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EXHIBIT 4.1
INDENTURE dated as of February 1, 1994,
among LEAR SEATING CORPORATION, a Delaware
corporation (the "Company"), as issuer, and THE FIRST
NATIONAL BANK OF BOSTON, as trustee (the "Trustee").
Each Party hereto agrees as follows for the equal and ratable benefit
of the Holders of the Company's 8 1/4% Subordinated Notes Due 2002 (the
"Securities"):
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Acquired Indebtedness" means, with respect to the Company, Indebtedness of
a person existing at the time such person becomes a subsidiary of the Company
or assumed in connection with the acquisition by the Company or a subsidiary of
the Company of assets from such person, which assets constitute all of an
operating unit of such person, and not incurred in connection with, or in
contemplation of, such person becoming a subsidiary of the Company or such
acquisition.
"Affiliate" means, when used with reference to the Company or another
person, any person directly or indirectly controlling, controlled by, or under
direct or indirect common control with, the Company or such other person, as
the case may be. For the purposes of this definition, "control" when used with
respect to any specified person means the power to direct or cause the
direction of management or policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing. Notwithstanding the foregoing, the term Affiliate shall not include
any wholly owned subsidiary of the Company.
"Agent" means any Registrar, Paying Agent or agent for service of notices
and demands.
"Agent Bank" means Chemical Bank and/or its Affiliates together with any
bank which is or becomes a party to the Credit Agreement or any successor
to Chemical
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Bank and/or its Affiliates, and any other Agent Bank under the Credit
Agreement.
"Asset Sale" means any sale exceeding $2,000,000 or any series of sales in
related transactions exceeding $2,000,000 in the aggregate, by the Company or
any subsidiary of the Company, directly or indirectly, of properties or assets
other than in the ordinary course of business, including capital stock of a
subsidiary of the Company, except for (i) the sale of receivables by the
Company or any subsidiary of the Company in the ordinary course of business
consistent with past practices of the Company or any of its subsidiaries, or
the transfer of receivables to a special-purpose subsidiary of the Company and
the issuance by such special-purpose subsidiary, on a basis that is nonrecourse
(except for representations as to the status or eligibility of such receivables
or to the limited extent described in clause (vii)(B) of the definition of
"Permitted Indebtedness") to the Company or any other subsidiary of the
Company, of securities secured by such receivables, and (ii) any sale- and-
lease-back transaction involving a Capitalized Lease Obligation permitted under
Section 4.03.
"average weighted life" means, as of the date of determination, with
reference to any debt security, the quotient obtained by dividing (i) the sum
of the products of the number of years from the date of determination to the
dates of each successive scheduled principal payment of such debt security
multiplied by the amount of such principal payment by (ii) the sum of all such
principal payments.
"Board of Directors" means, with respect to any person, the Board of
Directors of such person or any duly authorized committee of such Board of
Directors.
"Board Resolution" means a copy of a resolution certified by the secretary
or an assistant secretary of such person to have been duly adopted by the Board
of Directors of such person or any duly authorized committee thereof and to be
in full force and effect on the date of such certification, and delivered to
the Trustee.
"Business Day" means a day that is not a Legal Holiday as defined in Section
12.07.
"capital stock" means any and all shares, interests, participations, rights
or other equivalents (however
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designated) of corporate stock and any and all forms of partnership interests
or other equity interests in a person.
"Capitalized Lease Obligation" means any lease obligation of a person
incurred with respect to any property (whether real, personal or mixed)
acquired or leased by such person and used in its business that is accounted
for as a capital lease on the balance sheet of such person in accordance with
GAAP.
"Cash Equivalents" means (A) any evidence of Indebtedness maturing, or
otherwise payable without penalty, not more than 365 days 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, (B) any certificate of deposit
maturing, or otherwise payable without penalty, not more than 365 days after
the date of acquisition issued by, or time deposit of, a commercial banking
institution that has combined capital and surplus of not less than
$300,000,000, whose debt is rated, at the time as of which any Investment
therein is made, "A2" (or higher) according to Moody's or "A" (or higher)
according to S & P, (C) commercial paper, maturing not more than 90 days after
the date of acquisition, issued by a corporation (other than an Affiliate or
subsidiary of the Company) organized and existing under the laws of the United
States of America or any jurisdiction thereof, with a rating, at the time as of
which any Investment therein is made, of "P-1" (or higher) according to Moody's
or "A-1" (or higher) according to S&P and (D) any money market deposit accounts
issued or offered by any domestic institution in the business of accepting
money market accounts or any commercial bank having capital and surplus in
excess of $300,000,000.
"Cash Proceeds" means, with respect to any Asset Sale, cash payments
(including any cash received by way of deferred payment pursuant to a note
receivable or otherwise, but only as and when so received) received from such
Asset Sale.
"Change of Control" means an event or series of events by which (i) a party
other than a Permitted Investor or any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) directly or indirectly
controlling, controlled by, or under common control with the Permitted
Investors (1) is or becomes the "beneficial owner"
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(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
person shall be deemed to have "beneficial ownership" of all shares that any
such person has the right to acquire without condition, other than the passage
of time, whether such right is exercisable immediately or only after the
passage of time) of 50% or more of the Voting Stock of the Company, (2) is or
becomes a shareholder of the Company with the right to appoint or remove
directors of the Company holding 50% or more of the voting rights at meetings
of the Board of Directors on all, or substantially all, matters or (3) is or
becomes able to exercise the right to give directions with respect to the
operating and financial policies of the Company with which the relevant
directors are obliged to comply by reason of: (A) provisions contained in the
organizational documents of the Company or (B) the existence of any contract
permitting such person to exercise control over the Company; provided, that the
Permitted Investors, and any person directly or indirectly controlling,
controlled by, or under common control with the Permitted Investors, together,
are the "beneficial owners" of a lesser percentage of the Voting Stock of the
Company than such other person and do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority of
the Board of Directors of the Company; (ii) the Company consolidates with, or
merges or amalgamates with or into another person or conveys, transfers, or
leases all or substantially all of its assets to any person, or any person
consolidates with, or merges or amalgamates 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 where (A) the outstanding Voting
Stock of the Company is changed into or exchanged for Voting Stock of the
surviving corporation which is not redeemable capital stock or (x) such Voting
Stock and (y) cash, securities and other property in an amount which could be
paid by the Company as a Restricted Payment pursuant to Section 4.03 (and such
amount shall be treated as a Restricted Payment subject to the provisions of
Section 4.03) and (B) the holders of the Voting Stock of the Company
immediately prior to such transaction own, directly or indirectly, not less
than a majority of the Voting Stock of the surviving corporation immediately
after such transaction; (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election by
such Board of Directors or whose nomination for election by
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the shareholders of the Company was approved by a vote of 66-2/3% of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Company then in office; or (iv) the stockholders of the
Company approve any plan or proposal for the liquidation or dissolution of the
Company (whether or not otherwise in compliance with the provisions of the
Indenture).
"Change of Control Triggering Event" means the occurrence of both a Change
of Control and a Rating Decline.
"Commercial Letter of Credit" means any letter of credit or similar
instrument issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by the Company
or any of its subsidiaries in the ordinary course of business of the Company or
such subsidiary.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Company" means the party named as such in this Indenture, or any other
obligor under this Indenture, until a successor replaces it pursuant to this
Indenture and thereafter means the successor.
"Consolidated" or "consolidated" means, when used with reference to any
amount, such amount determined on a consolidated basis in accordance with GAAP,
after the elimination of intercompany items.
"Consolidated Adjusted Net Worth" means, with respect to any person, as of
any date of determination, the total amount of stockholders' equity of such
person and its subsidiaries which would appear on the consolidated balance
sheet of such person as of the date of determination, less (to the extent
otherwise included therein) the following (the amount of such stockholders'
equity and deductions therefrom to be computed, except as noted below, in
accordance with GAAP): (i) an amount attributable to interests in subsidiaries
of such person held by persons other than such person or its subsidiaries; (ii)
any reevaluation or other write-up in book value of assets subsequent to
December 31, 1993, other than upon the acquisition of assets acquired in a
transaction to be accounted for by purchase
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accounting under GAAP made within twelve months after the acquisition of such
assets; (iii) treasury stock; (iv) an amount equal to the excess, if any, of
the amount reflected for the securities of any person which is not a subsidiary
over the lesser of cost or market value (as determined in good faith by the
Board of Directors) of such securities; and (v) Disqualified Stock of the
Company or any subsidiary of the Company.
"Consolidated Amortization Expense" means for any person, for any period,
the amortization of goodwill and other intangible items of such person and its
subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP.
"Consolidated Cash Flow Available for Interest Expense" means, for any
person and the Company, the sum of the aggregate amount, for the four fiscal
quarters for which financial information in respect thereof is available
immediately prior to the date of the transaction giving rise to the need to
calculate the Consolidated Cash Flow Available for Interest Expense (the
"Transaction Date"), of (i) Consolidated Net Income (Loss) of such person, (ii)
Consolidated Income Tax Expense, (iii) Consolidated Depreciation Expense, (iv)
Consolidated Amortization Expense, (v) Consolidated Interest Expense and (vi)
other noncash items reducing Consolidated Net Income (Loss), minus noncash
items increasing Consolidated Net Income (Loss). Consolidated Cash Flow
Available for Interest Expense for any period shall be adjusted to give pro
forma effect (to the extent applicable) to (i) each acquisition by the Company
or a subsidiary of the Company during such period up to and including the
Transaction Date (the "Reference Period") in any person which, as a result of
such acquisition, becomes a subsidiary of the Company, or the acquisition of
assets from any person which constitutes substantially all of an operating unit
or business of such person and (ii) the sale or other disposition of any assets
(including capital stock) of the Company or a subsidiary of the Company, other
than in the ordinary course of business, during the Reference Period, as if
such acquisition or sale or disposition of assets by the Company or any
subsidiary of the Company occurred on the first day of the Reference Period.
"Consolidated Depreciation Expense" means for any person, for any period,
the depreciation expense of such
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person and its subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP.
"Consolidated Income Tax Expense" means, for any person, for any period, the
aggregate of the income tax expense of such person and its subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any person, for any period, the
sum of (a) the Interest Expense of such person and its subsidiaries for such
period, determined on a consolidated basis, (b) dividends in respect of
preferred or preference stock of a subsidiary of the Company held by persons
other than the Company or a wholly owned subsidiary of the Company and (c)
interest incurred during the period and capitalized by the Company and its
subsidiaries on a consolidated basis in accordance with GAAP. For purposes of
clause (b) of the preceding sentence, dividends shall be deemed to be an amount
equal to the actual dividends paid divided by one minus the applicable actual
combined Federal, state, local and foreign income tax rate of the Company
(expressed as a decimal), on a consolidated basis, for the fiscal year
immediately preceding the date of the transaction giving rise to the need to
calculate Consolidated Interest Expense.
"Consolidated Interest Expense Coverage Ratio" means, with respect to any
person, the ratio of (i) the aggregate amount of the applicable Consolidated
Cash Flow Available for Interest Expense of such person to (ii) the aggregate
Consolidated Interest Expense which such person shall accrue during the first
full fiscal quarter following the Transaction Date and the three fiscal
quarters immediately subsequent to such fiscal quarter, such Consolidated
Interest Expense to be calculated on the basis of the amount of such person's
Indebtedness (on a consolidated basis) outstanding on the Transaction Date and
reasonably anticipated by such person in good faith to be outstanding from time
to time during such period.
"Consolidated Net Income (Loss)" means, with respect to any person, for any
period, the aggregate of the net income (loss) of such person and its
subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP; provided that there shall be excluded from such net income (to the
extent otherwise included therein) (i) the net income (loss) of any person
which is not a subsidiary of such person and which is accounted for by the
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equity method of accounting, except to the extent of the amount of cash
dividends or distributions paid by such other person to such person or to a
subsidiary of such person, (ii) the net income (loss) of any person accrued
prior to the date on which it is acquired by such person or a subsidiary of
such person in a pooling of interests transaction, (iii) except for NS
Beiteiligungs GmbH (a German Foreign Subsidiary) or any successor entity, the
net income (loss) of any subsidiary of such person to the extent that the
declaration or payment of dividends or similar distributions or transfers or
loans by that subsidiary is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to such subsidiary, in each case
determined in accordance with GAAP, (iv) any gain or loss, together with any
related provision for taxes in respect of such gain or loss, realized upon the
sale or other disposition (including, without limitation, dispositions pursuant
to sale-and-lease-back transactions) of any asset or property outside of the
ordinary course of business and any gain or loss realized upon the sale or
other disposition by such person of any capital stock or marketable securities
and (v) any noncash charges incurred by the Company at any time in connection
with the adoption of SFAS 106.
"Corporate Trust Office" means the office of the Trustee located in New
York, New York, at which at any particular time its corporate services business
shall be principally administered, which office at the date of execution of
this Indenture is located at The First National Bank of Boston, c/o BancBoston
Trust Company of New York, 55 Broadway - 3rd Floor, New York, NY 10006.
"Credit Agreement" means the Amended and Restated Credit Agreement dated as
of October 25, 1993 among the Company, Lear Holdings Corporation, the several
financial institutions parties thereto from time to time (the "Banks") and the
Agent Bank, as the same has been heretofore amended and may be amended
hereafter from time to time, and any subsequent credit agreement constituting a
refinancing, extension or modification thereof.
"Default" means any event which is, or after notice or lapse of time or both
would be, an Event of Default.
"Defaulted Interest" means the interest provided for in Section 2.13.
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"Disinterested Director" means, with respect to an Affiliate Transaction or
series of related Affiliate Transactions, a member of a Board of Directors who
has no financial interest, and whose employer has no financial interest, in
such Affiliate Transaction or series of related Affiliate Transactions.
"Disqualified Stock" means any capital stock of the Company or any
subsidiary of the Company which, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the maturity date of the
Securities or which is exchangeable or convertible into debt securities of the
Company or any subsidiary of the Company except to the extent that such
exchange or conversion rights cannot be exercised prior to the maturity of the
Securities.
"Event of Default" shall have the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Subsidiary" means any subsidiary of the Company organized and
conducting its principal operations outside the United States.
"GAAP" means generally accepted accounting principles on a basis
consistently applied.
"guarantee" means, as applied to any Obligation, (i) a guarantee (other than
by endorsement of negotiable instruments for collection in the ordinary course
of business), direct or indirect, in any manner, of any part or all of such
Obligation or (ii) an agreement, direct or indirect, contingent or otherwise,
the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of nonperformance) of any part
or all of such Obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit. Notwithstanding anything
herein to the contrary, a guarantee shall not include any agreement solely
because such agreement creates a Lien on the assets of any person. The amount
of a guarantee shall be deemed to be the maximum amount of
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the Obligation guaranteed for which the guarantor could be held liable under
such guarantee.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" means (without duplication), with respect to any person, any
indebtedness, contingent or otherwise, in respect of borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such person or
only to a portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (except any such balance that constitutes a trade payable
in the ordinary course of business that is not overdue by more than 120 days or
is being contested in good faith), if and to the extent any of the foregoing
indebtedness would appear as a liability upon a balance sheet of such person
prepared on a consolidated basis in accordance with GAAP, and shall also
include letters of credit, Obligations with respect to Interest Swap
Obligations, any Capitalized Lease Obligation, the maximum fixed repurchase
price of any Disqualified Stock, Obligations secured by a Lien to which any
property or asset, including leasehold interests under Capitalized Lease
Obligations and any other tangible or intangible property rights, owned by such
person is subject, whether or not the Obligations secured thereby shall have
been assumed (provided that, if the Obligations have not been assumed such
Obligations shall be deemed to be in an amount not to exceed the fair market
value of the property or properties to which the Lien relates, as determined in
good faith by the Board of Directors of such person and as evidenced by a Board
Resolution), and guarantees of items which would be included within this
definition (regardless of whether such items would appear upon such balance
sheet; provided that for the purpose of computing the amount of Indebtedness
outstanding at any time, such items shall be excluded to the extent that they
would be eliminated as intercompany items in consolidation). For purposes of
the preceding sentence, the maximum fixed repurchase price of any Disqualified
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Stock as if such Disqualified
Stock were repurchased on any date on which Indebtedness shall be required to
be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Stock (or any equity
security for
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which it may be exchanged or converted), such fair market value shall be
determined in good faith by the Board of Directors of such person.
"Indenture" means this Indenture, as amended, supplemented or modified from
time to time.
"Independent Financial Advisor" means a reputable accounting, appraisal or
investment banking firm that is, in the reasonable judgment of the Board of
Directors of the Company or a subsidiary of the Company, qualified to perform
the task for which such firm has been engaged hereunder and disinterested and
independent with respect to the Company and its Affiliates.
"Initial Public Offering" means the sale of capital stock of the Company
pursuant to (a) a registration statement under the Securities Act that has been
declared effective by the SEC or (b) a public offering outside the United
States and which results, in either case, in an active trading market for such
shares. An active trading market shall be deemed to exist if such shares are
listed or quoted on the New York Stock Exchange, the American Stock Exchange or
the NASDAQ National Market System or any major international trading market or
exchange.
"Interest Expense" means for any person, for any period, the aggregate
amount of interest in respect of Indebtedness (including all fees and charges
owed with respect to letters of credit and bankers' acceptance financing and
the net costs associated with Interest Swap Obligations and all but the
principal component of rentals in respect of Capitalized Lease Obligations)
incurred or scheduled to be incurred by such person during such period, all as
determined in accordance with GAAP, except that non-cash amortization or
write-off of deferred financing fees and expenses shall not be included in the
calculation of Interest Expense. For purposes of this definition, (a) interest
on Indebtedness determined on a fluctuating basis for periods succeeding the
date of determination shall be deemed to accrue at a rate equal to the rate of
interest on such Indebtedness in effect on the last day of the fiscal quarter
immediately preceding the date of determination and (b) interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined in good faith by the chief financial officer and the
chief accounting officer of such person to be the rate of interest implicit in
such Capitalized Lease Obligation in accordance
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with GAAP (including Statement of Financial Accounting Standards No. 13 of the
Financial Accounting Standards Board).
"Interest Swap Obligation" means, with respect to any person, the
Obligations of such person pursuant to any arrangement with any other person
whereby, directly or indirectly, such person is entitled to receive from time
to time periodic payments calculated by applying either a floating or a fixed
rate of interest on a stated notional amount in exchange for periodic payments
made by such person calculated by applying a fixed or a floating rate of
interest on the same notional amount.
"Investment" of any person means (i) all investments by such person in any
other person in the form of loans, advances or capital contributions, (ii) all
guarantees of Indebtedness or other obligations of any other person by such
person, (iii) all purchases (or other acquisitions for consideration) by such
person of Indebtedness, capital stock or other securities of any other person
and (iv) all other items that would be classified as investments (including,
without limitation, purchases of assets outside the ordinary course of
business) on a balance sheet of such person prepared in accordance with GAAP.
"Investment Grade" is defined as BBB- or higher by S&P or Baa3 or higher by
Moody's or the equivalent of such ratings by S&P or Moody's.
"Letters of Credit" means the Letters of Credit as defined in the Credit
Agreement as in effect on October 25, 1993.
"Lien" means any lien, security interest, charge or encumbrance of any kind
(including any conditional sale or other title retention agreement or any lease
creating a Capitalized Lease Obligation).
"Management Investors" means the persons who are designated as Management
Investors in the Stockholders Agreement.
"Moody's" means Moody's Investor Services, Inc. or if Moody's ceases to make
a rating of the Securities publicly available, a nationally recognized
securities rating agency selected by the Company.
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"Net Cash Proceeds" means, with respect to any Asset Sale, the Cash Proceeds
of such Asset Sale net of fees, commissions, expenses and other costs of sale
(including payment of the outstanding principal amount of, premium or penalty,
if any, and interest on any Indebtedness which is either secured by a Lien on
the stock or other assets sold or can be or is accelerated by such sale), taxes
paid or payable as a result thereof, and any amount required to be paid to any
person (other than the Company or any of its subsidiaries) owning a beneficial
interest in the stock or other assets sold, provided that when any non-cash
consideration for an Asset Sale is converted into cash, such cash shall then
constitute Net Cash Proceeds.
"Obligation" means any principal, interest, premium, penalties, fees and any
other liabilities payable under the documentation governing any Indebtedness.
"Officer" of any person means the Chairman of the Board, the President, any
Vice President, the Treasurer, the Secretary or the Controller of such person.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer, Assistant Secretary or Assistant Controller
of any person.
"Opinion of Counsel" means a written opinion from legal counsel prepared in
accordance with Sections 12.04 and 12.05. The counsel may be an employee of or
counsel to the Company.
"Permitted Indebtedness" means: (i) Indebtedness of the Company pursuant to
its Obligations under, or Indebtedness of any subsidiary of the Company under,
the Credit Agreement; provided that in no event shall the aggregate amount of
Indebtedness permitted to be outstanding at any one time pursuant to this
clause (i) exceed $425,000,000 (less (x) any amounts outstanding in respect of
the United States, Canada and Mexico under the program described in clause (xi)
below (the "North American clause (xi) amounts") and (y) any amounts
permanently repaid under the Credit Agreement but without deducting payments
under the revolving credit facility and the swingline facility of the Credit
Agreement unless the commitments thereunder have been permanently reduced and
without deducting under this subclause (y) any such permanent repayments or
permanent reductions made in respect of the North American clause (xi)
amounts); (ii) Indebtedness represented by guarantees of
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Indebtedness which is permitted by Section 4.03; (iii) Indebtedness evidenced
by the Securities; (iv) Indebtedness of the Company to any subsidiary of the
Company and Indebtedness of any subsidiary of the Company to the Company or
another subsidiary of the Company, provided that the obligations of the Company
to any of its subsidiaries with respect to such Indebtedness shall be subject
to a subordination agreement between the Company and its subsidiaries providing
for the subordination of such obligations in right of payment from and after
such time as all Securities issued and outstanding shall become due and payable
(whether at stated maturity, by acceleration or otherwise) to the payment and
performance of the Company's obligations under this Indenture and the
Securities and provided further that the Company or such subsidiary shall not
become liable to any person other than the Company or a subsidiary of the
Company with respect thereto; (v) Indebtedness of the Company or any subsidiary
of the Company represented by Interest Swap Obligations, provided that such
Interest Swap Obligations are related to payment Obligations on Indebtedness
otherwise permitted by Section 4.03 and shall not result in an increase in the
principal amount of the relevant underlying outstanding Indebtedness; (vi)
Indebtedness of the Company and its subsidiaries, and any undrawn amounts under
the Specified Lines of Credit or legally binding revolving credit or standby
credit facilities existing on the date of this Indenture and Refinancing
Indebtedness in respect of such Indebtedness or amounts; (vii) Indebtedness of
the Company or any of its subsidiaries in respect of guarantees of receivables
originated by the Company or any of its subsidiaries and sold to other persons
to the extent that (A) the sale of such receivables does not constitute an
Asset Sale and (B) such guarantees are in respect of warranties granted by the
Company on the products giving rise to such receivables and such guarantees are
not in respect of any other aspect of such receivables including, without
limitation, the capacity of any customer to meet its obligations under such
receivables; (viii) Indebtedness incurred for working capital purposes by
Foreign Subsidiaries in aggregate principal amount at any one time outstanding
not to exceed (in each case calculated based on currency exchange rates in
effect at the time of any proposed incurrence of Indebtedness) (A) for Foreign
Subsidiaries organized under the laws of countries located in Europe,
$45,000,000 in the aggregate, (B) for Foreign Subsidiaries organized under the
laws of Mexico, $30,000,000 in the aggregate, and (C) for Foreign Subsidiaries
organized
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under the laws of Canada, $25,000,000 in the aggregate; (ix) Indebtedness of
the Company and its subsidiaries in respect of guarantees of Indebtedness of
less than majority owned persons, provided that in no event shall Indebtedness
permitted pursuant to this clause (ix) exceed $5,000,000; (x) other
Indebtedness of the Company and of any subsidiary of the Company, provided
that in no event shall the aggregate amount of Indebtedness of the Company and
of subsidiaries of the Company permitted to be outstanding pursuant to this
clause (x) at any one time exceed $50,000,000; and (xi) Indebtedness of
special-purpose subsidiaries of the Company in respect of securities secured by
receivables transferred to such special-purpose subsidiaries by the Company or
a subsidiary of the Company, provided that (A) the transfer of such receivables
does not constitute an Asset Sale, (B) such special-purpose subsidiaries engage
in no activities other than the purchase of such receivables and the issuance
of such securities, and (C) such securities are non-recourse to the Company or
any subsidiary of the Company (except for representations as to the status or
eligibility of such receivables or to the limited extent described in clause
(vii)(B) above in this definition).
"Permitted Investors" means the parties to the Stockholders Agreement (other
than the Company) and their respective Affiliates.
"Permitted Liens" means: (i) Liens for taxes, assessments, governmental
charges or claims which are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and if a reserve or
other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor; (ii) statutory Liens of landlords and
carriers', warehousemen's, mechanics', suppliers', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and with respect
to amounts not yet delinquent or being contested in good faith by appropriate
process of law, if a reserve or other appropriate provision, if any, as shall
be required by GAAP shall have been made therefor; (iii) Liens incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security; (iv)
Liens incurred or deposits made to secure the performance of tenders, bids,
leases, statutory obligations, surety and appeal bonds, government contracts,
performance and return-of-money bonds and other Obligations of like nature
incurred
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in the ordinary course of business (exclusive of Obligations for the payment of
borrowed money); (v) easements, rights-of-way, restrictions, zoning provisions
and other governmental restrictions and other similar charges or encumbrances
not interfering in any material respect with the business of the Company or any
of its subsidiaries; (vi) judgment Liens not giving rise to a Default or Event
of Default; (vii) leases or subleases granted to others not interfering in any
material respect with the business of the Company or any of its subsidiaries;
(viii) Liens encumbering customary initial deposits and margin deposits, and
other Liens incurred in the ordinary course of business and which are within
the general parameters customary in the industry, in each case securing
Indebtedness under Interest Swap Obligations; (ix) any interest or title of a
lessor in the property subject to any Capitalized Lease Obligation or operating
lease or any Lien granted by a lessor on such property which does not interfere
in any material respect with the business of the Company and its subsidiaries;
(x) Liens arising from filing UCC financing statements regarding leases; (xi)
Liens securing reimbursement Obligations with respect to Commercial Letters of
Credit which encumber documents and other property relating to such Commercial
Letters of Credit and the products and proceeds thereof; (xii) other liens
existing on the date of this Indenture; and (xiii) other Liens to secure
Obligations not in excess of $1,000,000 in the aggregate at any time
outstanding, except to secure Indebtedness; and (xiv) Liens securing
Indebtedness permitted pursuant to clauses (i), (v), (vi), (viii), (x) and (xi)
of the definition of Permitted Indebtedness.
"person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"principal" of a debt security means the principal of the security plus, if
such security has been called for redemption, the premium, if any, payable on
such security upon redemption of such security.
"Rating Decline" means the occurrence of the following on, or within 90 days
after, the date of public notice of the occurrence of a Change of Control or of
the intention of the Company to effect a Change of Control (which period shall
be extended so long as the rating of the Securities is under publicly announced
consideration for
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possible downgrading by either Moody's or S&P): (i) in the event that the
Securities are rated by either Moody's or S&P prior to the date of such public
notice as Investment Grade, the rating of the Securities by both such rating
agencies shall be decreased to below Investment Grade or (ii) in the event the
Securities are rated below Investment Grade by both such rating agencies prior
to the date of such public notice, the rating of the Securities by either
rating agency shall be decreased by one or more gradations (including
gradations within rating categories as well as between rating categories).
"Redemption Date" means, with respect to any Security to be redeemed, the
date fixed for such redemption pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be redeemed, the
price fixed for such redemption pursuant to this Indenture as set forth in
paragraph 5 of the form of Security annexed hereto as Exhibit A.
"refinance" has the meaning specified in the definition of "Refinancing
Indebtedness", and "refinances", "refinancing" and "refinancings" have
correlative meanings.
"Refinancing Indebtedness" means Indebtedness of the Company and its
subsidiaries, all of the net proceeds of which (after customary fees, expenses
and costs related to the incurrence of such Indebtedness) are applied to repay,
refund, prepay, repurchase, redeem, defease, retire or refinance (collectively,
"refinance") outstanding Indebtedness permitted to be incurred under the terms
of this Indenture; provided that Refinancing Indebtedness that refinances any
Permitted Indebtedness shall be deemed to be incurred and to be outstanding
under the relevant clause in the definition of "Permitted Indebtedness"; and
provided further that (A) the original issue amount of the Refinancing
Indebtedness shall not exceed the maximum principal amount and accrued interest
of the Indebtedness to be repaid or, if greater in the case of clause (i) of
the definition of Permitted Indebtedness, permitted to be outstanding under the
agreements governing the Indebtedness being refinanced (or if such Indebtedness
was issued at an original issue discount, the original issue price plus
amortization of the original issue discount at the time of the incurrence of
the Refinancing Indebtedness) plus the amount of customary fees, expenses and
costs related to the incurrence of such Refinancing Indebtedness, (B)
Refinancing
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Indebtedness incurred by any subsidiary shall not be used to refinance
outstanding Indebtedness of the Company and (C) with respect to any Refinancing
Indebtedness which refinances Indebtedness which ranks pari passu or junior in
right of payment to the Securities, (1) the Refinancing Indebtedness has an
average weighted life which is equal to or greater than the average weighted
life of the Indebtedness being refinanced, (2) if such Indebtedness being
refinanced is pari passu in right of payment to the Securities, such
Refinancing Indebtedness does not rank senior in right of payment to the
payment of principal of and interest on the Securities, and (3) if such
Indebtedness being refinanced is subordinated to the Securities, such
Refinancing Indebtedness is subordinated to the Securities to the same extent
and on substantially the same terms.
"Representative" means the trustee, agent or representative for an issue of
Senior Indebtedness.
"Restricted Debt Prepayment" means any purchase, redemption, defeasance
(including, but not limited to, in substance or legal defeasance) or other
acquisition or retirement for value (collectively a "prepayment"), directly or
indirectly, by the Company or a subsidiary of the Company (other than to the
Company or a subsidiary of the Company), prior to the scheduled maturity or
prior to any scheduled repayment of principal or sinking fund payment in
respect of Indebtedness of the Company or such subsidiary which would be
subordinate in right of payment to the Securities ("Prepaid Debt"); provided,
however, that (i) any such prepayment of any Prepaid Debt (including without
limitation the Subordinated Debentures) shall not be deemed to be a Restricted
Debt Prepayment to the extent such prepayment is made (x) with the proceeds of
the substantially concurrent sale (other than to a subsidiary of the Company)
of shares of the capital stock (other than Disqualified Stock) of the Company
or rights, warrants or options to purchase such capital stock of the Company or
(y) in exchange for or with the proceeds from the substantially concurrent
issuance of Refinancing Indebtedness and (ii) no Default or Event of Default
shall have occurred and be continuing at the time or shall occur as a result of
such sale of capital stock or issuance of such Indebtedness.
"Restricted Investment" means, with respect to any person, any Investments
by such person in (i) any of its Affiliates (other than its subsidiaries) or in
any person that becomes an Affiliate (unless it becomes a subsidiary)
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as a result of such Investment to the extent that the aggregate amount of all
such Investments made after the date of this Indenture, whether or not
outstanding, less the amount of cash received by such person upon the
disposition of any such Investment, exceeds $25,000,000; (ii) any executive
officer or director of such person or (iii) any executive officer or director
of any Affiliate or any wholly owned subsidiary of such person; provided, that
in the case of clauses (ii) and (iii), (x) loans to any individual executive
officer or director of such person in an amount less than $100,000 in the
aggregate outstanding at any time which have been approved by the chief
executive officer of such person and (y) such loans in excess of that amount
which have been approved by a majority of the Disinterested Directors of such
person shall not be considered Restricted Investments.
"Restricted Payment" means (i) any Restricted Stock Payment, (ii) any
Restricted Debt Prepayment or (iii) any Restricted Investment.
"Restricted Stock Payment" means (i) with respect to the Company, any
dividend, either in cash or in property (except dividends payable in Common
Stock), on, or the making by the Company of any other distribution in respect
of, its capital stock, now or hereafter outstanding, or the redemption,
repurchase, retirement or other acquisition for value by the Company or any
subsidiary of the Company, directly or indirectly, of capital stock of the
Company or any warrants, rights (other than exchangeable or convertible
Indebtedness of the Company) or options to purchase or acquire shares of any
class of the Company's capital stock, now or hereafter outstanding, and (ii)
with respect to any subsidiary of the Company, any redemption, repurchase,
retirement or other acquisition for value by the Company or a subsidiary of the
Company of capital stock of such subsidiary or any warrants, rights (other than
exchangeable or convertible Indebtedness of any subsidiary of the Company), or
options to purchase or acquire shares of any class of capital stock of such
subsidiary, now or hereafter outstanding, except with respect to capital stock
of such subsidiary or such warrants, rights or options owned by (x) the Company
or a subsidiary of the Company or (y) any person which is not an Affiliate of
the Company.
"S&P" means Standard & Poor's Corporation, or if it ceases to make a rating of
the Securities publicly
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available, a nationally recognized securities rating agency selected by the
Company.
"Seating Business" means the production, design, development, manufacture,
marketing or sale of seat frames, seat systems, seat components, or vehicle
interiors or any related businesses.
"SEC" means the Securities and Exchange Commission and any government agency
succeeding to its functions.
"Securities" means the 8 1/4% Subordinated Notes due 2002 of the Company
issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the Obligations of the Company with respect to
(i) any and all amounts payable by the Company under or in respect of its
Obligations (including reimbursement obligations in respect of letters of
credit) incurred and outstanding from time to time under the Credit Agreement,
or any refinancings thereof (including interest accruing on or after filing of
any petition in bankruptcy or reorganization relating to the Company, at the
rate specified in such Senior Indebtedness whether or not a claim for
post-filing interest is allowed in such proceeding), (ii) Interest Swap
Obligations related to its Obligations on Senior Indebtedness, (iii) any and
all amounts payable by the Company under or in respect of its Obligations
incurred and outstanding under the Senior Subordinated Notes or any
refinancings thereof, and (iv) any other Indebtedness of the Company, whether
outstanding on the date of this Indenture or hereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness is not senior in right of payment to
the Securities; provided that, notwithstanding the foregoing, Senior
Indebtedness shall not include (A) Indebtedness which is represented by the
Securities, (B) Indebtedness incurred in violation of this Indenture, (C)
Indebtedness which is represented by Disqualified Stock, (D) amounts payable or
any other Indebtedness to trade creditors created, incurred, assumed or
guaranteed by the Company or any subsidiary of the Company in the ordinary
course of business in connection with obtaining goods or services, (E) amounts
payable or any other Indebtedness to employees of the Company or any
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subsidiary of the Company as compensation for services, (F) Indebtedness
of the Company to a subsidiary of the Company, (G) any liability for Federal,
state, local or other taxes owed or owing by the Company, and (H) Indebtedness
represented by the Subordinated Debentures.
"Senior Subordinated Indebtedness" means, with respect to any person, any
Indebtedness of a person that specifically provides that such Indebtedness is
to rank pari passu with other Senior Subordinated Indebtedness of such person
and is not subordinated by its terms to any Indebtedness of such person which
is not Senior Indebtedness.
"Senior Subordinated Notes" means the Company's 11-1/4% Senior Subordinated
Notes due 2000, issued pursuant to an Indenture dated as of July 15, 1992,
among Lear Holdings Corporation, the Company, and The Bank of New York, as
trustee.
"Senior Subordinated Notes Trustee" means The Bank of New York, or any duly
appointed successor thereto, as trustee under an Indenture dated as of July 15,
1992, among Lear Holdings Corporation, the Company, and The Bank of New York,
as trustee.
"Significant Subsidiary" means one or more subsidiaries of the Company
which, in the aggregate, have (i) assets, or in which the Company and its other
subsidiaries have Investments, equal to or greater than 5% or more of the total
assets of the Company and its subsidiaries consolidated at the end of the most
recently completed fiscal year of the Company or (ii) consolidated gross
revenue equal to or exceeding 5% of the consolidated gross revenue of the
Company for its most recently completed fiscal year.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 2.13.
"Specified Lines of Credit" means the following informal lines of credit
existing on the date of this Indenture: (a) Indebtedness incurred by an
Austrian Foreign Subsidiary to Sparkasse Bank under a working capital credit
line in a principal amount not to exceed 20,000,000 Austrian schillings; (b)
Indebtedness incurred by a Mexican Foreign Subsidiary to Banco Internacional
under a note payable facility for working capital in principal amount not
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to exceed $15,000,000; (c) Indebtedness incurred by a Mexican Foreign
Subsidiary to Bancomer, Banco Mexicano and Banamex under a note payable
facility for working capital in principal amount not to exceed 45,000,000
Mexican pesos; (d) Indebtedness incurred by a Swedish Foreign Subsidiary to SE
Banken under a working capital credit facility in principal amount not to
exceed 6,500,000 Swedish Krona; and (e) Indebtedness consisting only of trade
acceptances of NS Beteiligungs GmbH and Lear Seating Sweden, AB in principal
amount not to exceed $1,000,000.
"Specified Senior Indebtedness" means (i) Indebtedness under the Credit
Agreement (or any refunding or refinancing thereof), (ii) any other single
issue of Senior Indebtedness (other than the Senior Subordinated Notes) having
an initial principal amount of $30,000,000 or more. For purposes of this
definition, a refinancing of any Specified Senior Indebtedness shall be treated
as such only if it ranks or would rank on a pari passu basis with the
Indebtedness refinanced.
"Stockholders Agreement" means the Amended and Restated Stockholders and
Registration Rights Agreement, dated as of September 27, 1991, among Lear
Holdings Corporation, Shearson Lehman Hutton Merchant Banking Portfolio
Partnership L.P., Shearson Lehman Hutton Offshore Investment Partnership- Japan
L.P., Shearson Lehman Hutton Offshore Investment Partnership L.P., Shearson
Lehman Hutton Capital Partners II, L.P., Shearson Lehman Hutton Merchant
Banking Partners, Inc., FIMA Finance Management Inc. and Management Investors.
"Subordinated Debentures" means the Company's Subordinated Debentures due
December 1, 2000, issued on December 22, 1988, pursuant to the Subordinated
Debenture Indenture.
"Subordinated Debenture Indenture" means the indenture between the Company
and Norwest Bank Minnesota, National Association, as Trustee governing the
Subordinated Debentures.
"subsidiary" of any person means (i) a corporation a majority of whose
capital stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by such person or by
such person and a subsidiary or subsidiaries of such person or by a subsidiary
or subsidiaries of such person or (ii) any other person (other than a
corporation) in which such person
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or such person and a subsidiary or subsidiaries of such person or a subsidiary
or subsidiaries of such persons, at the time, directly or indirectly, owned at
least a majority ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
77aaa-77bbbb), as in effect on the date of this Indenture (except as otherwise
provided in Section 9.03).
"Trustee" means the party named as such above until a successor replaces it
pursuant to this Indenture and thereafter means the successor.
"Trust Officer" means any officer in the Corporate Trust Division of the
Trustee or any other officer of the Trustee assigned by the Trustee to
administer this Indenture.
"UCC" means the Uniform Commercial Code in effect from time to time in the
State of New York.
"U.S. Government Obligations" means direct obligations of the United States
of America for the payment of which the full faith and credit of the United
States of America is pledged and which are non-callable at the option of the
issuer thereof.
"Voting Stock" means all classes of capital stock then outstanding of a
person normally entitled to vote in elections of directors.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Bankruptcy Law" .................. 6.01
"Custodian" ....................... 6.01
"Interest Payment Date" ........... Section 1
of Exh. A
hereto
"Legal Holiday" ................... 12.07
"Paying Agent" .................... 2.03
"Payment Blockage Period" ......... 10.02
"Purchase Date" ................... 11.01
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"Purchase Price" .................. 11.01
"Registrar" ....................... 2.03
"Repurchase Date" ................. 4.08
"Repurchase Offer" ................ 4.08
"Repurchase Offer Amount" ......... 4.08
"Repurchase Price" ................ 4.08
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Securities:
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires: (i) a term has the meaning assigned to it; (ii) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles; (iii) references to
GAAP shall mean generally accepted accounting principles in effect in the
United States as of the time and for the period as to which such accounting
principles are to be applied; (iv) notwithstanding the provisions of Section
1.04(iii), all ratios and calculations contained in this Indenture shall be
calculated in accordance with generally accepted accounting principles in
effect as of the date hereof; (v) "or" is not exclusive; (vi) words in the
singular include the plural, and in the plural include the
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singular; and (vii) provisions apply to successive events and transactions.
ARTICLE II
The Securities
SECTION 2.01. Form and Dating. The Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Security shall be dated the date of
its authentication.
The terms and provisions contained in the Securities annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
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
such Securities may then be listed, all as determined by the Officers executing
such Securities, as evidenced by their execution of such Securities.
SECTION 2.02. Execution and Authentication. Two Officers
shall sign the Securities for the Company by manual or facsimile signature.
The Company's seal shall be reproduced on the Securities and may be in
facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall be
valid nevertheless.
A Security shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
The Trustee shall authenticate and deliver Securities for
original issue in the aggregate principal amount of not more than $145,000,000
pursuant to a written order of
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the Company signed by two Officers. The order shall specify the amount of
Securities to be authenticated and the date upon which the original issue of
Securities is to be authenticated. The aggregate principal amount of
Securities outstanding at any time may not exceed $145,000,000 except as
provided in Sections 2.07 and 2.08.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. 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 an Agent to deal with the Company
or an Affiliate of the Company.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and integral multiples
thereof.
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain in the Borough of Manhattan, New York, New York, an office or agency
where Securities may be presented for registration of transfer or for exchange
(the "Registrar") and an office or agency where Securities may be presented for
payment (the "Paying Agent"), and the Company shall maintain in the Borough of
Manhattan, New York, New York, an office or agency where notices or demands to
or upon the Company in respect of the Securities and the Indenture may be
served. The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may appoint one or more co-registrars and
one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent and the term "Registrar" includes any additional
registrar. The Company may change any Paying Agent or Registrar without prior
notice to any Securityholder.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the terms
of the TIA. The agreement shall implement the provisions of this Indenture
that relate to such Agent. The Company shall give prompt written notice to the
Trustee of the name and address of any Agent who is not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any
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Affiliate of the Company may act as Paying Agent or Registrar.
The Company initially appoints the Trustee at the address
specified in Section 12.02 as Registrar and Paying Agent, and the Company
initially appoints the Trustee as agent for service of notices and demands.
SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to
the due date of principal of and interest on any Security, the Company shall
deposit with the Paying Agent money sufficient to pay such principal and
interest so becoming due. The Company shall require each Paying Agent other
than the Trustee to agree in writing that the Paying Agent shall hold in trust
for the benefit of Securityholders or the Trustee all money held by the Paying
Agent for the payment of principal of and interest on the Securities (whether
such money has been paid to it by the Company or any other obligor on the
Securities) and shall notify the Trustee of any failure by the Company (or any
other obligor on the Securities) in making any such payment. While any such
failure continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee and to account for any funds disbursed. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other than the Company)
shall have no further liability for the money so paid over to the Trustee. If
the Company acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Securityholders all money held by it as
Paying Agent.
SECTION 2.05. Securityholder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Securityholders. If the Trustee
is not the Registrar, the Company shall furnish to the Trustee on or before
each interest payment date for the Securities and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.06. Registration of Transfer and Exchange. The
Securities shall be issued in registered form and shall be transferable only
upon the surrender of a Security for registration of transfer. When Securities
are presented to the Registrar or a coregistrar with a request
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to register their transfer or to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall register the transfer or
make the exchange if its requirements for such transaction are met; provided
that a Security presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit registrations of
transfer and exchanges, the Company shall issue Securities, and the Trustee
shall authenticate Securities at the Registrar's request. No service charge
shall be made for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with registration, transfer or
exchange of Securities other than exchanges pursuant to Section 2.10, 3.06,
9.05 or 11.01(d) not involving any transfer.
The Registrar shall not be required to register the transfer
or exchange of (i) any Security selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part or (ii)
any Security for a period of 15 days before a selection of Securities to be
redeemed.
SECTION 2.07. Replacement Securities. If a mutilated
Security is surrendered to the Trustee or if the Holder of a Security claims
that the Security has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee, at the Company's request, shall authenticate a
replacement Security if the requirements of the Trustee and the Company are
met; provided that, if any such Security has been called for redemption in
accordance with the terms thereof, the Trustee may pay the Redemption Price
thereof on the Redemption Date without authenticating or replacing such
Security. The Trustee or the Company may, in either case, require the Holder
to provide an indemnity bond sufficient in the judgment of each of the Trustee
and the Company to protect the Company, the Trustee, any Agent or any
authenticating agent from any loss which any of them may suffer if a Security
is replaced or if the Redemption Price therefor is paid pursuant to this
Section. The Company may charge the Securityholder who has lost a Security for
its expenses in replacing a Security.
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Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
SECTION 2.08. Outstanding Securities. The Securities
outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation and
those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding and interest ceases to accrue unless the Trustee receives
proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If all principal of and interest on any of the Securities are
considered paid under Section 4.01, such Securities shall cease to be
outstanding and interest on them shall cease to accrue.
Except as provided in Section 2.09, a Security does not cease
to be outstanding because the Company or an Affiliate of the Company holds such
Security.
SECTION 2.09. Treasury Securities. In determining whether
the Holders of the required principal amount of Securities have concurred in
any direction, waiver or consent, Securities owned by the Company or any other
obligor, or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or such other
obligor shall be considered as though they are not outstanding, except that for
the purposes of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities which such Trustee
knows are so owned shall be so disregarded.
SECTION 2.10. Temporary Securities. Until definitive
Securities are ready for delivery, the Company may prepare and execute and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without
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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 Corporate Trust Office of the
Trustee, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like aggregate principal
amount of definitive Securities having the same date as such temporary
Securities. Until so exchanged such temporary securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities.
SECTION 2.11. Cancellation. The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and Paying
Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange, payment or repurchase. The Trustee shall
cancel all Securities surrendered for registration of transfer, exchange,
payment, repurchase, redemption, replacement or cancellation and shall destroy
canceled Securities unless the Company directs them to be returned to it. The
Company may not issue new Securities to replace Securities that it has paid or
that have been delivered to the Trustee for cancellation.
SECTION 2.12. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers in notice given pursuant to Section 3.03, 4.08 or 11.01
as a convenience to Holders; provided that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any such notice and that reliance may be
placed only on the other identification numbers printed on the Securities.
SECTION 2.13. Defaulted Interest. If the Company fails to
make a payment of interest on the Securities, it shall pay such interest, plus
interest payable on the defaulted interest (to the extent permitted by law), to
the persons who are Securityholders on a subsequent special record date, 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 of the proposed payment (which shall be at least 40 days
from the date of such notice), and at the same time the Company shall deposit
with the Trustee an
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amount of cash 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 cash when
deposited to be held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 or less than 10 days prior to the date of the proposed payment
and not less than 15 days after the receipt of the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, 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 his address as it appears in the 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 mailed as aforesaid,
such Defaulted Interest shall be paid to the persons in whose names the
Securities are registered as of the close of business on such Special Record
Date.
Notwithstanding the foregoing, no such payment of Defaulted
Interest shall affect the status of the failure to pay interest when due as an
Event of Default under Section 6.01.
SECTION 2.14. Person Deemed Owners. Prior to due presentment
for transfer, the Company, the Trustee, the authenticating agent, if any, and
any Agent may treat the Holder as the owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee, the authenticating agent, if any, nor any Agent
(including the Paying Agent, if any) shall be affected by notice to the
contrary.
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 5 of the
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Securities, it shall notify the Trustee of the redemption date and the
principal amount of Securities to be redeemed.
The Company shall give each notice provided for in this
Section and an Officers' Certificate at least 15 days before the Redemption
Date (unless a shorter period shall be satisfactory to the Trustee).
SECTION 3.02. Selection of Securities To Be Redeemed. If
fewer than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed from the outstanding Securities not previously called
for redemption pro rata or by lot in accordance with a method the Trustee
considers fair and appropriate. The Trustee may select for redemption portions
of the principal amount of Securities that have denominations larger than
$1,000.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Security
selected for partial redemption, the principal amount thereof to be redeemed.
Securities and portions of them selected shall be in amounts of $1,000 or whole
multiples of $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption.
SECTION 3.03. Notice of Redemption. At least 15 days but not
more than 60 days before the Redemption Date, the Company shall mail a notice
of redemption by first-class mail to each Holder whose Securities are to be
redeemed at the address of such Holder appearing in the register.
The notice shall identify the Securities to be redeemed and
shall state: (1) the Redemption Date; (2) the Redemption Price; (3) if any
Security is being redeemed in part, the portion of the principal amount of such
Security to be redeemed and that, after the Redemption Date, upon surrender of
such Security, a new Security or Securities in principal amount equal to the
unredeemed portion shall be issued; (4) the name and address of the Paying
Agent; (5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest (if any) to
the Redemption Date; (6) that, unless the Company defaults in making the
redemption payment, interest on Securities called for redemption ceases to
accrue on and after the Redemption Date and the
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only remaining right of the Holders is to receive payment of the Redemption
Price plus accrued interest (if any) to the Redemption Date upon surrender of
the Securities to the Paying Agent; (7) the Security's CUSIP number (subject to
the proviso in Section 2.12 hereof) and (8) the aggregate principal amount of
Securities being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense. Concurrently with the
giving of any such notice by the Company to the Securityholders, the Company
shall deliver to the Trustee an Officers' Certificate stating that such notice
has been given. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly 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 shall not affect the
validity of the proceeding for the redemption of any other Security.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable
on the Redemption Date at the Redemption Price plus accrued interest to the
Redemption Date. Upon surrender to the Paying Agent, such Securities shall be
paid at the Redemption Price plus accrued interest (if any) to the Redemption
Date.
SECTION 3.05. Deposit of Redemption Price. Prior to the
Redemption Date, the Company shall deposit with the Trustee or with the Paying
Agent (or if the Company is acting as its own Paying Agent, the Company shall
segregate and hold in trust) money sufficient to pay the Redemption Price of
and accrued interest to the Redemption Date on all Securities to be redeemed on
that date other than Securities or portions thereof called for redemption on
that date which have been delivered by the Company to the Trustee for
cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of
a Security that is redeemed in part, the Company shall issue and the Trustee
shall authenticate for the Holder at the expense of the Company, a new Security
equal in principal amount to the unredeemed portion of the Security
surrendered.
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ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities. The Company shall pay
the principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if the Trustee or Paying Agent (other than
the Company or an Affiliate of the Company) holds on that date money designated
for and sufficient to pay all principal and interest then due if payment
thereof is not prohibited by Article X.
The Company shall pay interest on overdue principal at the
rate then borne by the Securities; it shall pay interest on overdue
installments of interest at the same rate to the extent legally permitted.
SECTION 4.02. Limitation on Restricted Payments. The Company
shall not, and shall not permit any subsidiary of the Company to, directly or
indirectly, make any Restricted Payment unless (a) no Default or Event of
Default shall have occurred and be continuing at the time or shall occur as a
consequence of such Restricted Payment and (b) after giving effect to such
Restricted Payment, the aggregate amount expended for all Restricted Payments
subsequent to December 31, 1993, (the amount so expended, if other than in
cash, to be determined by the Board of Directors, whose reasonable
determination shall be conclusive and evidenced by a Board Resolution), shall
not exceed the sum of (x) 50% of Consolidated Net Income of the Company (or in
the case such Consolidated Net Income shall be a deficit, minus 100% of such
deficit) during the period (treated as one accounting period) subsequent to
December 31, 1993 and ending on the last day of the fiscal quarter immediately
preceding such Restricted Payment and (y) the aggregate net proceeds, including
cash and the fair market value of property other than cash (as determined in
good faith by the Board of Directors of the Company and evidenced by a Board
Resolution), received by the Company during such period from any person other
than a subsidiary of the Company, as a result of the issuance of capital stock
of the Company (other than any Disqualified Stock) or warrants, rights or
options to purchase or acquire such capital stock including such capital stock
issued upon conversion or exchange of Indebtedness or upon exercise of warrants
or options and any contributions to the capital of
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the Company received by the Company from any such person less the amount of
such net proceeds actually applied as permitted by clause (ii) of the next
paragraph or by the proviso to the definition of "Restricted Debt Prepayment"
in Article I of this Indenture; provided, that at the time of such Restricted
Payment and after giving effect thereto, the Company or any subsidiary of the
Company shall be able to incur an additional $1.00 of Indebtedness pursuant to
clauses (a) and (b) of Section 4.03 of this Indenture. For purposes of any
calculation pursuant to the preceding sentence which is required to be made
within 60 days after the declaration of a dividend by the Company, such
dividend shall be deemed to be paid at the date of declaration.
The provisions of this Section 4.02 shall not be violated by
reason of (i) the payment of any dividend within 60 days after the date of
declaration thereof if, at such date of declaration such payment complied with
the provisions hereof (ii) the purchase, redemption, acquisition or retirement
of any shares of the Company's capital stock in exchange for, or out of the
proceeds of the substantially concurrent sale (other than to a subsidiary of
the Company) of, other shares of capital stock (other than Disqualified Stock)
of the Company or rights, warrants or options to purchase or acquire such
capital stock of the Company or (iii) payments by the Company (A) for the
mandatory repurchase of shares of Common Stock of the Company (or scheduled
payments of principal of or interest on notes issued to finance the repurchase
of such shares) from Management Investors under the Stockholders Agreement or
(B) to satisfy any other Obligations under the terms of the Stockholders
Agreement; provided, that no Default or Event of Default shall have occurred
and be continuing at the time, or shall occur as a result, of such Restricted
Payment. For purposes of determining the aggregate amount of Restricted
Payments in accordance with clause (b) of the first paragraph of this Section
4.02, all amounts expended pursuant to clause (i) or (iii) (except to the
extent deemed to have been paid pursuant to the last sentence of the
immediately preceding paragraph) of this paragraph shall be included.
For the purpose of this Section 4.02 and the proviso to the
definition of "Restricted Debt Prepayment" in Article I of this Indenture, the
net proceeds from the issuance of shares of capital stock of the Company upon
the conversion of debt securities shall be deemed to be an amount equal to the
net book value of such debt securities
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(plus the additional amount required to be paid upon such conversion, if any),
less any cash payment on account of fractional shares; the "net book value" of
a security shall be the amount received by the Company on the issuance of such
security, as adjusted on the books of the Company to the date of conversion.
The foregoing shall not be interpreted to limit the authority of the Board of
Directors to determine the value of other securities of the Company or of any
subsidiary of the Company or other property received as net proceeds; provided
that the value of the other property shall not exceed the net book value of
such property.
Prior to making any Restricted Payment under this Section
4.02, the Company shall deliver to the Trustee an Officers' Certificate setting
forth the computation by which the amount available for Restricted Payments was
determined.
SECTION 4.03. Limitation on Indebtedness. Except for
Permitted Indebtedness and Refinancing Indebtedness, the Company shall not, and
shall not permit any subsidiary of the Company to, directly or indirectly,
create, incur, issue, assume, guarantee or otherwise become liable for,
contingently or otherwise, extend the maturity or become responsible for the
payment of (collectively, an "incurrence"), any Obligations in respect of any
Indebtedness including Acquired Indebtedness unless (a) no Default or Event of
Default shall have occurred and be continuing at the time or as a consequence
of the incurrence of such Indebtedness and (b) after giving effect to the
incurrence of such Indebtedness and the receipt and application of the proceeds
thereof on a pro forma basis, the Consolidated Interest Expense Coverage Ratio
of the Company is greater than 2 to 1.
For purposes of all covenants contained in this Section 4.03,
an incurrence shall be deemed to occur when any person becomes a subsidiary of
the Company by merger or consolidation, acquisition or otherwise.
Prior to any incurrence of Indebtedness pursuant to this
Section, the Company shall deliver to the Trustee and the Securityholders an
Officers' Certificate setting forth the calculations by which such incurrence
was determined to be permitted and stating that such Indebtedness does not
violate the provisions of Section 4.03.
SECTION 4.04. Limitation on Payment Restrictions Affecting
Subsidiaries. The Company shall not, and shall
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not permit any subsidiary of the Company to, create or otherwise cause or
suffer to exist or become effective any consensual restriction which by its
terms expressly restricts any such subsidiary from (i) paying dividends or
making any other distributions on such subsidiary's capital stock or paying any
Indebtedness owed to the Company or any subsidiary of the Company, (ii) making
any loans or advances to the Company or any subsidiary of the Company or (iii)
transferring any of its property or assets to the Company or any subsidiary of
the Company, except (a) any restrictions existing under agreements in effect at
the issuance of the Securities including Section 4.02, (b) any restrictions
under any agreement evidencing any Acquired Indebtedness of a subsidiary of the
Company incurred pursuant to Section 4.03; provided that such restrictions
shall not restrict or encumber any assets of the Company or its subsidiaries
other than such subsidiary or (c) any restrictions existing under any agreement
which refinances any Indebtedness in accordance with paragraph (xiv) of the
definition of Permitted Indebtedness; provided that the terms and conditions of
any such agreement are not materially less favorable to such subsidiary than
those under the agreement creating or evidencing the Indebtedness being
refinanced.
SECTION 4.05. Limitation on Creation of Liens. The Company
shall not, and shall not permit any subsidiary of the Company to, create,
incur, assume or suffer to exist any Liens upon any of their respective assets
unless the Securities are secured by such assets on an equal and ratable basis
with the obligation so secured until such time as such obligation is no longer
secured by a Lien, provided that if the obligation secured by such Lien is
subordinated to the Securities, the Lien securing such obligation shall be
subordinate and junior to the Lien securing the Securities with the same
relative priority as such subordinated obligation shall have with respect to
the Securities, except for (i) Liens securing Senior Indebtedness that would be
permitted to be incurred in compliance with clauses (a) and (b) of Section 4.03
if such Indebtedness were incurred on the date such Lien is granted; (ii) Liens
with respect to Acquired Indebtedness, provided that such Liens do not extend
to or cover any property or assets of the Company or any subsidiary of the
Company other than the property or assets acquired, and provided further that
such Liens were not incurred in connection with, or in contemplation of, the
transaction or transactions giving rise to such Acquired Indebtedness; (iii)
Liens securing
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Indebtedness which is incurred to refinance secured Indebtedness and which is
permitted to be incurred pursuant to Section 4.03, provided that such Liens do
not extend to or cover any property or assets of the Company or any subsidiary
of the Company other than the property or assets securing the Indebtedness
being refinanced; and (iv) Permitted Liens.
SECTION 4.06. No Senior Subordinated Indebtedness. The
Company shall not issue, incur, create, assume, guarantee or otherwise become
liable for any Indebtedness which is subordinate or junior in right of payment
to any Indebtedness of the Company, including, without limitation, Indebtedness
that refinances the Senior Subordinated Notes, unless such Indebtedness is pari
passu with or subordinate in right of payment to the Securities.
SECTION 4.07. Transactions with Shareholders and Affiliates.
The Company shall not, and shall not permit any subsidiary of the Company to,
directly or indirectly, enter into or suffer to exist any transaction (an
"Affiliate Transaction") (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder of more than 10% of any class of equity securities of the Company or
with any Affiliate of the Company or of any such holder (other than a wholly
owned subsidiary of the Company), on terms that are less favorable to the
Company or such subsidiary, as the case may be, than would be available in a
comparable transaction with an unrelated person. In addition, neither the
Company nor any subsidiary of the Company shall enter into any Affiliate
Transaction or series of related Affiliate Transactions involving or having a
value of (a) more than $2,500,000, unless a majority of Disinterested Directors
(or, if there are no Disinterested Directors, a majority of the Board of
Directors) of the Company or such subsidiary, as the case may be, determines in
good faith pursuant to a Board Resolution that such Affiliate Transaction or
series of related Affiliate Transactions is fair to the Company or such
subsidiary, as the case may be, or (b) more than $10,000,000, unless (i) a
majority of Disinterested Directors (or, if there are no Disinterested
Directors, a majority of the Board of Directors) of the Company or such
subsidiary, as the case may be, make the determination referred to in clause
(a) above and (ii) the Company or such subsidiary, as the case may be, has
received an opinion from an Independent Financial Advisor to the effect that
such Affiliate Transaction or series of related Affiliate
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Transactions are fair to the Company or such subsidiary, as the case may be,
from a financial point of view.
The foregoing provisions shall not apply to payments of
investment banking and financial advisory or consulting fees and other fees to
Lehman Brothers Inc. or any of their subsidiaries or Affiliates in connection
with the sale of the Securities (or any refunding, refinancing or conversion
thereof) and other customary investment banking and financial advisory or
consulting fees.
SECTION 4.08. Sales of Assets. Subject to the provisions of
Section 5.01, the Company shall not, and shall not permit any subsidiary to,
make any Asset Sale unless (i) the Company (or such subsidiary, as the case may
be) receives consideration at the time of such sale at least equal to the fair
market value of the shares or assets included in such Asset Sale (as determined
in good faith by the Board of Directors, including valuation of all noncash
consideration) or (ii)(x) either (A) the Net Cash Proceeds are reinvested
within 12 months (or, pursuant to a determination of the Board of Directors,
held pending reinvestment) in replacement assets or assets used in the Seating
Business or used to purchase all of the issued and outstanding capital stock of
a person engaged in such business or used to fund research and development
costs or (B) if the Net Cash Proceeds are not applied or are not required to be
applied as set forth in clause (ii)(x)(A) or if after applying such Net Cash
Proceeds as set forth in clause (ii)(x)(A) there remain Net Cash Proceeds, such
Net Cash Proceeds are applied within 12 months of the original receipt thereof
to the permanent prepayment, repayment, retirement or purchase of Senior
Indebtedness or Indebtedness of a subsidiary, (y) if and to the extent that the
gross proceeds from such Asset Sale (after giving effect to the application of
clause (ii)(x)(A) and (B), when added to the gross proceeds from all prior
Asset Sales (not applied as set forth in clause (ii)(x)(A) or (B)) exceeds
$15,000,000, such proceeds are applied pursuant to a Repurchase Offer (defined
below) to repurchase the Securities (on a pro rata basis if the amount
available for such purchase is less than the outstanding principal amount of
the Securities) at a purchase price equal to 100% of the principal amount
thereof plus accrued interest to the date of prepayment and (z) if the
aggregate principal amount of all Securities tendered pursuant to a Repurchase
Offer is less than the Repurchase Offer Amount (defined below), such excess
amount is applied for general corporate purposes;
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provided that when any non-cash consideration is converted into cash, such cash
shall then constitute Net Cash Proceeds and shall be subject to clause (ii) of
this sentence.
To repurchase the Securities, the Company shall offer to
purchase the Securities (the "Repurchase Offer"), on a specified date (the
"Repurchase Date"), pursuant to the provisions hereof at a price equal to 100%
of their principal amount, plus interest accrued to the Repurchase Date (the
"Repurchase Price"). If the Repurchase Date is on or after a record date and
on or before the related interest payment date, then any accrued interest shall
be paid to the person in whose name the Security is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Securities pursuant to the Repurchase Offer. Net Cash
Proceeds allocable to the purchase of Securities will be accumulated and the
Company shall be required to make a Repurchase Offer to the holders of
Securities only if an aggregate amount (the "Repurchase Offer Amount") of at
least $15,000,000 of such Net Cash Proceeds has been accumulated as of the
first day of any fiscal quarter which amount has neither been paid nor set
aside for the purchase of the Securities tendered in a prior Repurchase Offer
or reallocated for general corporate purposes as herein provided.
If the Company elects to commence a Repurchase Offer, or
within 10 Business Days after the first day of each fiscal quarter in which the
Company is obligated to make a Repurchase Offer, the Company shall deliver to
the Trustee and send, by first class mail to each Holder at his last address as
it appears upon the list of Securityholders maintained by the Registrar
pursuant to Section 2.03 hereof, a written notice stating that the Holder may
elect to have such Holder's Securities purchased by the Company either in whole
or in part in integral multiples of $1,000 of principal amount, plus accrued
interest thereon to the Repurchase Date. The notice shall specify a Repurchase
Date which is at least 20 Business Days after the date of such notice and shall
contain all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Repurchase Offer, together with the
information contained in the second following paragraph of this Section 4.08.
Not later than the date upon which written notice of a Repurchase Offer is
delivered to the Trustee, the Company shall deliver to the Trustee an Officers'
Certificate as to (x) the Repurchase Offer Amount and the amount of accrued
interest to the Repurchase Date, (y) the allocation of the
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Net Cash Proceeds from the Asset Sale or Asset Sales pursuant to which such
Repurchase Offer is being made and (z) the compliance of such allocation with
the provisions of this Section 4.08.
If the Company designates a depositary or a Paying Agent to
receive tendered Securities on its behalf in the Repurchase Offer, the Company
shall deposit with such depositary or Paying Agent, no later than the
Repurchase Date, funds sufficient to pay for the Securities to be purchased in
the Repurchase Offer. The depositary, the Paying Agent or the Company, as the
case may be, shall, within five Business Days following the Repurchase Date,
mail or deliver payment to each tendering Securityholder by check or draft in
an amount equal to the principal amount, plus accrued interest thereon to the
Repurchase Date, of the Securities tendered by such Securityholder and accepted
by the Company for purchase. Upon the expiration of the period for which the
Repurchase Offer remains open, the depositary, the Paying Agent or the Company,
as the case may be, shall deliver to the Trustee the Securities or portions
thereof which have been properly tendered to and accepted for purchase by the
Company. In addition, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Securities were accepted by the Company pursuant
to and in accordance with the terms of this Section 4.08. The Trustee shall
deliver to Holders whose Securities have been purchased only in part new
Securities equal in principal amount to the portion not purchased of the
Securities surrendered.
Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate letter of transmittal
duly completed, which shall include the "Option of Holder to Elect Purchase" on
the reverse of the Security, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice prior to the
expiration of the period for which the Repurchase Offer remains open. Holders
shall be entitled to withdraw their election to have their Securities purchased
if the Company, the depositary or Paying Agent, as the case may be, receives,
not later than two Business Days prior to the Repurchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Security which was delivered for purchase by the
Holder and a statement that such Holder is withdrawing his election to have
such Security purchased. If the aggregate principal
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amount of Securities tendered by Holders pursuant to the Repurchase Offer
exceeds the Repurchase Offer Amount, the Company shall select the Securities to
be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of $1,000
or integral multiples thereof shall be purchased). Holders whose Securities
are purchased only in part shall be issued new Securities equal in principal
amount to the unpurchased portion of the Securities surrendered.
Whenever Net Cash Proceeds received by the Company and
allocated for the repayment of the Securities exceeds $15,000,000, such Net
Cash Proceeds shall be set aside by the Company in a separate account pending
disbursement or reallocation pursuant to this Section 4.08. Such Net Cash
Proceeds may be invested in Cash Equivalents; provided that the maturity date
of such Cash Equivalents shall not be later than the Repurchase Date. The
Company shall be entitled to any interest or dividends accrued, earned or paid
on such Cash Equivalents.
SECTION 4.09. Limitation on Issuance of Preferred Stock. The
Company will not permit any of its subsidiaries to issue any preferred or
preference stock (except to the Company or a wholly owned subsidiary of the
Company) or permit any person (other than the Company or any wholly owned
subsidiary of the Company) to hold any such preferred or preference stock
unless the Company would be entitled to create, incur or assume Indebtedness
pursuant to Section 4.03 in the aggregate principal amount equal to the
aggregate liquidation value of the preferred or preference stock to be issued.
SECTION 4.10. Corporate Existence. Subject to Article V, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence and that of each subsidiary of
the Company and the rights (charter and statutory), licenses and corporate
franchises of the Company and its subsidiaries; provided that the Company shall
not be required to preserve any such existence (except of the Company), right,
license or franchise if the Board of Directors of the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company or such subsidiary and that the loss thereof is not
disadvantageous in any material respect to the Holders.
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SECTION 4.11. SEC Reports; Reports to Securityholders. (a)
The Company shall supply without cost to each Holder and shall file with the
Trustee within 15 days after the Company files them with the SEC, 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 SEC may by rules and
regulations prescribe), if any, which the Company is required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also
shall comply with the other provisions of TIA Section 314(a).
(b) So long as any of the Securities remain outstanding, if
the Company is not required to file reports with the SEC, the Company shall
prepare, for the first three quarters of each fiscal year, quarterly reports
containing: (i) unaudited consolidated financial statements of the Company and
its subsidiaries including, but not limited to, a balance sheet, a statement of
operations, a statement of changes in financial position and all appropriate
notes and (ii) management's discussion and analysis of the quarterly results.
The Company shall also prepare, on an annual basis, complete audited
consolidated financial statements including, but not limited to, the terms
referred to in (i) above and a consolidated statement of changes in
stockholders' equity. Such annual reports will also include, to the extent
such information would be required to be filed with the SEC pursuant to Section
13 or 15(d) of the Exchange Act, (1) management's discussion and analysis of
the annual results, (2) a description of the business and properties of the
Company and its subsidiaries focusing on material trends, events and changes
during the year, (3) a description of all transactions with the Company and its
subsidiaries by executive officers, directors, or holders of more than 10% of
any class of equity securities of the Company or any of its subsidiaries, (4) a
description of material litigation or claims against the Company or its
subsidiaries, and (5) a description of any material loss or interference with
the business of the Company and its subsidiaries from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree. All financial statements
herein described shall be prepared in accordance with GAAP consistently applied
(except as otherwise noted therein) and except for changes with which the
Company's independent public accountants concur and except that quarterly
statements may be subject to year-end adjustments and the absence or
incompleteness of footnotes thereto. The Company shall cause a copy of such
reports to
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be mailed to the Trustee within 60 days after the close of each of the first
three quarters of each fiscal year and within 120 days after the close of each
fiscal year, and promptly following receipt thereof the Trustee shall cause
such reports to be mailed to each of the Holders of the Securities at such
Holder's last address appearing on the register of the Securities.
SECTION 4.12. Compliance Certificates. (a) The Company
shall deliver to the Trustee, within 60 days after the end of each of its first
three fiscal quarters, an Officers' Certificate stating whether or not the
signers know of any Default or Event of Default that occurred during such
fiscal quarter. If they do know of such a Default or Event of Default, the
certificate shall describe any such Default or Event of Default and its status.
The first certificate to be delivered pursuant to this Section 4.12 shall be
for the first fiscal quarter beginning after the execution of this Indenture.
(b) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, an Officers' Certificate (one
signatory to which shall be its principal executive officer, principal
financial officer or principal accounting officer) stating that a review of the
activities of the Company and its subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed, fulfilled and
complied with its obligations, covenants and conditions under this Indenture,
and further stating, as to each such Officer signing such certificate, that to
the best of such Officer's knowledge the Company has kept, observed, performed,
fulfilled and complied with each and every covenant and condition contained in
this Indenture and is not in default in performance or observance of any of the
terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which
he may have knowledge) and that to the best of such Officer's knowledge no
event has occurred and is continuing which is, or after notice or lapse of time
or both would become, an Event of Default, or if such an event has occurred and
is continuing, specifying each such event known to such Officers and the nature
and status thereof.
(c) The Company shall deliver to the Trustee within 120 days
after the end of each fiscal year written
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statements by the Company's independent certified public accountants stating as
to the Company (A) that their audit examination has included a review of the
terms of this Indenture and the Securities as they relate to accounting
matters, and (B) whether, in connection with their audit examination, any
Default or Event of Default has come to their attention and, if such a Default
or Event of Default has come to their attention, specifying the nature and
period of existence thereof; provided that, without any restriction as to the
scope of such audit examinations, such independent certified public accountants
shall not be liable by reason of any failure to obtain knowledge of any such
Default or Event of Default that would not be disclosed in the course of any
audit examination conducted in accordance with generally accepted auditing
standards.
SECTION 4.13. Notice of Defaults. Upon the occurrence of any
Default or Event of Default under this Indenture, the Company, promptly after
it becomes aware thereof, shall deliver to the Trustee an Officers' Certificate
specifying such Default or Event of Default and what action the Company or the
relevant subsidiary of the Company is taking or proposes to take with respect
thereto.
SECTION 4.14. Payment of Taxes and Other Claims. The Company
shall pay or discharge or cause to be paid or discharged, before any penalty
accrues thereon, (i) all material taxes, assessments and governmental charges
levied or imposed upon the Company or any subsidiary of the Company or upon the
income, profits or property of the Company or any subsidiary of the Company and
(ii) all material lawful claims for labor, materials and supplies which, if
unpaid, would by law become a Lien upon the property of the Company or any
subsidiary of the Company; provided that none of the Company or any subsidiary
of the Company shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claims the amount, applicability
or validity of which is being contested in good faith by appropriate
proceedings and for which adequate provision has been made or where the failure
to affect such payment or discharge is not adverse in any material respect to
the Holders.
SECTION 4.15. Maintenance of Properties and Insurance. The
Company shall cause all material properties owned by or leased to it or any
subsidiary of the Company and used or useful in the conduct of its business or
the business of such subsidiary to be maintained and kept in
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normal condition, repair and working order and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided
that nothing in this Section 4.15 shall prevent the Company or any subsidiary
of the Company from discontinuing the use, operation or maintenance of any such
properties, or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Board of Directors of the Company or the subsidiary
concerned, or of any officer (or other agent employed by the Company or any
subsidiary of the Company) of the Company or such subsidiary having managerial
responsibility for any such property, desirable in the conduct of the business
of the Company or any subsidiary of the Company and if such discontinuance or
disposal is not adverse in any material respect to the Securityholders.
The Company shall provide or cause to be provided, for itself
and any subsidiaries of the Company, insurance (including appropriate self
insurance) against loss or damage of the kinds customary for the corporations
similarly situated and owning like properties, including, but not limited to,
public liability insurance, with reputable insurers or with the government of
the United States of America or an agency or instrumentality thereof, in such
amounts with such deductibles and by such methods as shall be customary for
corporations similarly situated in the industry.
ARTICLE V
Merger, etc.
SECTION 5.01. When Company May Merge, etc. The Company shall
not consolidate or merge with or into, or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its assets to, any person
unless: (1) the person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer, lease
conveyance or disposition shall have been made, is a corporation organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia; (2) the corporation formed by or surviving any such
consolidation or
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merger (if other than the Company), or to which such sale, assignment,
transfer, lease, conveyance or disposition shall have been made, assumes by
supplemental indenture in form satisfactory to the Trustee all the obligations
of the Company under the Securities and this Indenture; (3) immediately after
such transaction, and giving effect thereto, no Default or Event of Default
shall have occurred and be continuing; (4) the Company or any corporation
formed by or surviving any such consolidation or merger, or to which such sale,
assignment, transfer, lease, conveyance or disposition shall have been made,
shall have Consolidated Adjusted Net Worth (immediately after the transaction
and giving effect thereto, excluding any write-ups of assets resulting from
such consolidation or merger) at least equal to the Consolidated Adjusted Net
Worth of the Company immediately preceding the transaction; (5) immediately
after such transaction and giving effect thereto, the Company or any
corporation formed by or surviving any such consolidation or merger, or to
which such sale, assignment, transfer, lease, conveyance or disposition shall
have been made, shall be able to incur an additional $1.00 of Indebtedness
pursuant to clause (b) of Section 4.03 of this Indenture; and (6) the Company
has delivered to the Trustee (A) an Officers' Certificate (attaching the
calculation to demonstrate compliance with clause (4) and (5)) and an Opinion
of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture comply with this Section 5.01 and that all conditions
precedent herein provided for relating to such transaction have been complied
with, and (B) a certificate from the Company's independent certified public
accountants, stating that the Company has made the calculations required by
clauses (4) and (5) above in accordance with the terms of the Indenture.
SECTION 5.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance
or other disposition of all or substantially all the assets of the Company in
accordance with Section 5.01, the successor corporation formed by such
consolidation or into which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein. In the event of any such
sale or conveyance, but not any such lease, the Company or any successor
corporation which thereafter shall have become such in the manner described in
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this Article V shall be discharged from all obligations and covenants under
this Indenture and the Securities and may be dissolved and liquidated.
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default"
occurs if:
(i) the Company defaults in the payment of interest on any
Security when it becomes due and payable and such default continues
for a period of 30 days, whether or not such payment shall be
prohibited by the provisions of Article X hereof;
(ii) the Company defaults in the payment of the principal of
any Security when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise, whether or not such payment
shall be prohibited by the provisions of Article X hereof;
(iii) the Company fails to comply with any of its other
agreements or covenants in, or provisions of, the Securities or this
Indenture and the Default continues for the period and after the
notice specified below;
(iv) any Indebtedness of the Company or any Significant
Subsidiary of the Company for borrowed money (or the payment of which
is guaranteed by the Company or one of its subsidiaries) having an
outstanding principal amount of $10,000,000 or more in the aggregate,
whether such Indebtedness now exists or shall hereafter be created, is
declared to be due and payable prior to its stated maturity or the
Company or any Significant Subsidiary fails to pay the final scheduled
principal installment in an amount of at least $10,000,000 in respect
of any such Indebtedness on the stated maturity date thereof (after
giving effect to any extension of such maturity date by the holder of
such Indebtedness and after the expiration of any grace period in
respect of such final scheduled principal installment contained in the
instrument under which such Indebtedness is outstanding); provided
that it shall not be an Event of Default under this clause (iv) if
such Indebtedness which has been declared due and payable prior to its
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stated maturity is Indebtedness of a Foreign Subsidiary the
payment of which is guaranteed by the Letters of Credit;
(v) a final judgment or final judgments for the payment of
money are entered by a court of competent jurisdiction against the
Company or any subsidiary of the Company and such judgment remains
undischarged and unbonded for a period (during which execution shall
not be effectively stayed) of 60 days after judgment is entered;
provided that the aggregate of all such judgments exceeds (to the
extent not paid or covered by insurance or by self insurance to the
extent that reserves have been established therefore in accordance
with GAAP) $10,000,000;
(vi) the Company or any Significant Subsidiary of the Company,
pursuant to or within the meaning of any Bankruptcy Law: (A)
commences a voluntary case or proceeding, (B) consents to the entry of
an order for relief against it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (D) makes a general assignment
for the benefit of its creditors; or
(vii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (A) is for relief against the
Company or any Significant Subsidiary of the Company in an involuntary
case or proceeding (B) appoints a Custodian of the Company or any
Significant Subsidiary of the Company or for all or substantially all
of its property, or (C) orders the liquidation of the Company or any
Significant Subsidiary of the Company;
and in case of (vii) the order or decree remains unstayed and in effect for 60
days.
The term "Bankruptcy Law" means Title 11 of the U.S. Code or
any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law.
A Default under clause (iii) of this Section 6.01 is not an
Event of Default until the Trustee notifies the Company in writing, or the
Holders of at least 25% in
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principal amount of the Securities then outstanding notify the Company and the
Trustee, in writing, of the Default, and the Company does not cure the Default
within 30 days after receipt of the notice; provided that a Default by the
Company with respect to the provisions of either Article V or XI under this
Indenture shall constitute an Event of Default immediately upon such
notification and without passage of time. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of Default".
Such notice to the Company shall be given by the Trustee if so requested in
writing by the Holders of at least 25% of the principal amount of the
Securities then outstanding.
Except for a Default under Section 6.01(i) or (ii) of this
Indenture, the Trustee shall not be deemed to know of a Default unless a Trust
Officer has actual knowledge of such Default or receives written notice of such
Default with specific reference to such Default.
SECTION 6.02. Acceleration. Subject to Article X, if an
Event of Default (other than an Event of Default specified in clause (vi) or
(vii) of Section 6.01 with respect to the Company) occurs and is continuing,
the Trustee or the Holders of at least 25% of the principal amount of the
Securities then outstanding, by written notice to the Company (and to the
Trustee, if given by the Holders) (and the Agent Bank, so long as the
Indebtedness under the Credit Agreement is outstanding) (and to the Senior
Subordinated Notes Trustee, so long as the Indebtedness under the Senior
Subordinated Notes is outstanding), may declare due and payable 100% of the
principal amount of the Securities plus any accrued interest to the date of
payment. Upon a declaration of acceleration, such principal and accrued
interest to the date of such acceleration, shall be due and payable upon the
first to occur of (i) an acceleration under the Credit Agreement), or (ii) five
Business Days after notice of such declaration is given to the Company (and to
the Trustee, if given by the Holders) (and the Agent Bank, so long as the
Indebtedness under the Credit Agreement is outstanding) (and to the Senior
Subordinated Notes Trustee, so long as the Indebtedness under the Senior
Subordinated Notes is outstanding); provided, however, that, if the Event of
Default giving rise to such acceleration is cured before the earlier to occur
of (i) or (ii), such notice of acceleration and its consequences shall be
deemed rescinded and annulled. In the event of a declaration of acceleration
under this Indenture
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because an Event of Default set forth in Section 6.01(iv) has occurred and is
continuing, such declaration of acceleration shall be automatically annulled if
the holders of the Indebtedness which is the subject of such Event of Default
have rescinded their declaration of acceleration in respect of such
Indebtedness within 90 days thereof or all amounts payable in respect of such
Indebtedness have been paid and such Indebtedness has been discharged during
such 90-day period and if (i) the annulment of such acceleration would not
conflict with any judgment or decree of a court of competent jurisdiction, (ii)
all existing Events of Default, except nonpayment of principal or interest that
has been due solely because of the acceleration, have been cured or waived, and
(iii) the Company has delivered an Officers' Certificate to the Trustee to the
effect of clauses (i) and (ii) of this sentence. If an Event of Default
specified in clause (vi) or (vii) of Section 6.01 with respect to the Company
occurs, 100% of the principal amount of the Securities plus any accrued
interest shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority of the outstanding principal amount of the Securities by written
notice to the Trustee may rescind an acceleration and its consequences if (i)
all existing Events of Default, other than the nonpayment of principal of or
interest on the Securities which have become due solely because of the
acceleration, have been cured or waived and (ii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy by proceeding at
law or in equity to collect the payment of principal of or interest on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon the Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All remedies
are cumulative to the extent permitted by law.
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SECTION 6.04. Waiver of Past Defaults. Subject to Sections
6.02, 6.07 and 9.02, the Holders of at least a majority in principal amount of
the Securities then outstanding by notice to the Trustee may waive an existing
Default or Event of Default and its consequences, except a Default in the
nonpayment of the principal of or interest on any Security as specified in
clauses (i) or (ii) of Section 6.01. When a Default or Event of Default is
waived, it is cured and ceases.
SECTION 6.05. Control by Majority. The Holders of at least a
majority in principal amount of the Securities then outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of other Securityholders or that may involve the Trustee in personal liability.
SECTION 6.06. Limitation on Suits. A Securityholder may not
pursue a remedy with respect to this Indenture, the Securities unless: (i) the
Holder gives to the Trustee written notice of a continuing Event of Default;
(ii) the Holders of at least 25% in principal amount of the Securities then
outstanding make a written request to the Trustee to pursue the remedy; (iii)
such Holder or Holders offer to the Trustee indemnity satisfactory to the
Trustee against any loss, liability, cost or expense; (iv) the Trustee does not
comply with the request within 60 days after receipt of the request and the
offer of indemnity; and (v) during such 60-day period the Holders of at least a
majority in principal amount of the Securities then outstanding do not give the
Trustee a direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of principal of or interest on the Security on
or after the respective due dates expressed or provided for in the Security,
subject to the provisions of Article X, or to bring suit for the enforcement of
any such payment on or
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after such respective dates, shall not be impaired or affected without the
consent of the Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(i) or (ii) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express
trust against the Company or any other obligor on the Securities for the whole
amount of principal and accrued interest remaining unpaid on the Securities.
The Company or any other obligor on the Securities shall pay interest on
overdue principal (including interest accruing on or after filing of any
petition in bankruptcy or reorganization relating to the Company or any other
obligor on the Securities, whether or not a claim for post-filing interest is
allowed in such proceeding), and the Company or any other obligor on the
Securities shall pay interest on overdue installments of interest, to the
extent permitted by law (including interest accruing on or after the filing of
any petition in bankruptcy or reorganization relating to the Company or any
other obligor on the Securities, whether or not a claim for post-filing
interest is allowed in such proceeding), in each case at the rate then borne by
the Securities, and such further amount as shall be sufficient to cover the
costs and expense of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same, and any
custodian in any such judicial proceedings is hereby authorized by each
Securityholder 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
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment
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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 Securityholder
in any such proceeding.
Any term or provision of this Section 6.09 to the contrary
notwithstanding, if any judicial proceeding referred to above is commenced by
or against the Company, and if the Trustee does not file a proper claim or
proof of claim in the form required in such judicial proceedings prior to 30
days before the expiration of time to file such claims or proofs, unless such
claim is either deemed filed or need not be filed in order for such claim to be
allowed under applicable law, rules or regulations, then so long as any Senior
Indebtedness remains outstanding, (i) the Agent Bank or a Representative, on
behalf of the holders and owners of the Senior Indebtedness, as their interests
may appear, is hereby authorized and empowered (in its own name or in the name
of the Trustee or any Securityholder or otherwise), but shall have no
obligation, to demand, sue for, collect and receive every payment or
distribution received in respect of any such proceeding and give acquittance
therefor and to file claims and proofs of claim, as their interests may appear,
and (ii) to the extent permitted by applicable laws, rules or regulations, the
Trustee shall duly and promptly take, on behalf of holders of the Senior
Indebtedness, as their interests may appear, such action as the Agent Bank or
such Representative may request (a) to collect all amounts payable by the
Company in respect of the Securities and to file appropriate claims or proofs
of claim in respect of such Securities, (b) to execute and deliver to the Agent
Bank or such Representative such assignments or other instruments as it may
request (other than an instrument allowing the Agent Bank or such
Representative to vote the Securities) in order to enable it to enforce any and
all claims with respect to all amounts payable in respect of the Securities to
which they are entitled under the Indenture, and (c) to collect and receive any
and all payments with respect to all amounts payable in respect of the
Securities to which they are entitled under the Indenture.
SECTION 6.10. Priorities. If the Trustee collects any money
pursuant to this Article VI, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
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SECOND: to holders of Senior Indebtedness in accordance with
Article X hereof;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
FOURTH: to the Company or any other obligors on the
Securities, as their interests may appear, or as a court of competent
jurisdiction may direct.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Securityholders pursuant to
this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section 6.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or
a suit by Holders of more than 10% in principal amount of the Securities then
outstanding.
SECTION 6.12. Parties May Be Restored to Former Position and
Rights in Certain Circumstances. In the event the Trustee shall have proceeded
to enforce any right under this Indenture by suit, foreclosure or otherwise and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then in every such case,
the Company and the Trustee shall be restored without further act to their
respective former positions and rights hereunder, and all rights, remedies and
powers of the Trustee shall continue as though no such proceedings had been
taken, except to the extent determined in litigation adversely to the Trustee.
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ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically set forth
in this Indenture and no implied covenants or obligations shall be read into
this Indenture against the Trustee, and (2) in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and opinions to
determine whether or not, on their face, they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct except that: (1) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01, (2) the Trustee shall not be liable for any
error of judgment made in good faith by a Trust Officer or other officer,
unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts, and (3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee may refuse
to perform any duty or exercise any right or power unless it receives
indemnity satisfactory to it against any loss, liability, cost or
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expense (including, without limitation, reasonable fees of counsel).
(f) The Trustee shall not be obligated to pay interest on any
money received by it unless otherwise agreed in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely
on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through attorneys and agents and
shall not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) The Trustee may consult with counsel and the advice of
such counsel as to matters of law shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(f) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient
if signed by an Officer of the Company.
SECTION 7.03. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate of the
Company with the same rights it would have if it were not Trustee. Any Agent
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may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture, the
Securities; it shall not be accountable for the Company's use of the proceeds
from the Securities, or any money paid to the Company upon the Company's
direction under any provision hereof; it shall not be responsible for the use
or application of any money received by any Paying Agent other than the
Trustee; and it shall not be responsible for the recitals herein and in the
Securities or any other statement of the Company in this Indenture or any
statement in the Securities other than its certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default or Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to Securityholders a notice of the Default or Event of Default
within 90 days after the occurrence thereof. Except in the case of a Default
or Event of Default in payment of any Security (including any failure to make
any mandatory redemption payment required hereunder), the Trustee may withhold
the notice if and so long as it in good faith determines that withholding the
notice is in the interests of the Securityholders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days
after each May 15 beginning with May 15, 1994, the Trustee shall mail to
Securityholders a brief report dated as of such reporting date that complies
with TIA Section 313(a) (but if no event described in TIA Section 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). Commencing at such time, the Trustee also shall comply with
TIA Section 313(b)(2). The Trustee shall also transmit reports required by
TIA Section 313 by mail as required by TIA Section 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC, if required, and each stock
exchange, if any, on which the Securities are listed. The Company shall notify
the Trustee when the Securities are listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time reasonable compensation for its services
hereunder. If the
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Trustee acts as Paying Agent pursuant to Section 4.09 hereof, the Company shall
pay the Trustee additional compensation for so acting as paying agent. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable disbursements, advances and expenses incurred by it,
including in particular, but without limitation, those incurred in connection
with the enforcement of any remedies hereunder. Such expenses may include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
Except as set forth in the next paragraph, the Company shall
indemnify and hold harmless the Trustee, its directors, officers, employees and
agents against any loss, liability, cost or expense (including, without
limitation, fees and expenses of counsel) incurred by it arising out of or in
connection with the acceptance or administration of the trust under this
Indenture, including without limitation the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of, or failure to exercise or perform, any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend such claim and the
Trustee shall cooperate in such defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel.
The Company need not reimburse any expense or indemnify
against any loss, liability, cost or expense incurred by the Trustee through
negligence, wilful misconduct or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, except that held in trust to pay the
principal of and interest on particular Securities. Such obligations shall
survive the satisfaction and discharge of the Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in clause (vi) or (vii) of Section 6.01 occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
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SECTION 7.08. Replacement of Trustee. A resignation or
removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in principal
amount of the then outstanding Securities may remove the Trustee by so
notifying the Trustee and the Company. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10 or TIA Section 310; (ii) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law; (iii) a Custodian
or public officer takes charge of the Trustee or its property; or (iv) the
Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee. The Trustee shall be entitled to payment of its fees and
reimbursement of its expenses while acting as Trustee. Within one year after
the successor Trustee takes office, the Holders of at least a majority in
principal amount of then outstanding Securities may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the then
outstanding Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with clauses (i) through (iv)
of the second paragraph of this Section, any Securityholder may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The Company shall mail a
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notice of the successor Trustee's succession to Securityholders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.07.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 hereof shall continue for the benefit
or the retiring Trustee with respect to expenses, losses and liabilities
incurred by it prior to such replacement.
SECTION 7.09. Successor Trustee by Merger, Etc. Subject to
Section 7.10, if the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the successor entity without any
further act shall be the successor Trustee. In case any Securities have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation of such authenticating trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 7.10. Eligibility; Disqualification. There shall at
all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America or of any state
thereof or the District of Columbia authorized under such laws to exercise
corporate trust powers, shall be subject to supervision or examination by
Federal or state authority or a District of Columbia authority and shall have
combined capital and surplus of at least $150,000,000 as set forth in its most
recent published annual report of condition.
Subject to the preceding paragraph, this Indenture shall
always have a Trustee who satisfies the requirements of TIA Section 310(a)(1)
and (5). The Trustee is subject to TIA Section 310(b).
SECTION 7.11. Preferential Collection of Claims Against the
Company. The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
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ARTICLE VIII
Discharge of Indenture
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.07, it being
understood that such Securities are no longer outstanding) for cancellation or
(ii) all outstanding Securities have become due and payable and the Company
irrevocably deposits with the Trustee funds or U.S. Government Obligations
sufficient (without reinvestment thereof) to pay at maturity all outstanding
Securities, including all interest thereon to the date of such deposit (in the
case of Securities which have become due and payable) or to the stated maturity
or Redemption Date, as the case may be (other than Securities replaced pursuant
to Section 2.07, it being understood that such Securities are no longer
outstanding), and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Sections
8.01(c) and 8.06, cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance and discharge of the Securities
as contemplated by this Article VIII have been complied with, and at the cost
and expense of the Company.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Company
at any time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10 and 4.11 (to the extent
failure to comply with such Section shall not violate the TIA) and 11.01 (the
"covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default. If
the Company exercises its covenant defeasance option, payment of the Securities
may not be accelerated because of an Event of Default specified in Section
6.01(iii) arising from a violation of any of Sections 4.02 through 4.10, 4.11
or 11.01.
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Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clause (a) or the exercise of the legal
defeasance option as set forth above, the Company's obligations in Sections
2.03, 2.04, 2.05, 2.06, 2.07, 2.13, 7.07, 7.08, 8.04, 8.05 and 8.06 shall
survive until the Securities have been paid in full. Thereafter, the Company's
obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02 Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal of
and interest on the Securities to maturity or redemption, as the case
may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and
interest when due on all the Securities to maturity or redemption, as
the case may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(vi) or (vii) with
respect to the Company occurs which is continuing at the end of the
period;
(4) no Default has occurred and is continuing on the date of
such deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article X;
(6) in the case of the exercise of its legal defeasance
option, the Company shall have delivered to
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the Trustee an Opinion of Counsel stating that (i) the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Securityholders will not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance had not occurred; and
(7) the Company delivers to the Trustee promptly after the end
of the period referred to in clause (3) above an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
to the defeasance and, in the case of the legal defeasance option, the
discharge of the Securities as contemplated by this Article VIII have
been complied with.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust the money or U.S. Government Obligations deposited with it
pursuant to this Article VIII. It shall apply the deposited money and the
money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Securities. Money and U.S. Government Obligations held in trust are not
subject to Article X.
SECTION 8.04. Repayment to Company. The Trustee and the
Paying Agent shall promptly pay to the Company upon written request any excess
money or securities held by them at any time, provided that such request need
not be honored if to do so would require the liquidation of any U.S. Government
Obligations held pursuant to this Article.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon written request of the
Company any money held by it for the payment of principal of or interest on the
Securities that remains unclaimed for two years, and, thereafter,
Securityholders entitled to the money must look to the Company for payment as
general creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the
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Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent
is unable to apply any money in accordance with this Article VIII by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article VIII until such time as the Trustee or Paying Agent is permitted
to apply all such money or U.S. Government Obligations in accordance with this
Article VIII; provided, however, that, if the Company has made any payment of
principal of, or interest on, any Security because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Company and
the Trustee may amend this Indenture or the Securities without the consent of
any Securityholder: (i) to cure any ambiguity, defect or inconsistency or make
any change required to qualify the Indenture under the TIA; provided that such
change does not adversely affect the rights hereunder of any Securityholder;
(ii) to comply with Section 5.01; (iii) to provide for uncertificated
Securities in addition to certificated Securities; or (iv) to make any change
that does not adversely affect the rights hereunder of any Securityholder.
SECTION 9.02. With Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities with the written consent of
the Holders of at least a majority in principal amount of the then outstanding
Securities. Upon the request of the Company, accompanied by a Board Resolution
of the Company authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of the
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Securityholders as aforesaid, the Trustee, subject to Section 9.06, shall join
with the Company in the execution of such supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or waiver under this Section becomes
effective, the Company shall mail to the Holder of each Security affected
thereby and to the Agent Bank a notice briefly describing the amendment or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amendment or waiver. The Holders of at least a majority in principal amount of
the Securities then outstanding may waive compliance in a particular instance
by the Company with any provision of this Indenture or the Securities.
However, without the consent of each Securityholder affected, an amendment or
waiver under this Section may not: (i) reduce the amount of Securities whose
Holders must consent to an amendment or waiver; (ii) reduce the rate of or
change the time for payment of interest, including default interest, on any
Security; (iii) reduce the principal of or change the fixed maturity of any
Security or alter the redemption provisions with respect thereto; (iv) make any
Security payable in money other than that stated in the Security; (v) make any
change in Section 6.04, 6.07 or this fourth sentence of the third paragraph of
Section 9.02; (vi) make any change in Article X that affects the rights of any
Holder; or (vii) release the Company from any of its Obligations hereunder.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents. Until an
amendment or waiver becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives
written notice
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of revocation before the date the amendment or waiver becomes effective. An
amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Securityholder.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies), and only those
persons, shall be entitled to consent to such amendment or waiver or to revoke
any consent previously given, whether or not such persons continue to be
Holders after such record date. The consent shall expire 90 days after such
record date.
SECTION 9.05. Notation on or Exchange of Securities. The
Trustee may place an appropriate notation about an amendment or waiver on any
Security thereafter authenticated. The Company in exchange for all Securities
may issue, and the Trustee shall authenticate, new Securities that reflect the
amendment or waiver.
SECTION 9.06. Trustee To Sign Amendments, etc. The Trustee
shall sign any amendment authorized pursuant to this Article IX if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not sign it.
In signing or refusing to sign such amendment, the Trustee shall be entitled to
receive and shall be fully protected in relying upon an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that such amendment is
authorized or permitted by this Indenture.
ARTICLE X
Subordination
SECTION 10.01. Securities Subordinated to Senior
Indebtedness. Notwithstanding the provisions of Sections 6.02 and 6.03 hereof,
the Company covenants and agrees, and the Trustee and each Holder of the
Securities by his acceptance thereof likewise covenants and agrees, that all
payments of the principal of and interest on the Securities by the Company
shall be subordinated in accordance with the provisions of this Article X to
the prior and
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indefeasible payment in full, in cash or cash equivalents, of all Obligations
with respect to Senior Indebtedness.
SECTION 10.02. Priority and Payment Over of Proceeds in
Certain Events. (a) Upon any payment or distribution of assets or securities
of the Company, as the case may be, of any kind or character, whether in cash,
property or securities, upon any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings, all
Obligations with respect to Senior Indebtedness shall first be indefeasibly
paid in full in cash, or payment provided for in cash or cash equivalents,
before the Holders or the Trustee on behalf of the Holders shall be entitled to
receive any payment of principal of or interest on the Securities or
distribution of any assets or securities. Before any payment may be made by
the Company of the principal of or interest on the Securities pursuant to the
provisions of the previous sentence, and upon any such dissolution or winding
up or liquidation or reorganization, any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property
or securities, to which the Holders or the Trustee on their behalf would be
entitled, except for the provisions of this Article X, shall be made by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution, directly to the holders of
the Senior Indebtedness or their Representatives to the extent necessary to pay
all such Senior Indebtedness in full after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
(b) No direct or indirect payment by or on behalf of the
Company of principal of or interest on the Securities whether pursuant to the
terms of the Securities or upon acceleration or otherwise shall be made if, at
the time of such payment, (i) there exists a default in the payment of any
Obligations with respect to Senior Indebtedness or the maturity of such Senior
Indebtedness has been accelerated or (ii) any judicial proceeding shall be
pending with respect to a default on Senior Indebtedness (and the Trustee has
received written notice thereof), and such default shall not have been cured or
waived or the benefits of this sentence waived by or on behalf of the holders
of such Senior Indebtedness. In addition, during the continuance of any other
event of default with respect to (i) the Credit Agreement pursuant to which the
maturity thereof may be accelerated,
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upon (a) receipt by the Trustee of written notice from the Agent Bank (or any
Representative of any Senior Indebtedness which refinances or refunds the
Credit Agreement so long as amounts outstanding under such agreement are in
excess of $50,000,000), or (b) if such event of default results from the
acceleration of the Securities, on the date of such acceleration, no such
payment may be made by the Company upon or in respect of the Securities for a
period ("Payment Blockage Period") commencing on the earlier of the date of
receipt of such notice or the date of such acceleration and ending 119 days
thereafter (unless such Payment Blockage Period shall be terminated by written
notice to the Trustee from the Agent Bank (or any Representative of any Senior
Indebtedness under any agreement which refinances or refunds the Credit
Agreement so long as amounts outstanding under such agreement are in excess of
$50,000,000) or (ii) any other Specified Senior Indebtedness upon receipt by
the Company of written notice from the Representative for the holders of such
Specified Senior Indebtedness, no such payment may be made by the Company upon
or with respect to the Securities for a Payment Blockage Period commencing on
the date of the receipt of such notice and ending 119 days thereafter (unless
such Payment Blockage Period shall be terminated by written notice to the
Company from such Representative commencing such Payment Blockage Period).
Notwithstanding anything herein to the contrary, in no event will any one
Payment Blockage Period extend beyond 179 days from the date the payment on the
Securities was due. No more than one Payment Blockage Period may be commenced
with respect to the Securities during any period of 360 consecutive days;
provided that as long as amounts outstanding under the Credit Agreement or any
agreement which refinances or refunds the Credit Agreement are in excess of
$50,000,000, the commencement of a Payment Blockage Period by the holders of
the Specified Senior Indebtedness other than the Credit Agreement shall not bar
the commencement of a Payment Blockage Period by the Agent Bank within such
period of 360 days. For all purposes of this Section 10.02(b), no event of
default which existed or was continuing on the date of the commencement of any
Payment Blockage Period with respect to the Specified Senior Indebtedness
initiating such Payment Blockage Period shall be, or be made, the basis for the
commencement of a second Payment Blockage Period by the Representative of such
Specified Senior Indebtedness whether or not within a period of 360 consecutive
days unless such event of default shall have been cured or waived for a period
of not less than 90 consecutive days.
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If payments with respect to both the Securities and Senior
Indebtedness become due on the same day, then all Obligations with respect to
such Senior Indebtedness due on that date shall first be paid in full before
any payment is made with respect to the Securities.
(c) In the event that, notwithstanding the foregoing
provision prohibiting such payment or distribution, the Trustee or any Holder
shall have received any payment on account of the principal of or interest on
the Securities at a time when such payment is prohibited by this Section 10.02
and before all Obligations with respect to Senior Indebtedness are paid in
full, then and in such event (subject to the provisions of Section 10.08) such
payment or distribution shall be received and held in trust for the holders of
Senior Indebtedness and, upon notice to the Trustee from the Representative of
the holders of the Senior Indebtedness and pursuant to the directions of such
Representative, shall be paid over or delivered to the holders of the Senior
Indebtedness remaining unpaid to the extent necessary to pay in full in cash or
cash equivalents all Obligations with respect to such Senior Indebtedness in
accordance with its terms after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
If there occurs an event referred to in Section 10.02(a) or
(b), the Company shall promptly give the Trustee an Officers' Certificate (on
which the Trustee may conclusively rely) identifying all holders of Senior
Indebtedness and the principal amount of Senior Indebtedness then outstanding
held by each such holder and stating the reasons why such Officers' Certificate
is being delivered to the Trustee.
Nothing contained in this Article X shall limit the right of
the Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided that all Obligations with respect to Senior
Indebtedness then or thereafter due or declared to be due shall first be paid
in full before the Holders or the Trustee are entitled to receive any payment
from the Company of principal of or interest on the Securities.
Upon any payment or distribution of assets or securities
referred to in this Article X, the Trustee and the Holders shall be entitled to
rely upon any order or
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decree of a court of competent jurisdiction in which such dissolution, winding
up, liquidation or reorganization proceedings are pending and upon a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making any such payment or distribution, delivered to the
Trustee for the purpose of ascertaining the persons entitled to participate in
such 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
X.
SECTION 10.03. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article X or elsewhere in this Indenture shall
prevent (i) the Company, except under the conditions described in Section
10.02, from making payments at any time for the purpose of making such payments
of principal of and interest on the Securities, or from depositing with the
Trustee any moneys for such payments, or (ii) without limiting the last
sentence of Section 8.03, the application by the Trustee of any moneys
deposited with it for the purpose of making such payments of principal of and
interest on the Securities, to the Holders entitled thereto unless at least two
Business Days prior to the date upon which such payment would otherwise become
due and payable, the Trustee shall have received the written notice provided
for in Section 10.02(b) or in Section 10.09. The Company shall give prompt
written notice to the Trustee of any dissolution, winding up, liquidation or
reorganization of the Company.
SECTION 10.04. Rights of Holders of Senior Indebtedness Not
To Be Impaired. No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act in good faith by
any such holder, or by any noncompliance by the Company, with the terms and
provisions and covenants herein regardless of any knowledge thereof any such
holder may have or otherwise be charged with.
The provisions of this Article X are intended to be for the
benefit of, and shall be enforceable directly by, the holders of the Senior
Indebtedness.
SECTION 10.05. Authorization to Trustee To Take Action To
Effectuate Subordination. Each Holder of Securities by his acceptance thereof
authorizes and directs the
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Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate, as between the holders of Senior Indebtedness and the Holders, the
subordination as provided in this Article X and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 10.06. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders or owners of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative.
SECTION 10.07. Subrogation. Upon the payment in full of all
Obligations in respect of Senior Indebtedness, the Holders shall be subrogated
to the rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company to the holders of Senior Indebtedness
until the principal of and interest on the Securities shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders
of the Senior Indebtedness of any cash, property or securities to which the
Holders would be entitled except for the provisions of this Article X, and no
payment over pursuant to the provisions of this Article X to the holders of
Senior Indebtedness by the Holders, shall, as among the Company, its creditors
other than the holders of Senior Indebtedness and the Holders, be deemed to be
a payment or distribution by the Company to or on account of Senior
Indebtedness.
The provisions of this Article X are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one
hand, and the holders of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article X shall
have been applied, pursuant to the provisions of this Article X, to the payment
of all amounts payable under Senior Indebtedness, then and in such case, the
Holders shall be entitled to receive from the holders of such Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of Senior Indebtedness in excess of the amount sufficient to pay
all Obligations in respect of Senior Indebtedness in full.
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SECTION 10.08. Obligations of Company Unconditional. Nothing
contained in this Article X or elsewhere in this Indenture or in any Security
is intended to or shall impair, as between the Company and the Holders, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders the principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms or is intended to
or shall affect the relative rights of the Holders and creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon Default under this Indenture,
subject to the rights, if any, under this Article X of the holders of such
Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article X shall
not be construed as preventing the occurrence of an Event of Default under
Section 6.01.
SECTION 10.09. Trustee Entitled To Assume Payments Not
Prohibited in Absence of Notice. Neither the Trustee nor the Paying Agent
shall at any time be charged with the knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee or the
Paying Agent, unless and until the Trustee or Paying Agent shall have received
written notice thereof from the Company or one or more holders of Senior
Indebtedness or from any Representative therefor; and, prior to the receipt of
any such written notice, the Trustee or Paying Agent shall be entitled to
assume conclusively that no such facts exist. Unless at least two Business
Days prior to the date on which by the terms of this Indenture any moneys are
to be deposited by the Company with the Trustee or any Paying Agent (whether or
not in trust) for any purpose (including, without limitation, the payment of
the principal of or the interest on any Security), the Trustee or Paying Agent
shall have received with respect to such moneys the notice provided for in the
preceding sentence, the Trustee or Paying Agent shall have full power and
authority to receive such moneys and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary
which may be received by it on or after such date. Without limiting the last
sentence of Section 8.03, nothing
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contained in this Section 10.09 or Section 10.03(ii) shall limit the right of
the holders of Senior Indebtedness to recover payments as contemplated by
Section 10.02. The Trustee shall be entitled to rely on the delivery to it of
a written notice by a person representing himself or itself to be a holder of
such Senior Indebtedness (or a trustee on behalf of, or Representative of, such
holder) to establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or Representative on behalf of any such holder.
The Trustee shall not be deemed to owe any duty to the
holders of Senior Indebtedness.
SECTION 10.10. Right of Trustee To Hold Senior Indebtedness.
The Trustee and any Agent shall be entitled to all of the rights set forth in
this Article X in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of such Senior Indebtedness, and nothing in
this Indenture shall be construed to deprive the Trustee or any Agent of any of
its rights as such holder.
ARTICLE XI
Right To Require Repurchase
SECTION 11.01. Repurchase of Securities at Option of the
Holder upon Change of Control Triggering Event. (a) Upon the occurrence of a
Change of Control Triggering Event, each Holder of Securities shall have the
right to require that the Company repurchase such Holder's Securities in whole
or in part in integral multiples of $1,000, at a purchase price (the "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, in
accordance with the procedures set forth in Subsections (b) and (c) of this
Section.
(b) Within 30 days following any Change of Control Triggering
Event, the Company shall send by first-class mail, postage prepaid, to the
Trustee and to each Holder of the Securities at his or her address appearing
in the Securities register, a notice stating:
(1) that a Change of Control Triggering Event has occurred and
that such Holder has the right to require
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the Company to repurchase such Holder's Securities at the Purchase
Price;
(2) the circumstances and relevant facts regarding such Change
of Control Triggering Event (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
Triggering Event);
(3) a purchase date (the "Purchase Date") which shall be no
fewer than 30 days nor more than 60 days from the date such notice is
mailed or if not a Business Day, the next following Business Day;
(4) the Purchase Price;
(5) the place at which Securities are to be presented and
surrendered;
(6) that interest accrued to the Purchase Date will be paid as
specified in such notice and that, unless the Company shall default in
payment of the Purchase Price, after said Purchase Date interest
thereon will cease to accrue with respect to any Securities presented
and surrendered for purchase;
(7) that any Security not tendered will continue to accrue
interest;
(8) that Holders of Securities electing to have any Securities
purchased pursuant to a Change of Control Triggering Event will be
required to surrender the Securities to the Paying Agent on the 15th
day prior to the Purchase Date; and
(9) that Holders of Securities whose Securities are being
purchased only in part will be issued new Securities equal in
principal amount to the unpurchased portion of the Securities
surrendered; provided that each Security purchased and each such new
Security issued by the Company shall be, in a principal amount of
$1,000 or integral multiples thereof.
(c) Prior to the mailing by the Company of the notice
described in subsection (b) above and if any Senior Indebtedness under the
Credit Agreement is outstanding, the Company shall either (i) repay in full all
such Senior
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Indebtedness under the Credit Agreement or offer to repay in full all such
Senior Indebtedness under the Credit Agreement and repay the Senior
Indebtedness of each Bank that has accepted such offer or (ii) if any such
Senior Indebtedness under the Credit Agreement is not repaid, obtain the
requisite consent of the applicable Bank or Banks under the Credit Agreement,
in both cases so as to permit the repurchase of the Securities pursuant to this
Section. The Company shall first comply with the covenant in the preceding
sentence before it shall be required to repurchase Securities pursuant to a
Change of Control Triggering Event; provided, however, that the failure to
comply with such covenant shall not thereby be excused and such failure shall
constitute a Default pursuant to Section 6.01.
(d) Holders of Securities electing to have such Securities
purchased will be required to give notice thereof no fewer than 15 days before
the Purchase Date and to surrender such Securities to the Company at the
address specified in the Company's notice by the close of business on the
fifteenth day prior to the Purchase Date. Any such notice and surrender of
Securities for purchase by the Company shall be irrevocable. No such
Securities shall be deemed to have been presented and surrendered until such
Securities are actually received by the Company or its designated agent.
Holders of the Securities whose Securities are purchased only in part will be
issued new Securities equal in principal amount to the unpurchased portion of
the Securities surrendered.
(e) Notwithstanding anything to the contrary herein or in the
Securities, the Company shall not be obligated to give notice to Holders of
Securities or to purchase Securities with respect to more than one Change of
Control Triggering Event.
(f) Notwithstanding any other provisions of this Section,
there shall be no repurchase of any Securities pursuant to this Section if
there has occurred (prior to, on or after the giving, by the Holders of such
Securities, of the required notice) and is continuing an Event of Default or if
such repurchase is prohibited by Article X of this Indenture. The foregoing
shall in no way limit the occurrence of an Event of Default or the right to
demand payment of the Securities upon acceleration thereafter.
SECTION 11.02. Covenant To Comply with Securities Laws upon
Purchase of Securities. In connection with any
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purchase of Securities under Section 11.01, the Company shall, to the extent
then applicable and required by law, (i) comply with Rule 13e-4 and Rule 14e-1
(which term, as used herein, includes any successor provision thereto) under
the Exchange Act and (ii) otherwise comply with all Federal and state
securities laws so as to permit the rights and obligations under Section 11.01
to be exercised in the time and in the manner specified in Section 11.01.
ARTICLE XII
Miscellaneous
SECTION 12.01. Trust Indenture Act Controls. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the TIA, such imposed duties or incorporated provision shall control.
SECTION 12.02. Notices. Any notice or communication to the
Company or the Trustee is duly given if in writing and delivered in person or
mailed by first-class mail to the address set forth below:
If to the Company:
Lear Seating Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention of Chief Financial Officer or Treasurer
with a copy to:
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attention of Bruce Toth, Esq.
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If to the Trustee for purposes of Article II hereof:
The First National Bank of Boston
c/o Banc Boston Trust Company of New York
55 Broadway - 3rd Floor
New York, NY 10006
If to the Trustee for all other notices and communications
hereunder:
The First National Bank of Boston
150 Royall Street
Mail Stop 45-02-15
Canton, MA 02021
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be
mailed by first-class mail to his address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Securityholder or
any defect in such notice or communication shall not affect its sufficiency
with respect to other Securityholders.
If a notice or communication is mailed or sent in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it, except that notice to the Trustee shall only be
effective upon receipt thereof by the Trustee.
If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and each Agent at the same
time.
SECTION 12.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate (which shall include the statements set forth in
Section 12.05) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been complied with; and (ii) an Opinion of Counsel
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 14.05) stating
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that, in the opinion of such counsel, all such conditions precedent and
covenants have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate (other than certificates provided pursuant to Section 4.12(b)
or opinion with respect to compliance with a condition or covenant provided for
in this Indenture shall include: (i) a statement that the person making such
certificate or opinion has read and understands such covenant or condition;
(ii) 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; (iii) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (iv) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 12.06. Rules by Trustee and Agents. The Trustee may
make reasonable rules for action by or for a meeting of Securityholders. The
Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.
SECTION 12.07. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions in the City of New
York are not required or authorized to be open. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for
the intervening period.
SECTION 12.08. Duplicate Originals. The parties may sign any
number of copies of this Indenture. One signed copy is enough to prove this
Indenture.
SECTION 12.09. Governing Law. The internal laws of the State
of New York shall govern this Indenture and the Securities, without regard to
the conflicts of law rules thereof. Each of the parties hereto agrees to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Indenture.
SECTION 12.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret
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another indenture, loan or debt agreement of the Company or any subsidiary.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 12.11. Successors. All agreements of the Company in
this Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.
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SECTION 12.12. Severability. 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 12.13. Counterpart Originals. This Indenture may be
signed in one or more counterparts. Each signed copy shall be an original, but
all of them together represent the same agreement.
LEAR SEATING CORPORATION,
by /s/ Donald J. Stebbins
--------------------------
Dated: February 1, 1994
THE FIRST NATIONAL BANK OF BOSTON, as Trustee,
by /s/ James Schultz
--------------------------
Authorized Signatory
Dated: February 3, 1994
[Seal]
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EXHIBIT A
-
[Form of Face of Security]
$
LEAR SEATING CORPORATION
8-1/4% SUBORDINATED NOTE DUE 2002
LEAR SEATING CORPORATION, a Delaware corporation (the "Issuer",
which term includes any successor corporation), promises to pay to
or registered assigns, the principal
sum of Dollars on February 1, 2002.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated: LEAR SEATING CORPORATION
by
-----------------------------
by
-----------------------------
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2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within mentioned
Indenture.
[CORPORATE SEAL] THE FIRST NATIONAL BANK OF
BOSTON, as Trustee,
by
----------------------------------
Authorized Signatory
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[FORM OF REVERSE OF SECURITY]
LEAR SEATING CORPORATION
8-1/4% SUBORDINATED NOTE DUE 2002
(1) INTEREST. LEAR SEATING CORPORATION, a Delaware corporation
(the "Issuer"), promises to pay interest on the principal amount of this
Security at an interest rate per annum of 8-1/4%.
The Issuer shall pay interest semiannually, on February 1 and August 1
of each year (each an "Interest Payment Date") commencing August 1, 1994.
Interest on the Securities (as defined in the Indenture) shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from February 3, 1994. The Issuer shall pay interest on overdue
principal (including interest accruing on or after filing of any petition in
bankruptcy or reorganization relating to the Issuer, whether or not a claim for
post-filing interest is allowed in such proceeding) at the rate then borne by
the Securities; it shall pay interest, to the extent permitted by law
(including interest accruing on or after filing of any petition in bankruptcy
or reorganization relating to the Issuer, whether or not a claim for post
filing interest is allowed in such proceeding), on overdue installments of
interest at the rate then borne by the Securities. Interest shall be computed
on the basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Issuer shall pay interest on this Security
(except defaulted interest) to the person who is the registered holder of this
Security at the close of business on the record date next preceding the
Interest Payment Date. The holder must surrender this Security to a Paying
Agent to collect payments of principal and premium. Payments of interest may
be mailed to the holder's registered address. The Issuer shall pay
principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. The Issuer,
however, may pay principal and interest by its check payable in such money. If
a payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal
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2
Holiday, and no interest on the amount payable on such payment date shall
accrue for the intervening period.
(3) PAYING AGENT AND REGISTRAR. Initially, the Trustee shall act as
Paying Agent and Registrar. The Issuer may change any Paying Agent, Registrar
and coregistrar without notice to any Securityholder. The Issuer or any of
its Affiliates may act in any such capacity.
(4) INDENTURE. This Security is one of the Securities that may be
issued from time to time by the Issuer under an Indenture dated as of February
1, 1994 (the "Indenture"), between the Issuer and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture
and such Act for a statement of such terms.
The Securities are general obligations of the Issuer and limited to
$145,000,000 in aggregate principal amount.
(5) OPTIONAL REDEMPTION. On or after February 1, 1998 the Issuer may
redeem all the Securities at any time or some of them from time to time at the
following redemption prices (expressed in percentages of the principal amount
thereof), in each case together with accrued interest, if any, to the date of
redemption. If redeemed during the 12-month period commencing February 1:
1988 ........................................... 101.65%
1999 and thereafter ............................ 100%
(6) CHANGE OF CONTROL. In the event there shall occur any Change of
Control Triggering Event (as defined in the Indenture) with respect to the
Company, each Holder of Securities shall have the right, at such Holder's
option but subject to the conditions set forth in the Indenture, to require the
Issuer to purchase on the Purchase Date (as defined in the Indenture) all or
any part of such Holder's Securities at a purchase price equal to 101% of the
principal amount thereof, together with accrued and unpaid interest (subject to
the right of Holders of record on each record date to receive interest due on
the related Interest Payment Date) to the Purchase Date and in the manner
specified in the Indenture.
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3
Notwithstanding anything to the contrary herein or in the Indenture,
the Issuer shall not be obligated to give notice to Holders of Securities or to
purchase Securities with respect to more than one Change of Control Triggering
Event.
(7) OFFER TO PURCHASE IN CONNECTION WITH SALES OF ASSETS. If there
are certain Net Cash Proceeds from Asset Sales, Section 4.08 of the Indenture
contains provisions under which the Issuer is required to commence an offer to
purchase Securities at a purchase price equal to 100% of their principal amount
plus accrued interest, if any.
(8) NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 15 days but not more than 60 days before the Redemption Date to each
holder of Securities to be redeemed at his registered address. Securities in
demoninations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. On and after the Redemption Date interest ceases to
accrue on Securities or defaults in making the redemption payment.
If the Redemption Date is subsequent to a record date with respect to
any Interest Payment Date and on or prior to such Interest Payment Date, then
such accrued interest, if any, shall be paid to the person in whose name this
Security is registered at the close of business on such record date and no
other interest shall be payable thereon.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and
Securities may be exchanged as provided in 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 exchange or register the transfer of
any Security or portion of a Security selected for redemption. Also it need
not exchange or register the transfer of any Securities for a period of 15 days
before a selection of Securities to be redeemed.
(10) PERSONS DEEMED OWNERS. The registered holder of a Security may
be treated as its owner for all purposes.
87
(11) UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent
shall pay the money back to the Issuer at its request. After that,
Securityholders entitled to the money must look to the Issuer for payments
unless an abandoned property law designates another person and all liability of
the Trustee and such Paying Agent with respect to such money shall cease.
(12) DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Issuer
deposits with the Trustee money or U.S. Government Obligations sufficient to
pay principal of, premium, if any, and accrued interest on the Securities to
redemption or maturity, and any other amounts payable under the Indenture, the
Issuer shall be discharged from the Indenture and the Securities, except for
certain sections thereof.
(13) AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Securities may be amended, and any existing default may be
waived, with the consent of the holders of at least a majority in principal
amount of the then outstanding Securities. Without the consent of any
Securityholdler, the Indenture or the Securities may be amended to cure any
ambiguity, defect or inconsistency, to provide for the assumption of the
obligations of the Issuer under the Indenture by a successor corporation, to
provide for uncertificated Securities in addition to certificated Securities or
to make any change that does not adversely affect the rights of any
Securityholdler.
(14) SUBORDINATION. The Securities are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full of all Senior Indebtedness (as defined in the Indenture)
of the Issuer whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed. To the extent and in the manner
provided in the Indenture, Senior Indebtedness must be paid before any payment
may be made to any Holder of this Security. Each Securityholder by his
acceptance hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee, on his behalf, to take such action as may be
necessary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-fact for such purpose.
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(15) DEFAULTS AND REMEDIES. An Event of Default is: default for 30 days
in payment of interest on the Securities; default in payment of principal of
the Securities at maturity, upon acceleration, redemption or otherwise; failure
by the Issuer for 30 days after notice to it to comply with any of its other
agreements in the Indenture or the Securities; certain events of accelration
prior to maturity of other Indebtedness; certain final judgments which remain
undischarged; certain events of bankruptcy or insolvency of the Issuer or any
of its Significant Subsidiaries; and certain other events. If an Event of
Default occurs and is continuing, the Trustee or the holders of at least 25% in
principal amount of the then outstanding Securities may declare to be due and
payable immediately 100% of the principal amount of the Securities, except that
in the case of an Event of Default arising from certain events of bankruptcy or
insolvency of the Issuer, 100% of the principal amount of the Securities
becomes due and payable immediately without further action or notice.
Securityholders 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. The
Trustee may withhold from Securityholders notice of any continuing default
(except a default payment of principal or interest) if its determines that
withholding notice is in their interests. The Issuer must provide an annual
compliance certificate to the Trustee.
(16) TRUSTEE DEALINGS WITH ISSUER. The Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Issuer or its Affiliates, as if it were not Trustee.
(17) NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Issuer shall not have any liability for any
obligations of the Issuer under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issuer of the Securities.
89
(18) AUTHENTICATION. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
(19) ABBREVIATIONS. Customary abbreviations may be used in the name of
a Securityholder 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 (= Cutodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
(20) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Securities as a convenience to the holders
of such 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.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
___________________________________________________________________________
_________________________
(INSERT ASSIGNEE'S SOCIAL SECURITY OR TAX ID NUMBER)
_______________________
| |
| |
|_______________________|
___________________________________________________________________________
_________________________
(Print or type assignee's name, address and zip code) and irrevocably
appoint agent to
___________________________________________________________________________
_________________________
transfer this Security on the books of the Issuer. The agent may substitute
another to act for him.
Date:______________________
Your Signature:______________________________________________
(Sign exactly as your name appears on the
other side of this Security.)
Signature
Guarantee:___________________________________________________
(Signature must be guaranteed by a member firm
of the New York Stock Exchange or a commercial
Bank or trust company.)
91
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuer
pursuant to Section 4.08 of the Indenture, check the box: / /
If you want to elect to have only a part of this Security purchased by
the Issuer pursuant to Section 4.08 of the Indenture, state the amount:
$:_____________
If you want to elect to have this Security purchased by the Issuer
pursuant to Section 11.01 of the Indenture, check the box: / /
If you want to elect to have only a part of this Security purchased by
the Issuer pursuant to Section 11.01 of the Indenture, state the amount:
$______________
Date:______________________
Your Signature:____________________________________________________
(Sign exactly as your name appears on the other side
of this Security.)
Signature Guarantee:_______________________________________________