance, guarantee or capital
contribution to, or for the benefit of, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or for the benefit of, or
purchase or lease any property or assets from, or enter into or amend, or
increase the payments by the Company or any of its Subsidiaries under or
otherwise alter the terms of, any contract, agreement or understanding with, or
for the benefit of, any Affiliate of the Company, including pay any compensation
paid to Affiliates of the Company that are officers or employees of the Company
(each, an "Affiliate Transaction") unless (i) such Affiliate Transaction is in
writing and on terms which are fair and reasonable to the Company or such
Subsidiary, as the case may be, and are at least as favorable to the Company or
such Subsidiary as the terms which could be obtained by the Company or such
Subsidiary, as the case may be, in a comparable transaction made on an
arm's-length basis with a Person who is not such an Affiliate of the Company,
(ii) with respect to any Affiliate Transaction involving aggregate payments in
excess of $2 million, the Company delivers an Officers' Certificate to the
Trustee certifying that such Affiliate Transaction complies with clause (i)
above and that either (A) such Affiliate Transaction has been approved by a
majority of the Disinterested Directors of the Board of Directors who shall have
determined in good faith that such Affiliate Transaction is on terms which are
fair and reasonable to the Company or such Subsidiary, as the case may be, and
are at least as favorable to the Company or such Subsidiary as the terms which
could be obtained by the Company or such Subsidiary, as the case may be, in a
comparable transaction made on an arm'slength basis with a Person who is not
such an Affiliate of the Company, or (B) the Company has received an opinion
from a qualified independent financial adviser to the Company to the effect that
such Affiliate Transaction is fair to the Company or such Subsidiary, as the
case may be, from a financial point of view, and (iii) with respect to any
Affiliate Transaction involving
79
aggregate payments in excess of $5 million, the Company delivers an Officers'
Certificate to the Trustee certifying that such Affiliate Transaction complies
with clause (i) above and both clauses (ii)(A) and (ii)(B) above; PROVIDED,
HOWEVER, that Affiliate Transactions shall not include (i) transactions between
the Company and any of its Wholly Owned Subsidiaries or among Wholly Owned
Subsidiaries of the Company (for this purpose a Wholly Owned Subsidiary shall
include SCSM if the Company, directly or indirectly, beneficially owns at least
90% of the equity interest in SCSM and the remaining equity interest, if any, is
beneficially owned by Persons other than Affiliates of the Company), (ii) any
transaction with an officer or member of the Board of Directors of the Company
or any Subsidiary entered into in the ordinary course of business or (iii)
performance of any agreement or arrangement in existence (written or oral) on
the date of this Indenture in accordance with its terms as in effect on such
date.
Section 1011. LIMITATION ON SALE OF ASSETS.
(a) The Company will not, and will not permit any Subsidiary to,
directly or indirectly, consummate an Asset Sale unless (i) at least 75% of
the proceeds from such Asset Sale are received in cash and (ii) the Company
or such Subsidiary receives consideration at the time of such Asset Sale at
least equal to the Fair Market Value of the shares or assets sold (as
determined by the Board of Directors of the Company and evidenced in a Board
Resolution).
(b) If all or a portion of the Net Cash Proceeds of any Asset
Sale is not required to be applied to repay permanently any Indebtedness
outstanding under the New Credit Facility, or the Company determines not to
apply such Net Cash Proceeds to the permanent prepayment of any Indebtedness
outstanding under the New Credit Facility or such New Credit Facility
Indebtedness is no longer outstanding, then the Company may within one year of
the Asset Sale either invest or enter into a legally binding agreement to invest
the Net Cash Proceeds in properties and assets that (as determined by the Board
of Directors, whose determination shall be conclusive and evidenced by a Board
Resolution) replace the properties and assets that were the subject of the Asset
Sale or in properties and assets that will be used in the businesses of the
Company or its Subsidiaries existing on the date of this Indenture or reasonably
related thereto. If any legally binding agreement to invest any Net Cash
Proceeds is terminated, then the Company may invest such Net Cash Proceeds,
prior to the end of such one-year period or six months from such termination,
whichever is later, in like properties and assets. The amount of such Net Cash
Proceeds neither used to permanently repay or prepay New Credit Facility
Indebtedness nor used or invested as set forth in this paragraph constitutes
"Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals $10
million or more, the Company shall apply the Excess Proceeds to the
repayment of the Senior Notes and all other Senior Indedtedness required by
its terms to be prepaid with such
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Excess Proceeds in accordance with and as contemplated by Section 1011 of
the Senior Note Indenture; PROVIDED, HOWEVER that to the extent the
aggregate amount of Excess Proceeds remaining after giving effect to the
repayment of such Serior indebtedness(if any) equals $10 million or more, on
the Business Day following the date of purchase of such repayment of the
Securities and any Pari Passu Indebtedness as follows: (i) the Company
shall make an offer to purchase (an "Offer") from all Holders of the
Securities in accordance with the procedures set forth in this Indenture in
the maximum principal amount (expressed as a multiple of $1,000) of
Securities that may be purchased out of an amount (the "Security Amount")
equal to the product of such Excess Proceeds multiplied by a fraction, the
numerator of which is the Outstanding principal amount of the Securities,
and the denominator of which is the sum of the Outstanding principal amount
of the Securities and such Pari Passu Indebtedness (subject to proration in
the event such amount is less than the aggregate Offered Price (as defined
herein) of all Securities tendered) and (ii) to the extent required by such
Pari Passu Indebtedness to permanently reduce the principal amount of such
Pari Passu Indebtedness, the Company shall make an offer to purchase or
otherwise repurchase or redeem Pari Passu Indebtedness (a "Pari Passu
Offer") out of an amount (the "Pari Passu Debt Amount") equal to the excess
of the Excess Proceeds over the Security Amount; PROVIDED that in no event
shall the Pari Passu Debt Amount exceed the principal amount of such Pari
Passu Indebtedness plus the amount of any premium required to be paid to
repurchase such Pari Passu Indebtedness. The Offer price shall be payable
in cash in an amount equal to 100% of the principal amount of the Securities
plus accrued and unpaid interest, if any, to the date (the "Offer Date")
such Offer is consummated (the "Offered Price"), in accordance with the
procedures set forth in this Indenture. Upon completion of the purchase of
all the Securities tendered pursuant to an Offer or repurchase of the Pari
Passu Indebtedness pursuant to a Pari Passu Offer and the purchase of all
Senior Subordinated Notes tendered (or repurchase of Indebtedness pari passu
thereto) pursuant to the provisions of Section 1011 of the Senior
Subordinated Note Indenture, the amount of Excess Proceeds shall be reset at
zero. To the extent that the aggregate amount of (x) Securities tendered
and repurchased and Pari Passu Indebtedness repurchased pursuant to an Offer
and Pari Passu Offer, respectively, and (y) Senior Subordinated Notes
tendered and repurchased and Indebtedness pari passu thereto repurchased
pursuant to the provisions of Section 1011 of the Senior Subordinated Note
Indenture is less than the amount of Excess Proceeds, the Company may use
such deficiency, or portion thereof, for general corporate purposes.
(d) Whenever the Excess Proceeds received by the Company exceed
$10 million, such Excess Proceeds shall, prior to the purchase of Securities
or any Pari Passu Indebtedness described in paragraph (c) above, be set
aside by the Company in a separate account pending (i) deposit with the
Paying Agent or the Trustee of the amount required to purchase the
Securities or the repurchase or redemption price of Pari Passu
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Indebtedness tendered in an Offer or a Pari Passu Offer, (ii) delivery by
the Company of the Offered Price to the Holders of the Securities tendered
in an Offer or the repurchase or redemption price of Pari Passu Indebtedness
tendered in a Pari Passu Offer and (iii) application, as set forth above, of
Excess Proceeds in the business of the Company and its Subsidiaries;
PROVIDED that in no event shall the Company be required to set aside an
amount in excess of the sum of the Security Amount and the Pari Passu Debt
Amount. Such Excess Proceeds may be invested in Temporary Cash Investments;
PROVIDED that the maturity date of any such investment made after the amount
of Excess Proceeds exceeds $10 million shall not be later than the Offer
Date. The Company shall be entitled to any interest or dividends accrued,
earned or paid on such Temporary Cash Investments; PROVIDED that the Company
shall not be entitled to such interest if an Event of Default has occurred
and is continuing.
(e) If the Company becomes obligated to make an Offer pursuant to
paragraph (c) above, the Securities shall be purchased by the Company, at
the option of the Holders thereof, in whole or in part in integral multiples
of $1,000, on a date that is not earlier than 45 days and not later than 60
days from the date the notice of the Offer is given to Holders, or such
later date as may be necessary for the Company to comply with the
requirements under the Exchange Act, subject to proration in the event the
Security Amount is less than the aggregate Offered Price of all Securities
tendered.
(f) The Company shall comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with an Offer.
(g) The Company will not, and will not permit any Subsidiary to,
create or permit to exist or become effective any restriction (other than
restrictions existing under Indebtedness as in effect on the date of this
Indenture as such Indebtedness may be refinanced or replaced from to time;
PROVIDED that such restrictions are not less favorable to the Holders of
Securities than those existing on the date of this Indenture) that would
materially impair the ability of the Company to make an Offer to purchase
the Securities or, if such Offer is made, to pay for the Securities tendered
for purchase.
(h) Within 30 days after the date on which the amount of Excess
Proceeds equals $10 million or more, the Company shall send by first-class
mail, postage prepaid, to the Trustee and to each Holder of the Securities,
at its address appearing in the Security Register, a notice stating or
including:
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(1) that the Holder has the right to require the Company to
repurchase, subject to proration, such Holder's Securities at the
Offered Price;
(2) the Purchase Date;
(3) the instructions a Holder must follow in order to have
its Securities purchased in accordance with paragraph (c) of this
Section; and
(4) (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements), of the
Company, the most recent subsequently filed Quarterly Report on Form
10-Q and any Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report, other than Current Reports
describing Asset Sales otherwise described in the offering materials
(or corresponding successor reports)(or in the event the Company is
not required to prepare any of the foregoing Forms, the comparable
information required pursuant to Section 1017), (ii) a description of
material developments in the Company's business subsequent to the
date of the latest of such reports, (iii) if material, appropriate
PRO FORMA financial information and (iv) such other information, if
any, concerning the business of the Company and its Subsidiaries
which the Company in good faith believes will enable such Holders to
make an informed investment decision.
(i) Holders electing to have Securities purchased will be
required to surrender such Securities to the Company at the address
specified in the notice at least two Business Days prior to the Purchase
Date. An election may be withdrawn before or after delivery by the Holder
to the Paying Agent at the office of the Paying Agent of the Security to
which such an election relates, by means of a written notice of withdrawal
delivered by the Holder to the Paying Agent at the office of the Paying
Agent or to the office or agency referred to in Section 1002 to which the
related notice was delivered at any time prior to the close of business on
the Purchase Date specifying, as applicable:
(1) the certificate number of the Security in respect of
which such notice of withdrawal is being submitted;
(2) the principal amount of the Security (which shall be
$1,000 or an integral multiple thereof) with respect to which such
notice of withdrawal is being submitted; and
(3) the principal amount, if any, of such Security (which
shall be $1,000 or an integral multiple thereof) that remains
subject to the original
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notice of the Offer and that has been or will be delivered for
purchase by the Company.
Holders will be entitled to withdraw their election if the Company receives,
not later than three Business Days prior to the Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Securities delivered for purchase by the
Holder as to which his election is to be withdrawn and a statement that such
Holder is withdrawing his election to have such Securities purchased.
(j) Not later than the Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the
Offer, (ii) deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in same day funds (or New York
Clearing House funds if such deposit is made prior to the Purchase Date)
sufficient to pay the aggregate Offered Price of all the Securities or
portions thereof which are to be purchased on that date and (iii) deliver to
the Trustee or Paying Agent an Officers' Certificate stating the Securities
or portions thereof accepted for payment by the Company.
As provided in the Securities and Section 1003, the Trustee and the
Paying Agent shall return to the Company any cash that remains unclaimed,
together with interest or dividends, if any, thereon, held by them for the
payment of the Offered Price; PROVIDED, HOWEVER, that, to the extent that the
aggregate amount of cash deposited by the Company with the Trustee in respect of
an offer exceeds the aggregate Offered Price of the Securities or portions
thereof to be purchased, then the Trustee shall hold such excess for the Company
and, promptly after the Business Day following the Purchase Date, the Trustee
shall upon demand return any such excess to the Company, together with interest
or dividends, if any, thereon.
(k) Securities to be purchased shall, on the Purchase Date,
become due and payable at the Offered Price and from and after such date
(unless the Company shall default in the payment of the Offered Price) such
Securities shall cease to bear interest. Such Offered Price shall be paid
to such Holder promptly following the later of the Business Day following
the Purchase Date and the time of delivery of such Security to the relevant
Paying Agent at the office of such Paying Agent by the Holder thereof in the
manner required. Upon surrender of any such Security for purchase in
accordance with the foregoing provisions, such Security shall be paid by the
Company at the Offered Price; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Purchase Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates
according to the terms and the provisions of Section 307; PROVIDED FURTHER
that Securities to be purchased are subject to proration in the event the
Securities Amount is less than the
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aggregate Offered Price of all Securities tendered for purchase, with such
adjustments as may be appropriate by the Trustee so that only Securities in
denominations of $1,000 or integral multiples thereof, shall be purchased.
If any Security tendered for purchase shall not be so paid upon surrender
thereof, the principal thereof (and premium, if any, thereon) shall, until
paid, bear interest from the Purchase Date at the rate borne by such
Security. Any Security that is to be purchased only in part shall be
surrendered to a Paying Agent at the office of such Paying Agent (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute and the Trustee shall
authenticate and make available for delivery to the Holder of such Security,
without service charge, one or more new Securities of any authorized
denomination as requested by such Holder in an aggregate principal amount
equal to, and in exchange for, the portion of the principal amount of the
Security so surrendered that is not purchased.
Section 1012. LIMITATION ON LIENS.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly, create, incur, affirm or suffer to exist any Lien
(other than Permitted Liens) of any kind upon any of its property or assets
(including any intercompany notes) or any income or profits therefrom,
except if the Securities (or a Guarantee, in the case of Liens of a
Guarantor) are directly secured equally and ratably with (or prior to in the
case of Liens with respect to Subordinated Indebtedness or Indebtedness of a
Guarantor subordinated in right of payment to any Guarantee) the obligation
or liability secured by such Lien.
Section 1013. LIMITATION ON ISSUANCES OF GUARANTEES OF
INDEBTEDNESS BY SUBSIDIARIES.
(a) The Company will not permit any Subsidiary, directly or indirectly,
to guarantee, assume or in any other manner become liable with respect to any
Indebtedness of the Company other than guarantees of the Securities or
indebtedness under the New Credit Facility unless (i) such Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a guarantee of the Securities and if such Indebtedness is by its
terms expressly subordinated to the Securities, any such assumption, guarantee
or other liability of such Subsidiary with respect to such Indebtedness shall be
subordinated to such Subsidiary's assumption, guarantee or other liability with
respect to the Securities to the same extent as such Indebtedness is
subordinated to the Securities and (ii) such Subsidiary waives and will not in
any manner whatsoever claim, or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Subsidiary as a result of any payment by such Subsidiary.
85
(b) Each guarantee or other obligation created pursuant to the
provisions described in the foregoing paragraph and in Section 1015 is
referred to as a "Guarantee" and the issuer of each such Guarantee is
referred to as a "Guarantor." Notwithstanding the foregoing, any Guarantee
by a Subsidiary of the Securities pursuant to Section 1013(a) (but not
Section 1015) shall provide by its terms that it shall be automatically and
unconditionally released and discharged upon any sale, exchange or transfer,
to any Person not an Affiliate of the Company, of all of the Company's
Capital Stock in, or all or substantially all the assets of, such
Subsidiary, which sale, exchange or transfer is in compliance with this
Indenture.
Section 1014. PURCHASE OF SECURITIES UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder shall
have the right to require that the Company repurchase such Holder's
Securities pursuant to an offer described in subsection (b) of this Section
(a "Change of Control Offer") in whole or in part in integral multiples of
$1,000, at a purchase price (the "Change of Control Purchase Price") in cash
in an amount equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of purchase (the "Change of Control
Purchase Date"), in accordance with the procedures set forth in Subsections
(b), (c) and (d) of this Section.
(b) Within 30 days following any Change of Control, the Company
shall send by first-class mail, postage prepaid, to the Trustee and to each
Holder of the Securities, at its address appearing in the Security Register
a notice (a "Change of Control Purchase Notice") stating:
(1) that a Change of Control has occurred, the date of such
event, and that such Holder has the right to require the Company
to repurchase such Holder's Securities at the Change of Control
Purchase Price;
(2) the circumstances and relevant facts regarding such
Change of Control (including but not limited to information with
respect to PRO FORMA historical income, cash flow and
capitalization after giving effect to such Change of Control, if
any);
(3) (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the
Company, the most recent subsequently filed Quarterly Report on
Form 10-Q and any Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report (or in the event the Company
is not required to prepare any of the foregoing Forms, the
comparable information required pursuant to Section 1017), (ii) a
description of material developments in the Company's business
subsequent to the date of the latest of such reports and
86
(iii) such other information, if any, concerning the business of
the Company and its Subsidiaries which the Company in good faith
believes will enable such Holders to make an informed investment
decision;
(4) that the Change of Control Offer is being made pursuant
to this Section 1014 and that all Securities properly tendered
pursuant to the Change of Control Offer will be accepted for
payment at the Change of Control Purchase Price;
(5) the purchase date (the "Change of Control Purchase Date")
which shall be no earlier than 30 days nor later than 60 days from
the date such notice is mailed or such later date as is necessary to
comply with requirements under the Exchange Act; PROVIDED, that the
Change of Control Purchase Date (as defined in the Senior Subordinated
Note Indenture) for the Senior Subordinated Notes shall be a date
subsequent to the Change of Control Purchase Date established by the
Company for the repurchase of the Securities;
(6) the Change of Control Purchase Price;
(7) the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 1002;
(8) that Securities must be surrendered on or prior to the
Change of Control Purchase Date to the Paying Agent at the office
of the Paying Agent or to an office or agency referred to in the
Change of Control Purchase Notice to collect payment;
(9) that the Change of Control Purchase Price for any
Security which has been properly tendered and not withdrawn will
be paid promptly following the Change of Control Purchase Date;
(10) that any Security not tendered will continue to accrue
interest;
(11) that, unless the Company defaults in the payment of the
purchase price, any Securities accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest after
the Change of Control Purchase Date;
(12) the procedures for withdrawing a tender.
(c) Prior to the repurchase of Securities pursuant to this
Section 1014, the Company shall either repay and discharge all outstanding
Senior Indebtedness or
87
obtain the requisite consents, if any, under all agreements governing the
outstanding Senior Indebtedness, or in the case of the Senior Notes or any
Indebtedness ranking PARI PASSU with the Senior Notes which has a provision
similar to Section 1011 of the Senior Note Indenture, consummate a Change
of Control Offer (as set forth in the Senior Note Indenture) pursuant to
Section 1011 of the Senior Note Indenture and the indenture governing
such other Indebtedness and repurchase all Senior Notes and such other
Indebtedness validly tendered for payment in connection with such Change
of Control Offer.
(d) Upon receipt by the Company of the proper tender of
Securities, the Holder of the Security in respect of which such proper
tender was made shall (unless the tender of such Security is properly
withdrawn) thereafter be entitled to receive solely the Change of Control
Purchase Price with respect to such Security. Upon surrender of any such
Security for purchase in accordance with the foregoing provisions, such
Security shall be paid by the Company at the Change of Control Purchase
Price; PROVIDED, HOWEVER, that installments of interest whose Stated
Maturity is on or prior to the Change of Control Purchase Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates
according to the terms and the provisions of Section 307. If any
Security tendered for purchase shall not be so paid upon surrender
thereof, the principal thereof (and premium, if any, thereon) shall,
until paid, bear interest from the Change of Control Purchase Date at the
rate borne by such Security. Holders electing to have Securities
purchased will be required to surrender such Securities to the Paying
Agent at the address specified in the notice at least two Business Days
prior to the Change of Control Purchase Date. Any Security that is to be
purchased only in part shall be surrendered to a Paying Agent at the
office of such Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the
Company shall execute and the Trustee shall authenticate and make
available for delivery to the Holder of such Security, without service
charge, one or more new Securities of any authorized denomination as
requested by such Holder in an aggregate principal amount equal to, and
in exchange for, the portion of the principal amount of the Security so
surrendered that is not purchased.
(e) Not later than the Change of Control Purchase Date, the
Company shall (i) accept for payment Securities or portions thereof
tendered pursuant to the Change of Control Offer, (ii) no later than
11:00 a.m. (New York time) on the Business Day following the Change of
Control Purchase Date, deposit with the Paying Agent an amount of cash
sufficient to pay the aggregate Change of Control Purchase Price of all
the Securities or portions thereof that are to be purchased as of the
Change of Control Purchase Date and (iii) deliver to the Paying Agent and
the Trustee an Officers' Certificate stating the Securities or portions
thereof accepted for payment by the
88
Company. The Paying Agent shall promptly mail or deliver to Holders of
Securities so accepted payment in an amount equal to the Change of
Control Purchase Price of the Securities purchased from each such Holder,
and the Company shall execute and the Trustee shall promptly authenticate
and mail or make available for delivery to such Holders a new Security
equal in principal amount to any unpurchased portion of the Security
surrendered. Any Securities not so accepted shall be promptly mailed or
delivered by the Paying Agent at the Company's expense to the Holder
thereof. The Company will publicly announce the results of the Change of
Control Offer on the Change of Control Purchase Date. For purposes of
this Section 1014, the Company shall choose a Paying Agent which shall
not be the Company.
(f) A tender made in response to a Change of Control Purchase
Notice may be withdrawn before or after delivery by the Holder to the
Paying Agent at the office of the Paying Agent of the Security to which
such Change of Control Purchase Notice relates, by means of a written
notice of withdrawal delivered by the Holder to the Paying Agent at the
office of the Paying Agent or to the office or agency referred to in
Section 1002 to which the related Change of Control Purchase Notice was
delivered at any time prior to the close of business on the Change of
Control Purchase Date specifying, as applicable:
(1) the certificate number of the Security in respect of
which such notice of withdrawal is being submitted,
(2) the principal amount of the Security (which shall be
$1,000 or an integral multiple thereof) with respect to which such
notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Security (which
shall be $1,000 or an integral multiple thereof) that remains
subject to the original Change of Control Purchase Notice and that
has been or will be delivered for purchase by the Company.
A Holder will be entitled to withdraw a tender made in response to a Change
of Control Purchase Notice if the Company receives, not later than three
Business Days prior to the Change of Control Purchase Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Securities delivered for purchase by the Holder as to
which his or her tender made in response to a Change of Control Purchase Notice
is to be withdrawn and a statement that such Holder is withdrawing his or her
tender made in response to a Change of Control Purchase Notice. A Holder will be
entitled to withdraw a tender made in response to a Change of Control Purchase
Notice if the Company receives, not later than three Business Days prior to the
Change of Control Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Securities delivered for purchase by the Holder as to which his or her tender
made in response to a Change of Control Purchase Notice is to be withdrawn and a
statement that such Holder is withdrawing his or her tender made in response to
a Change of Control Purchase Notice.
(g) As provided in the Securities and Section 1003, the
Trustee and the Paying Agent shall return to the Company any cash that
remains unclaimed, together with
89
interest or dividends, if any, thereon, held by them for the payment of
the Change of Control Purchase Price; PROVIDED, HOWEVER, that, to the
extent that the aggregate amount of cash deposited by the Company
pursuant to clause (e)(ii) exceeds the aggregate Change of Control
Purchase Price of the Securities or portions thereof to be purchased,
then the Trustee or Paying Agent shall hold such excess for the Company
and promptly after the Business Day following the Change of Control
Purchase Date the Trustee or Paying Agent shall upon demand return any
such excess to the Company, together with interest or dividends, if any,
thereon.
(h) The Company shall comply, to the extent applicable, with
the requirements of Rule 14e-1 under the Exchange Act and other
securities laws or regulations in connection with the repurchase of the
Securities as described above.
Section 1015. LIMITATION ON ISSUANCE AND SALE OF CAPITAL STOCK OF
SUBSIDIARIES.
The Company will not permit (a) any Subsidiary to issue any
Capital Stock (other than to the Company or any Wholly Owned Subsidiary) or (b)
any Person (other than the Company or a Wholly Owned Subsidiary) to acquire any
Capital Stock of any Subsidiary from the Company or any Wholly Owned Subsidiary
except upon the sale of all of the outstanding Capital Stock of such Subsidiary
owned by the Company or a Wholly Owned Subsidiary except in either case if (i)
the Subsidiary whose Capital Stock is issued or sold guarantees all obligations
of the Company under this Indenture and the Securities by simultaneously
executing and delivering a supplemental indenture to this Indenture providing
for such guarantee (the terms of which guarantee shall rank no less than pari
passu in right of payment with all Indebtedness of such Subsidiary Guarantor)
(provided that this clause (i) shall not be applicable in the case of the
issuance or sale of the Capital Stock of American Country Insurance Company to
the extent such guarantee is prohibited by law), (ii) after giving effect to the
sale or issuance of such Capital Stock, the Company benefically owns in excess
of 50% of the outstanding Capital Stock of such Subsidiary on a fully diluted
basis and (iii) the Capital Stock is issued or sold in an underwritten public
offering pursuant to a registration statement that has been declared effective
by the Commission pursuant to the Securities Act.
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Section 1016. LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company will not, and will not permit any Subsidiary to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distribution on its Capital Stock to the Company or
any other Subsidiary, (b) pay any Indebtedness owed to the Company or any
Subsidiary, (c) make any Investment in the Company or any other Subsidiary or
(d) transfer any of its properties or assets to the Company or any Subsidiary,
except (i) any encumbrance or restriction pursuant to an agreement in effect on
the date of this Indenture and listed on Schedule II hereto, (ii) any
encumbrance or restriction, with respect to a Subsidiary that is not a
Subsidiary of the Company on the date of this Indenture, in existence at the
time such Person becomes a Subsidiary of the Company and not incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary,
(iii) any such encumbrance or restriction in the New Credit Facility as in
effect on the date of this Indenture and (iv) any encumbrance or restriction
existing under any agreement that extends, renews, refinances or replaces the
agreements containing the encumbrances or restrictions in the foregoing clauses
(i) and (ii), PROVIDED that the terms and conditions of any such encumbrances or
restrictions are not materially less favorable to the Holders of the Securities
than those under or pursuant to the agreement evidencing the Indebtedness so
extended, renewed, refinanced or replaced.
Section 1017. IMPAIRMENT OF SECURITY INTEREST.
The Company will not incur, create, issue, assume, guarantee, or
otherwise become directly or indirectly liable with respect to any Indebtedness
that is contractually subordinate or junior in right of payment to any Senior
Debt and contractually senior in any respect in right of payment to the
Securities.
Section 1018. PROVISION OF FINANCIAL STATEMENTS.
Whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act, the Company will, to the extent permitted under the
Exchange Act, file with the Commission the annual reports, quarterly reports and
other documents which the Company would have been or is required to file with
the Commission pursuant to such Section 13(a) or 15(d) if the Company were or is
so subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been or is required so to file such documents if the Company were or is so
subject. The Company will also in any event (x)(i) within 15 days of each
Required Filing Date file with the Trustee copies of the annual reports,
quarterly reports and other documents which the Company would have been or is
required to file, as the case may be, with the Commission pursuant to Section
13(a) or
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15(d) of the Exchange Act if the Company were or is subject to such Section
and (ii) within the earlier of 30 days after the filing of such report or
other document with the Trustee and 45 days of each such Required Filing
Date transmit such report or document by mail to all Holders of Securities,
as their names and addresses appear in the Security Register, without cost
to such Holders of Securities and (y) if filing such documents by the
Company with the Commission is not permitted under the Exchange Act,
promptly upon written request supply copies of such documents to any
prospective Holder of Securities at the Company's cost.
Section 1019. LIMITATION ON COMPENSATION.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly, pay to each of Martin L. Solomon, Allan R. Tessler
and Wilmer J. Thomas, Jr. aggregate compensation from the Company and its
Subsidiaries in any calendar year in excess of the aggregate compensation
which was paid in 1993 to each such person by the Company and its
Subsidiaries as disclosed in the Prospectus. The Company will not, and will
not permit any Subsidiary to, directly or indirectly, pay to David R. Markin
aggregate consulting fees from the Company and its Subsidiaries in any
calendar year in excess of the aggregate consulting fees which he was paid
in 1993 by the Company and its Subsidiaries as disclosed in the Prospectus.
Section 1020. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, on or before a date
not more than 60 days after the end of each fiscal quarter and not more than
120 days after the end of each fiscal year of the Company ending after the
date hereof, a written statement signed by two executive officers of the
Company, one of whom shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company, stating
whether or not, after a review of the activities of the Company during such
year or such quarter and of the Company's performance under this Indenture,
to the best knowledge, based on such review, of the signers thereof, the
Company has fulfilled all its obligations and is in compliance with all
conditions and covenants under this Indenture throughout such year or
quarter, as the case may be, and, if there has been a Default specifying
each Default and the nature and status thereof.
(b) At the time the Company delivers the annual certificate by
officers as to default required by Section 1020(a), it will deliver a
statement by the independent accountants that reviewed its annual report
that nothing has come to the attention of such independent accountants which
would indicate that a Default under Sections 801, 1008, 1009, 1011, 1016 or
1019 has occurred or, if a Default has occurred, the nature thereof and
whether it is then continuing.
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(c) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder
of any other evidence of Indebtedness of the Company or any Subsidiary gives
any notice or takes any other action with respect to a claimed default, the
Company shall deliver to the Trustee by registered or certified mail or by
telegram, telex or facsimile transmission followed by hard copy an Officers'
Certificate specifying such Default, Event of Default, notice or other
action within five Business Days of its occurrence.
Section 1021. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1005 through 1019 (other than
Sections 1011 and 1014) if, before or after the time for such compliance,
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding waive such compliance in such instance
with such covenant or condition, but no such waiver shall extend to or
affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. RIGHT OF REDEMPTION.
The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, on or after , 1999, subject to the
conditions and at the Redemption Prices specified in the form of Security,
together with accrued interest to the Redemption Date. In addition, up to 25%
of the aggregate principal amount of the Securities Outstanding on the date of
this Indenture will be redeemable prior to _____, 1997, at the option of the
Company, within 120 days of a Public Offering from the net proceeds of such
sale, in amounts of $1,000 or an integral multiple thereof, at a redemption
price equal to ___% of the principal amount, together with accrued and unpaid
interest, if any, to the date of redemption (subject to the right of Holders of
record on relevant record dates to receive interest due on an Interest Payment
Date); PROVIDED that $___ in aggregate principal amount of the Securities
remains Outstanding immediately following such redemption.
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Section 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture,
shall be made in accordance with such provision and this Article.
Section 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant
to Section 1101 shall be evidenced by a Board Resolution and an Officers'
Certificate. In case of any redemption at the election of the Company,
the Company shall, not less than 45 nor more than 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice period
shall be satisfactory to the Trustee), notify the Trustee in writing of
such Redemption Date and of the principal amount of Securities to be
redeemed.
Section 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the
particular Securities or portions thereof to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities not previously called for
redemption, pro rata, by lot or by any other method the Trustee shall
deem fair and reasonable, and the amounts to be redeemed may be equal to
$1,000 or any integral multiple thereof.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only
in part, to the portion of the principal amount of such Security which
has been or is to be redeemed.
Section 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
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(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be
redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the
principal amount of such Security to be redeemed and that after the
Redemption Date upon surrender of such Security, a new Security or
Securities in the aggregate principal amount equal to the unredeemed
portion thereof will be issued;
(e) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof, and
that (unless the Company shall default in payment of the Redemption
Price) interest thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(h) the CUSIP number, if any, relating to such Securities.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's written request, by the Trustee in the name and at the expense
of the Company.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder
receives such notice. In any case, failure to give such notice by mail
or any defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.
Section 1106. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money in same day funds sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date. All money earned
on funds held in trust by the Trustee or any Paying Agent in excess of
what is required to pay the Redemption Price and accrued interest thereon
shall be remitted to the Company.
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Section 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified and from and after
such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company
at the Redemption Price together with accrued interest to the Redemption
Date; PROVIDED, HOWEVER, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such on the relevant Regular Record Dates according to the
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any,
shall, until paid, bear interest from the Redemption Date at the rate
borne by such Security.
Section 1108. SECURITIES REDEEMED OR PURCHASED IN PART.
Any Security which is to be redeemed or purchased only in part shall
be surrendered to the Paying Agent at the office or agency maintained for such
purpose pursuant to Section 1002 (with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar or the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate principal amount equal
to, and in exchange for, the unredeemed portion of the principal of the
Security so surrendered that is not redeemed or purchased.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
Section 1201. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that,
to the extent and in the manner hereinafter set forth in this Article,
the Indebtedness represented by the Securities and the payment of the
principal of, premium, if any, and interest on each and all of the
Securities
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and all other Indenture Obligations are hereby expressly made subordinate and
subject in right of payment as provided in this Article to the prior payment in
full, in cash or cash equivalents or in any other form as acceptable to the
holders of Senior Indebtedness, of all Senior Indebtedness.
The Indenture Obligations shall rank senior in right of payment to the payment
of the principal of, premium, if any, or interest on any Indebtedness of the
Company, whether outstanding on the date of this Indenture as originally
executed or thereafter created or incurred, if in the instrument creating
or evidencing such Indebtedness or pursuant to which the same is outstanding,
it is provided that such Indebtedness is subordinated to any other Indebtedness
of the Company (unless it is also provided that such subordinated Indebtedness
is PARI PASSU with the Securities). Until redemption thereof, the Indenture
Obligations shall rank PARI PASSU with the Company's 12 3/4% Senior
Subordinated Debentures due 2001.
This Article Twelve shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or
continue to hold Senior Indebtedness; and such provisions are made for
the benefit of the holders of Senior Indebtedness; and such holders are
made obligees hereunder and they or each of them may enforce such
provisions.
Section 1202. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative to the
Company or to its assets, or (b) any liquidation, dissolution or other
winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshaling of assets or liabilities of
the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full, in cash or cash equivalents or in any other form
as acceptable to the holders of Senior Indebtedness, of all amounts due
on or in respect of all Senior Indebtedness, before the Holders of the
Securities are entitled to receive any payment or distribution of any
kind or character (excluding Permitted Junior Securities) on account of
the principal of, premium, if any, or interest on the Securities or any
other Indenture Obligations; and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (excluding
Permitted Junior Securities), by set-off or otherwise, to which the
Holders or the Trustee would be entitled but for the provisions of this
Article shall be paid by the liquidating trustee or agent or other Person
making such payment or distribution, whether a trustee in bankruptcy, a
receiver or
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liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing
any of such Senior Indebtedness may have been issued, ratably according
to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full, in cash or cash equivalents or in any other form as
acceptable to the holders of Senior Indebtedness, of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, in respect of principal,
premium, if any, and interest on the Securities or any other Indenture
Obligations before all Senior Indebtedness is paid in full, then and in such
event such payment or distribution (excluding Permitted Junior Securities) shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other person making payment
or distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, in cash or cash equivalents or in any other form as
acceptable to the holders of Senior Indebtedness, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution of
the Company following the sale, assignment, conveyance, transfer, lease
or other disposal of all or substantially all of the Company's properties
or assets to another Person upon the terms and conditions set forth in
Article Eight shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshaling of
assets and liabilities of the Company for the purposes of this Section if
the Person formed by such consolidation or the surviving entity of such
merger or the Person which acquires by sale, assignment, conveyance,
transfer, lease or other disposal of all or substantially all of the
Company's properties or assets, as the case may be, shall, as a part of
such consolidation, merger, sale, assignment, conveyance, transfer, lease
or other disposal, comply with the conditions set forth in Article Eight.
Section 1203. SUSPENSION OF PAYMENT WHEN SENIOR INDEBTEDNESS IN
DEFAULT.
(a) Unless Section 1202 shall be applicable, upon the
occurrence of a Payment Default, no payment (other than any payments
previously made pursuant to the provisions described in Article Four) or
distribution of any assets of the Company of any kind or character
(excluding Permitted Junior Securities) shall be made by the Company on
account of the principal of, premium, if any, or interest on, the
Securities or any other
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Indenture Obligations or on account of the purchase, redemption,
defeasance (whether under Section 402 or 403) or other acquisition of or
in respect of the Securities unless and until such Payment Default shall
have been cured or waived or shall have ceased to exist or the Designated
Senior Indebtedness with respect to which such Payment Default shall have
occurred shall have been discharged or paid in full, in cash or cash
equivalents or in any other form as acceptable to the holders of such
Senior Indebtedness, after which the Company shall resume making any and
all required payments in respect of the Securities, including any missed
payments.
(b) Unless Section 1202 shall be applicable, upon (1) the occurrence
of a Non-payment Default and (2) receipt by the Trustee and the Company from a
holder of or a representative of the holders of Designated Senior Indebtedness
(a "Senior Representative") of written notice of such occurrence, no payment
(other than any payments previously made pursuant to the provisions described in
Article Four) or distribution of any assets of the Company of any kind or
character (excluding Permitted Junior Securities) shall be made by the Company
on account of any principal of, premium, if any, or interest on, the Securities
or any other Indenture Obligations or on account of the purchase, redemption,
defeasance or other acquisition of or in respect of the Securities for a period
("Payment Blockage Period") commencing on the date of receipt by the Trustee and
the Company of such notice unless and until the earliest of (subject to any
blockage of payments that may then or thereafter be in effect under subsection
(a) of this Section 1203) (x) 179 days after receipt of such written notice by
the Trustee (provided such Designated Senior Indebtedness as to which notice was
given shall not theretofore have been accelerated), (y) the date on which such
Non-payment Default is cured, waived or ceases to exist or on which such
Designated Senior Indebtedness is discharged or paid in full, in cash or cash
equivalents or in any other form as acceptable to the holders of such
Designated Senior Indebtedness, or (z) the date on which such Payment Blockage
Period shall have been terminated by written notice to the Company or the
Trustee from the Senior Representative or the holder of any Designated Senior
Indebtedness initiating such Payment Blockage Period, after which, in the case
of clause (i), (ii), or (iii), the Company shall promptly resume making any and
all required payments in respect of the Securities, including any missed
payments. Notwithstanding any other provision of this Indenture, in no event
shall a Payment Blockage Period under this paragraph (b) extend beyond 179 days
from the date of the receipt by the Trustee of the notice referred to in clause
(2) of this paragraph (b) (the "Initial Blockage Period"). Any number of
notices of Non-Payment Defaults may be given during the Initial Blockage Period;
PROVIDED that during any period of 365 consecutive days only one Payment
Blockage Period under this paragraph (b) may commence and the duration of such
period may not exceed 179 days. No Non-payment Default with respect to
Designated Senior Indebtedness that existed or was continuing on the date of the
commencement of any Payment Blockage Period will be, or can be, made the basis
for the commencement of a second Payment Blockage Period, whether or not within
a period
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of 365 consecutive days, unless such Non-payment Default has been cured
or waived for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any
Security prohibited by the foregoing provisions of this Section, then and
in such event such payment shall be paid over and delivered forthwith to
a Senior Representative of the holders of the Designated Senior
Indebtedness or as a court of competent jurisdiction shall direct.
Section 1204. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article, elsewhere in this Indenture
or in any of the Securities shall prevent the Company, at any time except
during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other
marshaling of assets and liabilities of the Company referred to in
Section 1202 or under the conditions described in Section 1203, from
making payments at any time of principal of, premium, if any, or interest
on the Securities.
Section 1205. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS.
Subject to the prior payment in full of all Senior Indebtedness, in
cash or cash equivalents or in any other form as acceptable to the holders of
Senior Indebtedness, the Holders of the Securities shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of, premium, if any, and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of Senior Indebtedness of any cash, property or
securities to which the Holders or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness, and the Holders of the Securities, be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness. Nothing herein shall be construed as providing the Holders of the
Securities with any security interest or other rights to collateral held by the
holders of Senior Indebtedness.
Section 1206. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are intended solely for the
purpose of defining the relative rights of the Holders of the Securities
on the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall (a) impair, as among the Company,
its creditors other than holders of Senior Indebtedness and the Holders
of
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the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of,
premium, if any, and interest on the Securities as and when the same
shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness (1) in any case,
proceeding, dissolution, liquidation or other winding up, assignment for
the benefit of creditors or other marshaling of assets and liabilities of
the Company referred to in Section 1202, to receive, pursuant to and in
accordance with such Section, cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder, or (2) under the
conditions specified in Section 1203, to prevent any payment prohibited
by such Section or enforce their rights pursuant to Section 1203(c).
Section 1207. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all
such purposes, including, in the event of any dissolution, winding-up,
liquidation or reorganization of the Company whether in bankruptcy,
insolvency, receivership proceedings, or otherwise, the timely filing of
a claim for the unpaid balance of the Indebtedness of the Company owing
to such Holder in the form required in such proceedings and the causing
of such claim to be approved.
Section 1208. 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 and notwithstanding any other provision contained herein, 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 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 or terms of payment or extend
the time of payment of, or renew or alter, Senior
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Indebtedness or any instrument evidencing 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) release any Person liable in any manner for the
collection or payment of Senior Indebtedness; and (4) exercise or refrain
from exercising any rights against the Company and any other Person;
PROVIDED, HOWEVER, that in no event shall any such actions limit the
right of the Holders of the Securities to take any action to accelerate
the maturity of the Securities in accordance with the provisions set
forth in Article Five or to pursue any rights or remedies under this
Indenture or under applicable laws if the taking of such action does not
otherwise violate the terms of this Article.
Section 1209. NOTICE TO TRUSTEE.
(a) 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 or other
Indenture Obligations. Notwithstanding the provisions of this Article or
any provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making
of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from a Senior
Representative or any trustee, fiduciary or agent therefor; and, prior to
the receipt of any such written notice, the Trustee shall be entitled in
all respects to assume that no such facts exist; PROVIDED, HOWEVER, that
if the Trustee shall not have received the notice provided for in this
Section at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of, premium, if any, or
interest on any Security or other Indenture Obligations), then, anything
herein contained to the contrary notwithstanding but without limiting the
rights and remedies of the holders of Senior Indebtedness or any trustee,
fiduciary or agent thereof, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for
which such money was received and shall not be affected by any notice to
the contrary which may be received by it within two Business Days prior
to such date; nor shall the Trustee be charged with knowledge of the
curing of any such default or the elimination of the act or condition
preventing any such payment unless and until the Trustee shall have
received an Officers' Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to it of
a written notice to the Trustee and the Company by a Person representing
himself to be a Senior Representative or a holder of Senior Indebtedness
(or a trustee, fiduciary or agent therefor) to establish that such notice
has been given by a Senior Representative or a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor); PROVIDED,
HOWEVER, that failure to give such notice to the Company shall not affect
in any way the ability of the Trustee to rely on such notice. In the
event that the Trustee determines in
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good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, 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, 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 1210. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or
similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the
benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities,
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, PROVIDED that the foregoing shall
apply only if such court has been fully apprised of the provisions of
this Article.
Section 1211. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 606.
Section 1212. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting under this Indenture,
the term "Trustee" as used in this Article shall in such case (unless the
context otherwise requires) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition
to or in place
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of the Trustee; PROVIDED, HOWEVER, that Section 1211 shall not apply to
the Company or any Affiliate of the Company if it or such Affiliate acts
as Paying Agent.
Section 1213. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article 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 Five and as set forth in
this Indenture or to pursue any rights or remedies hereunder or under
applicable law, subject to the rights, if any, under this Article of the
holders, from time to time, of Senior Indebtedness to receive the cash,
property or securities receivable upon the exercise of such rights or
remedies.
Section 1214. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
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, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Article against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall mistakenly in
the absence of gross negligence or willful misconduct pay over or deliver to
Holders, the Company or any other Person moneys or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE
Section 1301. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for) and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(1) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306 and (ii) Securities for whose payment United States dollars
have theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid
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to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation;
or
(2) all Securities not theretofore delivered to the Trustee
for cancellation (x) have become due and payable, (y) will become
due and payable at their Stated Maturity within one year, or (z)
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
and either the Company or any Guarantor has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust
an amount sufficient to pay and discharge the entire indebtedness
on the Securities not theretofore delivered to the Trustee for
cancellation, including principal of, premium, if any, and accrued
interest on such Securities, at such Maturity, Stated Maturity or
Redemption Date;
(b) the Company and Guarantor have paid or caused to be paid
all other sums payable hereunder by the Company or any Guarantor; and
(c) the Company and any Guarantor have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel in the United
States each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied with, and
that such satisfaction and discharge will 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 is a party or by which the Company
is bound. Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if United
States dollars shall have been deposited with the Trustee pursuant to subclause
(2) of Subsection (a) of this Section, the obligations of the Trustee under
Section 1302 and the last paragraph of Section 1003 shall survive.
Section 1302. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003,
all United States dollars deposited with the Trustee pursuant to Section
1301 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal of, premium, if any, and interest on the
Securities for whose payment such United States dollars have been deposited
with the Trustee.
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If an officer whose signature is on this Indenture no longer holds
that office at the time the Trustee authenticates a Security on which a
Guarantee is endorsed, such Guarantee, if any, shall be valid nevertheless.
* * * * *
This Indenture may be signed in any number of counterparts with
the same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original
of this Indenture.
106
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
INTERNATIONAL CONTROLS CORP.
By:/S/
---------------------------------------
Title:
[SEAL]
Attest:/S/
------------------------------
Title:
MARINE MIDLAND BANK,as Trustee
By:/S/
---------------------------------------
Title:
[SEAL]
Attest: /S/
-------------------------------
Title:
107
STATE OF ____________________)
) ss.:
COUNTY OF ____________________)
On the ____ day of ______, 1994, before me personally came
________________, to me known, who, being by me duly sworn, did depose and
say that he resides at _____________________________________; that he is an
Authorized Officer of ______________, one of the corporations described in
and which executed the above instrument; that he knows the corporate seal of
such corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed pursuant to authority of the Board of Directors
of such corporation; and that he signed his name thereto pursuant to like
authority.
(NOTARIAL
SEAL)
-------------------
SCHEDULE I
PERMITTED INDEBTEDNESS
SCHEDULE II
RESTRICTIONS AFFECTING SUBSIDIARIES
EXHIBIT A
[Form of Intercompany Note]
$ , 19
---------------------- -------
Evidences of all loans or advances ("Loans") hereunder shall be
reflected on the grid attached hereto. FOR VALUE RECEIVED,
_________________, a ______________ corporation (the "Maker"), HEREBY
PROMISES TO PAY ON DEMAND to the order of _______________ (the "Holder") the
principal sum of the aggregate unpaid principal amount of all Loans (plus
accrued interest thereon) at any time and from time to time made hereunder
which has not been previously paid.
All capitalized terms used herein and not otherwise defined herein
that are defined in or by reference to, the Indenture between International
Controls Corp. and FIRST FIDELITY BANK, NATIONAL ASSOCIATION, as Trustee,
dated as of _______ ____, 1994 (the "Indenture"), have the meanings assigned
to such terms therein, or by reference thereto, unless otherwise defined.
ARTICLE I
TERMS OF INTERCOMPANY NOTE
Section 1.01 NOT FORGIVABLE. Unless the Maker of the Loan hereunder
is the Company or any Guarantor, the Holder may not forgive any amounts
owing under this Intercompany Note.
Section 1.02 INTEREST; PREPAYMENT. (a) The interest rate ("Interest
Rate") on the Loans shall be _____________.
(b) The interest, if any, payable on each of the Loans shall
accrue from the date such Loan is made and shall be payable upon demand of
the Holder.
(c) If the principal or accrued interest, if any, on the Loans is
not paid on the date demand is made, interest on the unpaid principal and
interest will accrue at a rate equal to the Interest Rate, if any, plus____
basis points per annum from the date demand is made until such delinquent
principal and interest on such Loans are fully paid.
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(d) Any amounts owed hereunder may be prepaid at any time by the
Maker without penalty.
Section 1.03 SUBORDINATION. If the Maker is the Company or any
Guarantor (in the case the Holder is not the Company or another Guarantor),
all amounts owed hereunder shall be subordinated in right of payment to the
payment and performance of the obligations of the Company under the
Indenture, the Securities, the Guarantees or any other Indebtedness ranking
PARI PASSU with the Securities.
ARTICLE II
EVENTS OF DEFAULT
Section 2.01 EVENTS OF DEFAULT. If after the date of issuance of
this Loan, a Default or Event of Default has occurred under the Indenture
then (x) in the event the Maker is not (i) a Guarantor (in the case where the
Holder is not the Company or another Guarantor) or (ii) the Company, all amounts
owing under the Loans hereunder shall be immediately due and payable (whether or
not demand has been made) to the Holder, (y) in the event the Maker is the
Company, the amounts owing under the Loans hereunder shall not be due and
payable and (z) in the event the Maker is a Guarantor and the Holder is not the
Company or another Guarantor, the amounts owing under the Loans hereunder shall
not be due and payable; PROVIDED, HOWEVER, that if such Default or Event of
Default has been waived, cured or rescinded, such amounts shall no longer be due
and payable in the case of clause (x), and such amounts may be paid in the case
of clauses (y) and (z). If the Holder is a Subsidiary, then the Holder hereby
agrees that if it receives any payments or distributions on any Loan from the
Company or a Guarantor which is not payable pursuant to clause (y) or (z) of the
prior sentence after any Default or Event of Default has occurred under the
Indenture and which Default or Event of Default is continuing and has not been
waived, cured or rescinded, it will pay over and deliver forthwith to the
Company or such Guarantor, as the case may be, all such payments and
distributions and until so paid over shall hold such payments and distributions
in trust for the benefit of the Company or any such Guarantor, as the case may
be.
ARTICLE III
MISCELLANEOUS
Section 3.01 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Intercompany Note or consent to depart therefrom is permitted at any
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time for any reason, except with the consent of the Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities.
Section 3.02 ASSIGNMENT. No party to this Intercompany Note may
assign, in whole or in part, any of its rights and obligations under this
Intercompany Note, except to its legal successor in interest.
Section 3.03 THIRD PARTY BENEFICIARIES. The holders of the
Securities or any other Indebtedness ranking PARI PASSU with the Securities
shall be third party beneficiaries to this Intercompany Note and shall have
the right to enforce this Intercompany Note against the Maker.
Section 3.04 HEADINGS. Article and Section headings in this
Intercompany Note are included for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose.
Section 3.05 ENTIRE AGREEMENT This Intercompany Note sets forth the
entire agreement of the parties with respect to its subject matter and
supersedes all previous understandings, written or oral, in respect thereof.
Section 3.06 GOVERNING LAW. THIS INTERCOMPANY NOTE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF).
Section 3.07 WAIVERS. The Maker hereby waives presentment, demand
for payment, notice of protest and all other demands and notices in connection
with the delivery, acceptance, performance or enforcement hereof.
By:
------------------------------------
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BORROWINGS, MATURITIES, AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Maturity Principal Unpaid
Borrowing/ Borrowing/ Paid or Principal Notation
Date Principal Principal Unpaid Balance Made by
- -------- ---------- ---------- --------- ---------- ---------
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