Exhibit 4.2
SECOND SUPPLEMENTAL INDENTURE TO
AMENDED AND RESTATED INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of December 11, 1998, among HMH
PROPERTIES, INC., a Delaware corporation (the "Company"), the Guarantors and
Subsidiary Guarantors named in the Amended and Restated Indenture, dated as of
August 5, 1998 (the "Indenture"), and MARINE MIDLAND BANK, as Trustee (the
"Trustee").
RECITALS
WHEREAS, the Company, the Guarantors, the Subsidiary Guarantors and the
Trustee executed and delivered the Amended and Restated Indenture, dated as of
August 5, 1998, amending and restating the form of Indenture previously filed as
Exhibit 4.1 to the Registration Statement (No. 333-50729) filed with the
Securities and Exchange Commission ("Commission") on Form S-3 by the Company,
the Guarantors and the Subsidiary Guarantors;
WHEREAS, the Company, the Guarantors and the Subsidiary Guarantors desire
to create a series of Securities to be issued under the Indenture, as hereby
supplemented, to be known as the 8.45% Series C Senior Notes due 2008 and
Guarantees thereof of the Guarantors and Subsidiary Guarantees thereof of the
Subsidiary Guarantors (hereinafter, the "Series C Notes");
WHEREAS, Section 9.1.(e) of the Indenture provides that the Company, the
Guarantors, the Subsidiary Guarantors and the Trustee may amend or supplement
the Indenture without the written consent of the Holders of the outstanding
Securities to provide for the issuance of and establish the form and terms and
conditions of Securities of any Series as permitted by the Indenture;
WHEREAS, Section 9.1(a) of the Indenture provides that the Company, the
Guarantors, the Subsidiary Guarantors and the Trustee may amend or supplement
the Indenture without the written consent of the Holders of the outstanding
Securities to cure any ambiguity, defect or inconsistency therein;
WHEREAS, all acts and things prescribed by the Indenture, by law and by the
Certificate of Incorporation and the Bylaws of the Company, the Guarantors, the
Subsidiary Guarantors and the Trustee necessary to make this Second Supplemental
Indenture a valid instrument legally binding on the Company, the Guarantors, the
Subsidiary Guarantors and the Trustee, in accordance with its terms, have been
duly done and performed; and
WHEREAS, all conditions precedent to amend or supplement the Indenture have
been met;
NOW, THEREFORE, to comply with the provisions of the Indenture, and in
consideration of the above premises, the Company, the Guarantors, the Subsidiary
Guarantors and the Trustee covenant and agree as follows:
ARTICLE 1
Section 1.01. Nature of Supplemental Indenture. This Second Supplemental
--------------------------------
Indenture supplements the Indenture and does and shall be deemed to form a part
of, and shall be construed in connection with and as part of, the Indenture for
any and all purposes.
Section 1.02. Establishment of New Series. Pursuant to Section 2.2 of the
---------------------------
Indenture, there is hereby established the Series C Notes having the terms,
in addition to those set forth in the Indenture and this Second Supplemental
Indenture, set forth in the form of Series C Note, attached hereto as
Exhibit A, which is incorporated herein as a part hereof.
- ---------
Section 1.03. Optional Redemption. The Company will not have the right to
-------------------
redeem any Series C Notes prior to December 1, 2003. The Series C Notes will be
redeemable at the option of the Company, in whole or in part, at any time, and
from time to time, on and after December 1, 2003, upon not less than 30 days'
nor more than 60 days' notice to each Holder of such Securities to be redeemed,
at the following redemption prices (expressed as percentages of the principal
amount thereof) if redeemed during the 12-month period commencing December 1 of
the years indicated below, in each case (subject to the right of Holders of
record on a Record Date that is on or prior to such redemption date to receive
interest due on the corresponding Interest Payment Date), together with accrued
and unpaid interest thereon to the redemption date:
SERIES C
---------
YEAR NOTES
---- ---------
2003........................ 104.225%
2004........................ 102.817%
2005........................ 101.408%
2006 and thereafter......... 100.000%
2
In the case of a partial redemption, the Trustee shall select the
Securities or portions thereof for redemption on a pro rata basis, by lot or in
such other manner it deems appropriate and fair. The Securities may be redeemed
in part in multiples of $1,000 only.
The Series C Notes will not have the benefit of any sinking fund.
ARTICLE 2
Section 2.01. The term "Subsidiary Guarantors" means, with respect to
the Series C Notes, (A) the Initial Subsidiary Guarantors identified in the
Indenture (in the definition of "Subsidiary Guarantors" contained therein) and
(B) any Future Subsidiary Guarantors that become Subsidiary Guarantors pursuant
to the terms of the Indenture, but excluding any Persons whose Guarantees have
been released pursuant to the terms of the Indenture. The term "Guarantors"
means, with respect to the Series C Notes, Host and each other Parent of the
Company. The provisions of Article 12 will be applicable to the Series C Notes.
Section 2.02. The second sentence of the definition of "Subsidiary
Guarantee" set forth in Section 1.01 of the Indenture shall read, for purposes
of the Series C Notes, as follows: "Each Subsidiary Guarantee with respect to
the Series C Notes will be a senior obligation of the Subsidiary Guarantor and
will be full and unconditional regardless of the enforceability of the Series C
Notes, the Second Supplemental Indenture and the Indenture."
ARTICLE 3
Section 3.01. Subject to the further provisions of this Article 3, the
covenants set forth in Article 4 of the Indenture shall be applicable to the
Series C Notes.
Section 3.02. Subject to Section 3.03 below, the provisions of Section
4.9 of the Indenture shall be applicable to the Series C Notes only until (but
not including) the Conversion Date. Subject to Section 3.03 below, the
provisions of Section 4.15 of the Indenture shall be applicable to the Series C
Notes only from and after the Conversion Date.
Section 3.03. The provisions of Sections 4.8, 4.9, 4.10, 4.11, 4.12 and
4.15 of the Indenture shall be applicable to the Series C Notes only for so long
as and during any time that such Series C Notes are not rated Investment Grade.
3
ARTICLE 4
Section 4.01. Section 2.03 of that First Supplemental Indenture to
Amended and Restated Indenture dated August 5, 1998 among the Company, the
Guarantors, the Subsidiary Guarantors named in the Indenture and the Trustee is
hereby amended to correct a defect therein resulting from the inadvertent
omission therefrom of a reference to the Series A Notes as well as to the Series
B Notes. As amended and replaced, Section 2.03 shall be as follows:
Section 2.03. (a) The provisions of Section 4.8, 4.9, 4.10, 4.11, 4.12
and 4.15 shall be applicable to the Series A Notes only for so long as and
during any time that such Series A Notes are not rated Investment Grade.
(b) The provisions of Section 4.8, 4.9, 4.10, 4.11, 4.12
and 4.15 shall be applicable to the Series B Notes only for so long as and
during any time that such Series B Notes are not rated Investment Grade.
Section 4.02. The definition of "Host REIT" in the Indenture is hereby
amended to clarify that the entity into which Host will merge as part of the
REIT Conversion may be a Maryland corporation or any other entity that elects to
be treated as a real estate investment trust for purposes of Federal tax laws
and which will be the sole general partner of the Operating Partnership
following the REIT Conversion and the successor to Host in the Host REIT Merger.
As amended, the definition of "Host REIT" shall be as follows:
"Host REIT" means HMC Merger Corporation, a Maryland corporation, or any
other entity that elects to be treated as a real estate investment trust
for purposes of Federal tax laws and which will be the sole general
partner of the Operating Partnership following the REIT Conversion and the
successor to Host, and its successors and assigns.
ARTICLE 5
Section 5.01. Except as specifically modified herein, the Indenture is
in all respects ratified and confirmed and shall remain in full force and effect
in accordance with its terms.
Section 5.02. Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed or shall be construed to be assumed
by the Trustee by reason of this Second Supplemental Indenture. This Second
Supplemental
4
Indenture is executed and accepted by the Trustee subject to all the terms and
conditions set forth in the Indenture with the same force and effect as if those
terms and conditions were repeated at length herein and made applicable to the
Trustee with respect hereto.
Section 5.03. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the recitals contained herein, all of which
recitals are made solely by the Company, the Guarantors and the Subsidiary
Guarantors.
Section 5.04. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(B). EACH OF THE COMPANY, THE GUARANTORS AND
THE SUBSIDIARY GUARANTORS HEREBY IRREVOCA BLY SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. EACH OF THE COMPANY, THE GUARANTORS AND THE SUBSIDIARY GUARANTORS
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY, THE GUARANTORS AND THE SUBSIDIARY GUARANTORS IN ANY OTHER
JURISDICTION.
Section 5.05. The parties may sign any number of copies of this Second
Supplemental Indenture. Each signed copy shall be an original, but all of such
executed copies together shall represent the same agreement.
5
Section 5.06. All capitalized terms used in this Second Supplemental
Indenture which are not otherwise defined herein, shall have the respective
meanings specified in the Indenture, unless the context otherwise requires.
Section 5.07. The Series C Notes shall be issued in whole or in part in
the form of one or more Global Securities, registered in the name of Cede & Co.,
as nominee of the Depository Trust Company ("DTC").
6
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the date first written
above.
COMPANY
-------
HMH PROPERTIES, INC.,
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Executive Vice President
and Corporate Secretary
GUARANTORS
----------
HOST MARRIOTT CORPORATION
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Senior Vice President
and Corporate Secretary
HOST MARRIOTT HOSPITALITY
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Senior Vice President
and Corporate Secretary
SUBSIDIARY GUARANTORS
---------------------
HMH RIVERS, INC.
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: President and Corporate
Secretary
7
MARRIOTT SBM TWO CORPORATION
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Corporate Secretary
MARRIOTT PLP CORPORATION
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary
HMC RETIREMENT PROPERTIES, INC.
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: President and Secretary
HMH PENTAGON CORPORATION
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary
HMC SFO, INC.
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary
8
HMH MARINA, INC.
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary
HOST AIRPORT HOTELS, INC.
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary
HOST OF HOUSTON 1979
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary of
Managing Partner
HOST OF HOUSTON, LTD.
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary of
Managing Partner
HOST OF BOSTON, LTD.
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary of
Managing Partner
9
MARRIOTT FINANCIAL SERVICES, INC.
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary
HMC CAPITAL RESOURCES CORP.
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary
MARRIOTT SBM ONE CORPORATION
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary
YBG ASSOCIATES LLC
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Manager and Secretary
PRM CORPORATION
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary
10
MARRIOTT PARK RIDGE CORPORATION
By: /s/ Christopher G. Townsend
------------------------------
Name: Christopher G. Townsend
Title: Vice President and Secretary
MARINE MIDLAND BANK,
as Trustee
By: /s/ Frank J. Godino
------------------------------
Name: Frank J. Godino
Title: Vice President
11
EXHIBIT A
FORM OF 8.45% SERIES C SENIOR NOTE
Unless and until it is exchanged in whole or in part for Series C
Notes in definitive form, this Security may not be transferred except as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) ("DTC"), to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein./1/
HMH PROPERTIES, INC.
8.45% SERIES C SENIOR NOTE DUE 2008
CUSIP No. 40423QAG2
No. $
HMH Properties, Inc., a Delaware corporation (hereinafter called the
"Company," which term includes any successors under the Indenture hereinafter
referred to), for value received, hereby promises to pay to __________, or
registered assigns, the principal sum of $____________, on December 1, 2008.
This Security is one of the 8.45% Series C Senior Notes due 2008 referred to in
such Indenture (hereinafter referred to for purposes of this Series C Senior
Note collectively as the "Securities").
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
- -----------
/1/ To be used only if the Security is issued as a Global Security.
A-1
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
Dated:
HMH PROPERTIES, INC.,
a Delaware corporation
By:__________________________
Name:
Title:
Attest:__________________________
Name:
Title:
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein
referred to in the within-mentioned Indenture.
MARINE MIDLAND BANK,
as Trustee
By:______________________________
Authorized Signatory
HMH PROPERTIES, INC.
8.45% SERIES C SENIOR NOTE DUE 2008
1. Interest.
--------
HMH Properties, Inc., a Delaware corporation (hereinafter called the
"Company," which term includes any successors under the Indenture hereinafter
referred to), promises to pay interest on the principal amount of this Security
at the rate of 8.45% per annum from December 11, 1998 until maturity. To the
extent it is lawful, the Company promises to pay interest on any interest
payment due but unpaid on such principal amount at a rate of 8.45% per annum
compounded semi-annually.
The Company will pay interest semi-annually on March 15 and September
15 of each year (each, an "Interest Payment Date"), commencing March 15, 1999.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the Securities, from
the date of the original issuance. Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months.
2. Method of Payment.
-----------------
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date. Holders
must surrender Securities to a Paying Agent to collect principal payments.
Principal of, premium, if any, and interest on the Securities will be payable in
United States Dollars at the office or agency of the Company maintained for such
purpose, in the Borough of Manhattan, The City of New York or at the option of
the Company, payment of interest may be made by check mailed to the Holders of
the Securities at the addresses set forth upon the registry books of the
Company; provided, however, Holders of Global Securities will be entitled to
receive interest payments (other than at maturity) by wire transfer of
immediately available funds, if appropriate wire transfer instructions have been
received in writing by the Trustee not fewer than 15 days prior to the
applicable Interest Payment Date. Such wire instructions, upon receipt by the
Trustee, shall remain in effect until revoked by such Holder. No service charge
will be made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
3. Paying Agent and Registrar.
--------------------------
A-4
Initially, Marine Midland Bank will act as Paying Agent and Registrar.
The Company may change any Paying Agent, Registrar or co-Registrar without
notice to the Holders. The Company or any of its Subsidiaries may, subject to
certain exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
---------
The Company issued the Securities and the Guarantors and Subsidiary
Guarantors issued their Guarantees under an Amended and Restated Indenture,
dated as of August 5, 1998, as supplemented (the "Indenture"), between the
Company, the Guarantors, the Subsidiary Guarantors and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The Securities are limited in aggregate principal amount to
$500,000,000. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as in effect on the date of the Indenture. The Securities are subject to
all such terms, and Holders of Securities are referred to the Indenture and said
Act for a statement of them. The Securities are senior, general obligations of
the Company, secured initially by a pledge of Capital Stock of certain
Subsidiaries of the Company, which pledge is shared equally and ratably with the
Credit Facility, the Existing Senior Notes, the Series A Notes, the Series B
Notes and certain future Indebtedness of the Company ranking pari passu with
the Securities. Each Holder of this Security, by accepting the same, (a) agrees
to and shall be bound by the provisions of the Indenture, (b) authorizes and
directs the Trustee on his behalf to take such action as may be provided in the
Indenture and (c) appoints the Trustee his attorney-in-fact for such purpose.
5. Redemption.
----------
Except as provided in this Paragraph 5 or in Article 3 of the
Indenture, the Company shall not have the right to redeem any Security. The
Securities may be redeemed in whole or from time to time in part at any time on
and after December 1, 2003, at the option of the Company, at the Redemption
Price (expressed as a percentage of principal amount) set forth below with
respect to the indicated Redemption Date, in each case (subject to the right of
Holders of record on a Record Date that is on or prior to such Redemption Date
to receive interest due on the Interest Payment Date to which such Record Date
relates), plus any accrued but unpaid interest to the Redemption Date.
A-5
If redeemed during
the 12-month period
commencing December 1, Redemption Price
---------------------- -----------------
2003 . . . . . . . . . 104.225%
2004 . . . . . . . . . 102.817%
2005 . . . . . . . . . 101.408%
2006 and thereafter. . 100.000%
Any such redemption will comply with Article 3 of the Indenture.
6. Notice of Redemption.
--------------------
Notice of redemption will be sent by first class mail, at least
30 days and not more than 60 days prior to the Redemption Date to the Holder of
each Security to be redeemed at such Holder's last address as then shown upon
the registry books of the Registrar. Securities may be redeemed in part in
multiples of $1,000 only.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent on such Redemption Date, the
Securities called for redemption will cease to bear interest and the only right
of the Holders of such Securities will be to receive payment of the Redemption
Price, plus any accrued and unpaid interest to the Redemption Date.
7. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in registered form, without coupons, in denomina
tions of $1,000 and integral multiples of $1,000. A Holder may register the
transfer of, or exchange Securities in accordance with, the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities (a) selected for redemption except the unredeemed
portion of any Security being redeemed in part or (b) for a period beginning 15
Business Days before the mailing of a notice of an offer to repurchase or
redemption and ending at the close of business on the day of such mailing.
8. Persons Deemed Owners.
---------------------
The registered Holder of a Security may be treated as the owner of it
for all purposes.
A-6
9. Unclaimed Money.
---------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company at its written request. After that, all liability of the Trustee
and such Paying Agent(s) with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
-----------------------------------------
Except as set forth in the Indenture, if the Company irrevocably
deposits with the Trustee, in trust, for the benefit of the Holders, U.S. legal
tender, U.S. Government Obligations or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest on such Securities on the stated date for payment thereof or on the
redemption date of such principal or installment of principal of, premium, if
any, or interest on such Securities, the Company will be discharged from certain
provisions of the Indenture and the Securities (including the restrictive
covenants described in paragraph 12 below, but excluding its obligation to pay
the principal of, premium, if any, and interest on the Securities). Upon
satisfaction of certain additional conditions set forth in the Indenture, the
Company may elect to have its obligations and the obligations of the Guarantors
and Subsidiary Guarantors discharged with respect to outstanding Securities.
11. Amendment; Supplement; Waiver.
-----------------------------
The Company, the Guarantors, the Subsidiary Guarantors and the Trustee may
enter into a supplemental indenture for certain limited purposes without the
consent of the Holders. Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
then outstanding, and any existing Default or Event of Default or compliance
with any provision may be waived with the consent of the Holders of a majority
in aggregate principal amount of the Securities then outstanding. Without
notice to or consent of any Holder, the parties thereto may under certain
circumstances amend or supplement the Indenture or the Securities to, among
other things, cure any ambiguity, defect or inconsistency, or make any other
change that does not adversely affect the rights of any Holder of a Security.
12. Restrictive Covenants.
---------------------
The Indenture imposes certain limitations on the ability of the
Company, the Subsidiary Guarantors and any of their respective Restricted
Subsidiaries to, among other things, incur additional Indebtedness and issue
A-7
Disqualified Stock, pay dividends or make certain other Restricted Payments,
enter into certain transactions with Affiliates, incur Liens, sell assets and
subsidiary stock, merge or consolidate with any other Person or transfer (by
lease, assignment or otherwise) substantially all of the properties and assets
of the Company. The limitations are subject to a number of important
qualifications and exceptions and certain restrictive covenants will cease to be
applicable under certain circumstances. The Company must periodically report to
the Trustee on compliance with such limitations.
13. Repurchase at Option of Holder.
------------------------------
(a) If there is a Change of Control Triggering Event, the Company
shall be required to offer irrevocably to purchase on the Change of Control
Purchase Date all outstanding Securities at a purchase price equal to 101% of
the principal amount thereof, plus (subject to the right of Holders of record on
a Record Date that is on or prior to such Change of Control Purchase Date to
receive interest due on the Interest Payment Date to which such Record Date
relates) accrued and unpaid interest, if any, to the Change of Control Purchase
Date. Holders of Securities will receive a Change of Control Offer from the
Company prior to any related Change of Control Purchase Date and may elect to
have such Securities purchased by completing the form entitled "Option of Holder
to Elect Purchase" appearing below.
(b) The Indenture imposes certain limitations on the ability of the
Company, the Subsidiary Guarantors or any of their respective Restricted
Subsidiaries to sell assets and subsidiary stock. In the event the Net Cash
Proceeds from a permitted Asset Sale exceed certain amounts, as specified in the
Indenture, the Company will be required either to reinvest the proceeds of such
Asset Sale in a Related Business or other permitted investments, repay certain
Indebtedness or to make an offer to purchase each Holder's Securities at 100% of
the principal amount thereof, plus accrued interest, if any, to the purchase
date. The limitations and the Company's obligations with respect to the use of
proceeds from an Asset Sale are subject to a number of important qualifications
and exceptions and will cease to be applicable under certain circumstances.
14. Notation of Guarantee.
---------------------
As set forth more fully in the Indenture, the Persons constituting
Guarantors and Subsidiary Guarantors from time to time, in accordance with the
provisions of the Indenture, irrevocably and unconditionally and jointly and
severally guarantee, in accordance with Section 12.1 of the Indenture, to the
Holders and to the Trustee and its successors and assigns, that (i) the
principal of and interest on the Securities will be paid, whether at the Stated
Maturity or Interest Payment Dates, by acceleration, call for redemption or
otherwise, and all other obligations of the
A-8
Company to the Holders or the Trustee under the Indenture or this Security will
be promptly paid in full or performed, all in accordance with the terms of the
Indenture and this Security, and (ii) in the case of any extension of payment or
renewal of this Security or any of such other obligations, they will be paid in
full when due or performed in accordance with the terms of such extension or
renewal, whether at the Stated Maturity, as so extended, by acceleration or
otherwise. Such Guarantees shall cease to apply, and shall be null and void,
with respect to any such guarantor who, pursuant to Article 12 of the Indenture,
is released from its Guarantees, or whose Guarantees otherwise cease to be
applicable pursuant to the terms of the Indenture.
15. Successor
---------
When a successor assumes all the obligations of its predecessor under the
Securities and the Indenture, the predecessor will be released from those
obligations.
16. Defaults and Remedies.
---------------------
If an Event of Default with respect to the Securities occurs and is
continuing (other than an Event of Default relating to bankruptcy, insolvency or
reorganization of the Company), then either the Trustee or the Holders of 25% in
aggregate principal amount of the Securities then outstanding may declare all
Securities to be due and payable immediately in the manner and with the effect
provided in the Indenture. Holders of Securities may not enforce the Indenture
or the Securities, except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Securities may direct the Trustee in its exercise of any trust
or power with respect to such Securities. The Trustee may withhold from Holders
of Securities notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
17. Trustee and Agent Dealings with Company.
---------------------------------------
The Trustee and each Agent under the Indenture, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company, any Guarantor or Subsidiary Guarantor or any of their
Subsidiaries or any of their respective Affiliates, and may otherwise deal with
such Persons as if it were not the Trustee or such agent.
18. No Recourse Against Others.
--------------------------
No recourse for the payment of the principal of, premium, if any, or
interest
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on the Securities or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company, the Guarantors, or the Subsidiary Guarantors in the Indenture, or
in the Securities or because of the creation of any Indebtedness represented
thereby, shall be had against any incorporator, partner, stockholder, officer,
director, employee or controlling Person of the Company, the Guarantors or the
Subsidiary Guarantors or of any successor Person thereof, except as an obligor
or Guarantor of the Securities pursuant to the Indenture. Each Holder, by
accepting the Securities, waives and releases all such liability.
19. Authentication.
--------------
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
20. Abbreviations and Defined Terms.
-------------------------------
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Governing Law.
-------------
THE INDENTURE AND THE SECURITIES SHALL BE GOV ERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).
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[FORM OF ASSIGNMENT]
I or we assign this Security to
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
_______________________________
and irrevocably appoint __________ agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
Dated: _______________ Signed:
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee/**/
- -----------
/**/ NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The
New York Stock Exchange Medallion Program (MNSP); (iii) The Stock
Exchange Medal lion Program (SEMP); or (iv) in such other guarantee
program acceptable to the Trustee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.12 or Article 10 of the Indenture, check the appropriate
box:
[_] Section 4.12
[_] Article 10.
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.12 or Article 10 of the Indenture, as the case
may be, state the amount you want to be purchased: $________.
Date: ________________ Signature:
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee/***/
- -----------
/***/ NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The
New York Stock Exchange Medallion Program (MNSP); (iii) The Stock
Exchange Medal lion Program (SEMP); or (iv) in such other guarantee
program acceptable to the Trustee.
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized officer of
Principal Amount Principal Amount Security following Trustee or
Date of of this Global of this Global such decrease (or Securities
Exchange Security Security increase) Custodian
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