EXHIBIT 10(uu)
UNITED RENTALS(NORTH AMERICA), INC.
as the Company
and
THE SUBSIDIARIES NAMED HEREIN
as Guarantors
to
STATE STREET BANK AND TRUST COMPANY
as Trustee
Indenture
Dated as of December 15, 1998
$300,000,000
93% Senior Subordinated Notes due 2009, Series A
$300,000,000
93% Senior Subordinated Notes due 2009, Series B
CROSS REFERENCE TABLE1
Trust Indenture Act Indenture
Section Section
- --------------------- --------------------
310(a)(1)....................................................... 6.9
310(a)(2)....................................................... 6.9
310(a)(3)....................................................... N.A2
310(a)(4)....................................................... N.A.
310(a)(5)....................................................... N.A.
310(b).......................................................... 6.8;
6.10
310(c).......................................................... N.A.
311(a).......................................................... 6.13
311(b).......................................................... 6.13
311(c).......................................................... N.A.
312(a).......................................................... 7.1;
7.2
312(b).......................................................... 7.2
312(c).......................................................... 7.2
313(a).......................................................... 7.3
313(b).......................................................... 7.3
313(c).......................................................... 1.6
313(d).......................................................... 7.3
314(a).......................................................... 7.4
314(b).......................................................... N.A.
1. Note: This Cross Reference Table shall not, for any
purpose, be deemed part of this Indenture.
2. Not Applicable.
Trust Indenture Act Indenture
Section Section
- --------------------- --------------------
314(c)(1)....................................................... 1.2
314(c)(2)....................................................... 1.2
314(c)(3)....................................................... N.A.
314(d).......................................................... N.A.
314(e).......................................................... 1.2
314(f).......................................................... N.A.
315(a).......................................................... 6.1
315(b).......................................................... 6.2
315(c).......................................................... 6.1
315(d).......................................................... 6.1
315(e).......................................................... 5.14
316(a)(1)(A).................................................... 5.12
316(a)(1)(B).................................................... 5.13
316(a)(2)....................................................... N.A.
316(a)(last sentence)........................................... 1.13
316(b).......................................................... 5.7;
5.8
316(c).......................................................... 1.4
317(a)(1)....................................................... 5.3
317(a)(2)....................................................... 5.4
317(b).......................................................... 10.3
317(a).......................................................... 1.7
3. Definition of "Outstanding."
TABLE OF CONTENTS
ARTICLE I
Definitions and Other Provisions
of General Application
Page
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SECTION 1.1 Definitions..... 2
8.80% Notes................... 3
41/2% Notes..................... 3
Acquired Indebtedness......... 3
Act........................... 3
Affiliate..................... 3
Asset Acquisition............. 3
Asset Sale.................... 4
Asset Sale Offer.............. 4
Asset Sale Offer Price........ 4
Asset Sale Purchase Date...... 4
Authenticating Agent.......... 4
Average Life to Stated
Maturity..................... 4
Board of Directors............ 5
Board Resolution.............. 5
Business Day.................. 5
Capital Stock................. 5
Capitalized Lease Obligation.. 5
Cash Equivalents.............. 6
Cedel......................... 6
Change of Control............. 6
Change of Control Offer....... 7
Change of Control Purchase
Date......................... 8
Change of Control Purchase
Price........................ 8
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Code.......................... 8
Commission.................... 8
Common Stock.................. 8
Company....................... 8
Company Request............... 8
Company Order................. 8
Consolidated Cash Flow
Available for Fixed Charges.. 8
Consolidated Fixed Charge
Coverage Ratio............... 9
Consolidated Fixed Charges.... 10
Consolidated Income Tax
Expense...................... 10
Consolidated Interest Expense. 10
Consolidated Net Income....... 11
Consolidated Non-cash Charges. 11
Consolidated Rental Payments.. 11
control....................... 12
Corporate Trust Office........ 12
corporation................... 12
Covenant Defeasance........... 13
Credit Facility............... 13
Default....................... 13
Defeasance.................... 13
Depositary.................... 13
Designated Guarantor Senior
Indebtedness................. 13
Designated Senior Indebtedness 13
Disinterested Member of the
Board of Directors of the
Company...................... 14
Distribution Compliance Period 14
Euroclear..................... 14
Event of Default.............. 14
Excess Proceeds............... 14
Exchange Act.................. 14
Exchange Securities........... 14
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Expiration Date............... 14
Fair Market Value............. 14
Federal Bankruptcy Code....... 14
GAAP.......................... 14
Global Securities............. 15
guarantee..................... 15
Guarantor Senior Indebtedness. 15
Guarantor Subordinated
Indebtedness................. 16
Guaranty...................... 16
Guaranty Obligations.......... 16
Holder........................ 17
Holdings...................... 17
Indebtedness.................. 17
Indenture..................... 18
Initial Purchaser............. 18
Initial Securities............ 18
Interest Payment Date......... 18
Interest Rate Protection
Agreement.................... 18
Interest Rate Protection
Obligations.................. 19
Investment.................... 19
Issue Date.................... 19
Lien.......................... 19
Maturity Date................. 19
Moody's....................... 19
Net Cash Proceeds............. 19
Non-U.S. Person............... 20
Notice of Default............. 20
Offer......................... 20
Offer to Purchase............. 20
Offering Circular............. 23
Officer's Certificate......... 23
144A Global Security.......... 24
Opinion of Counsel............ 24
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Outstanding................... 24
Paying Agent.................. 25
Permitted Holder.............. 25
Permitted Indebtedness........ 25
Permitted Investments......... 29
Permitted Liens............... 29
Person........................ 32
Preferred Stock............... 32
Private Placement Legend...... 32
Public Equity Offering........ 32
Purchase Amount............... 32
Purchase Date................. 32
Qualified Equity Interest..... 32
Qualified Institutional Buyer. 33
Record Expiration Date........ 33
Redeemable Capital Stock...... 33
Redemption Date............... 33
Redemption Price.............. 33
Registrable Securities........ 33
Registration Rights Agreement. 33
Regular Record Date........... 33
Regulation S.................. 33
Regulation S Global Security.. 34
Reorganization................ 34
Replacement Assets............ 34
Required Filing Dates......... 34
Responsible Officer........... 34
Restricted Payments........... 34
Restricted Security........... 34
Restricted Subsidiary......... 35
Revocation.................... 35
Rule 144A..................... 35
S&P........................... 35
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iv
Securities.................... 35
Securities Act................ 35
Security Register............. 35
Security Registrar............ 35
Senior Indebtedness........... 35
Significant Subsidiary........ 36
Special Record Date........... 36
Stated Maturity............... 36
Subordinated Indebtedness..... 37
Subsidiary.................... 37
Tangible Assets............... 37
Term Loan..................... 37
Trust Indenture Act........... 38
Trustee....................... 38
Unrestricted Securities....... 38
Unrestricted Subsidiary....... 38
U.S. Government Obligation.... 38
Vice President................ 38
Voting Stock.................. 38
Wholly-Owned Restricted
Subsidiary................... 38
SECTION 1.2 Compliance Certificates and Opinions.............................. 39
SECTION 1.3 Form of Documents Delivered to Trustee............................ 40
SECTION 1.4 Acts of Holders; Record Dates..................................... 40
SECTION 1.5 Notices to Trustee, the Company or a Guarantor.................... 44
SECTION 1.6 Notice to Holders; Waiver......................................... 44
SECTION 1.7 Conflict with Trust Indenture Act................................. 45
SECTION 1.8 Effect of Headings and Table of Contents.......................... 45
SECTION 1.9 Successors and Assigns............................................ 45
SECTION 1.10 Separability Clause............................................... 45
SECTION 1.11 Benefits of Indenture............................................. 46
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Page
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SECTION 1.12 Governing Law..................................................... 46
SECTION 1.13 Legal Holidays.................................................... 46
ARTICLE II
Security Forms
SECTION 2.1 Forms Generally................................................... 46
ARTICLE III
The Securities
SECTION 3.1 Title and Terms................................................... 47
SECTION 3.2 Denominations..................................................... 48
SECTION 3.3 Execution, Authentication, Delivery and Dating.................... 48
SECTION 3.4 Temporary Securities.............................................. 50
SECTION 3.5 Registration, Registration of Transfer and Exchange............... 50
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.................. 52
SECTION 3.7 Payment of Interest; Rights Preserved............................. 53
SECTION 3.8 Persons Deemed Owners............................................. 54
SECTION 3.9 Cancellation...................................................... 55
SECTION 3.10 Computation of Interest........................................... 55
SECTION 3.11 CUSIP and CINS Numbers............................................ 55
SECTION 3.12 Deposits of Monies................................................ 56
SECTION 3.13 Book-Entry Provisions for Global Securities....................... 56
SECTION 3.14 Special Transfer Provisions....................................... 57
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Page
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Satisfaction and Discharge
SECTION 4.1 Satisfaction and Discharge of Indenture................. 61
SECTION 4.2 Application of Trust Money.............................. 63
ARTICLE V
Remedies
SECTION 5.1 Events of Default....................................... 63
SECTION 5.2 Acceleration of Maturity; Rescission
and Annulment........................................... 66
SECTION 5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee.............................. 67
SECTION 5.4 Trustee May File Proofs of Claim........................ 69
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities................................ 69
SECTION 5.6 Application of Money Collected.......................... 70
SECTION 5.7 Limitation on Suits..................................... 70
SECTION 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest................. 71
SECTION 5.9 Restoration of Rights and Remedies...................... 72
SECTION 5.10 Rights and Remedies Cumulative.......................... 72
SECTION 5.11 Delay or Omission Not Waiver............................ 72
SECTION 5.12 Control by Holders...................................... 73
SECTION 5.13 Waiver of Past Defaults................................. 73
SECTION 5.14 Undertaking for Costs................................... 73
SECTION 5.15 Waiver of Stay or Extension Laws........................ 74
ARTICLE VI
The Trustee
Note: This table of Contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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SECTION 6.1 Certain Duties and Responsibilities..................... 75
SECTION 6.2 Notice of Defaults...................................... 76
SECTION 6.3 Certain Rights of Trustee............................... 76
SECTION 6.4 Not Responsible for Recitals or
Issuance of Securities.................................. 78
SECTION 6.5 May Hold Securities..................................... 78
SECTION 6.6 Money Held in Trust..................................... 79
SECTION 6.7 Compensation and Reimbursement.......................... 79
SECTION 6.8 Conflicting Interests................................... 80
SECTION 6.9 Corporate Trustee Required;
Eligibility............................................. 80
SECTION 6.10 Resignation and Removal; Appointment of
Successor............................................... 81
SECTION 6.11 Acceptance of Appointment by Successor.................. 83
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business.................................. 83
SECTION 6.13 Preferential Collection of Claims
Against the Company or a Guarantor...................... 84
SECTION 6.14 Appointment of Authenticating Agent..................... 84
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 7.1 Company to Furnish Trustee Names and
Addresses of Holders.................................... 86
SECTION 7.2 Preservation of Information;
Communications to Holders............................... 87
SECTION 7.3 Reports by Trustee...................................... 87
SECTION 7.4 Reports by Company...................................... 87
ARTICLE VIII
Note: This table of Contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.1 Company May Consolidate, Etc. Only on
Certain Terms........................................... 88
SECTION 8.2 Successor Substituted................................... 90
ARTICLE IX
Amendments; Waivers; Supplemental Indentures
SECTION 9.1 Amendments, Waivers and Supplemental
Indentures Without Consent of Holders................... 91
SECTION 9.2 Modifications, Amendments and Supplemental
Indentures with Consent of Holders...................... 92
SECTION 9.3 Execution of Supplemental Indentures.................... 93
SECTION 9.4 Effect of Supplemental Indentures....................... 94
SECTION 9.5 Conformity with Trust Indenture Act..................... 94
SECTION 9.6 Reference in Securities to Supplemental
Indentures.............................................. 94
SECTION 9.7 Waiver of Certain Covenants............................. 94
SECTION 9.8 No Liability for Certain Persons........................ 95
ARTICLE X
Covenants
SECTION 10.1 Payment of Principal, Premium and
Interest................................................ 95
SECTION 10.2 Maintenance of Office or Agency......................... 96
SECTION 10.3 Money for Security Payments to be Held
in Trust................................................ 96
SECTION 10.4 Existence; Activities................................... 98
Note: This table of Contents shall not, for any purpose, be deemed to be
a part of the Indenture.
ix
Page
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SECTION 10.5 Maintenance of Properties.............................. 98
SECTION 10.6 Payment of Taxes and Other Claims...................... 99
SECTION 10.7 Maintenance of Insurance............................... 99
SECTION 10.8 Limitation on Indebtedness............................. 99
SECTION 10.9 Limitation on Restricted Payments...................... 100
SECTION 10.10 Limitation on Preferred Stock of
Restricted Subsidiaries................................ 105
SECTION 10.11 Limitation on Transactions with
Affiliates............................................. 105
SECTION 10.12 Limitation on Liens.................................... 107
SECTION 10.13 Change of Control...................................... 107
SECTION 10.14 Disposition of Proceeds of
Asset Sales............................................ 108
SECTION 10.15 Limitation on Dividends and Other
Payment Restrictions Affecting Restricted
Subsidiaries........................................... 111
SECTION 10.16 Limitation on Issuance of Subordinated
Indebtedness........................................... 113
SECTION 10.17 Additional Subsidiary Guarantees....................... 113
SECTION 10.18 Limitations on Designation of
Unrestricted Subsidiaries.............................. 114
SECTION 10.19 Provision of Financial Information..................... 116
SECTION 10.20 Statement by Officers as to Default;
Compliance Certificates................................ 116
ARTICLE XI
Redemption of Securities
SECTION 11.1 Right of Redemption.................................... 117
SECTION 11.2 Applicability of Article............................... 117
SECTION 11.3 Election to Redeem; Notice to
Trustee................................................ 117
Note: This table of Contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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SECTION 11.4 Selection by Trustee of Securities to
Be Redeemed............................................ 118
SECTION 11.5 Notice of Redemption................................... 118
SECTION 11.6 Deposit of Redemption Price............................ 119
SECTION 11.7 Securities Payable on Redemption Date.................. 120
SECTION 11.8 Securities Redeemed in Part............................ 120
ARTICLE XII
Defeasance and Covenant Defeasance
SECTION 12.1 Company's Option to Effect Defeasance
or Covenant Defeasance................................. 121
SECTION 12.2 Defeasance and Discharge............................... 121
SECTION 12.3 Covenant Defeasance.................................... 122
SECTION 12.4 Conditions to Defeasance or Covenant
Defeasance............................................. 122
SECTION 12.5 Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions............................... 125
SECTION 12.6 Reinstatement.......................................... 126
ARTICLE XIII
Guaranty
SECTION 13.1 Guaranty............................................... 127
SECTION 13.2 Limitation on Liability................................ 130
SECTION 13.3 Execution and Delivery of Guarantees................... 130
SECTION 13.4 Guarantors May Consolidate, Etc., on
Certain Terms.......................................... 131
SECTION 13.5 Release of Guarantors.................................. 131
SECTION 13.6 Successors and Assigns................................. 132
Note: This table of Contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Page
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SECTION 13.7 No Waiver, etc......................................... 132
SECTION 13.8 Modification, etc...................................... 132
SECTION 13.9 Subordination of Guarantees............................ 133
ARTICLE XIV
Subordination
SECTION 14.1 Securities Subordinate to Senior
Indebtedness and Senior to Subordinated
Indebtedness........................................... 133
SECTION 14.2 Payment Over of Proceeds Upon
Dissolution, Etc....................................... 133
SECTION 14.3 No Payment When Designated Senior
Indebtedness in Default................................ 134
SECTION 14.4 Subrogation to Rights of Holders of
Senior Indebtedness.................................... 136
SECTION 14.5 Provisions Solely to Define Relative
Rights................................................. 136
SECTION 14.6 Trustee to Effectuate Subordination.................... 137
SECTION 14.7 No Waiver of Subordination Provisions.................. 137
SECTION 14.8 Notice to Trustee...................................... 138
SECTION 14.9 Reliance on Judicial Order or
Certificate of Liquidating Agent....................... 139
SECTION 14.10 Trustee Not Fiduciary for Holders of
Senior Indebtedness.................................... 139
SECTION 14.11 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's
Rights................................................. 139
SECTION 14.12 Article Applicable to Paying Agents.................... 140
Note: This table of Contents shall not, for any purpose, be deemed to be
a part of the Indenture.
xii
Page
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Schedule A The Guarantors
Exhibit A-1 Form of Series A Security
Exhibit A-2 Form of Series B Security
Exhibit B Global Securities Legend
Exhibit C Transfer Letter
Exhibit D Form of Notation on Security Relating
to Guaranty
Note: This table of Contents shall not, for any purpose, be deemed to be
a part of the Indenture.
xiii
INDENTURE, dated as of December 15, 1998, between United Rentals
(North America), Inc., a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its principal
office at Four Greenwich Office Park, Greenwich, Connecticut 06830, the
Subsidiaries of the Company named in Schedule A (herein called the "Guarantors")
----------
and State Street Bank and Trust Company, a Massachusetts chartered trust company
having its principal office at Two International Place, Boston, MA 02110, as
trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 9 1/4%
Senior Subordinated Notes due 2009 (the "Securities") of substantially the tenor
and amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
Each Guarantor desires to make the Guaranty provided herein and has
duly authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company, authenticated and delivered hereunder and duly issued by the Company,
and each Guaranty, when executed and delivered hereunder by each Guarantor, the
valid obligations of the Company and each Guarantor, and to make this Indenture
a valid agreement of the Company and each Guarantor, in accordance with their
and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined herein) thereof, it is mutually covenanted
and
agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.1 Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (whether or not such is
indicated herein);
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or Section, as the case may
be, of this Indenture;
(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to
2
any particular Article, Section or other sub-division; and
(6) each reference herein to a rule or form of the Commission shall
mean such rule or form and any rule or form successor thereto, in each case
as amended from time to time.
Whenever this Indenture requires that a particular ratio or amount be
calculated with respect to a specified period after giving effect to certain
transactions or events on a pro forma basis, such calculation shall be made as
if the transactions or events occurred on the first day of such period, unless
otherwise specified.
"8.80% Notes" means the $205 million aggregate principal amount of
-----------
8.80% Senior Subordinated Notes due 2008 issued by the Company under the
indenture, dated as of August 12, 1998, among the Company, as issuer, its United
States subsidiaries, as guarantors, and the Trustee.
"9 1/2% Notes" means the $200 million aggregate principal amount
------------
of 9 1/2% Senior Subordinated Notes due 2008 issued by the Company under the
indenture, dated as of May 22, 1998, among the Company, as issuer, its United
States subsidiaries, as guarantors, and the Trustee.
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
---------------------
connection with an Asset Acquisition from such Person or (b) existing at the
time such Person becomes a Subsidiary of any other Person and not incurred in
connection with, or in contemplation of, such Asset Acquisition or such Person
becoming a Subsidiary.
3
"Act," when used with respect to any Holder, has the meaning specified
---
in Section 1.4.
"Affiliate" means, with respect to any specified Person, (i) any other
---------
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person, (ii) any other Person that
owns, directly or indirectly, 10% or more of such specified Person's Capital
Stock, (iii) any officer or director of (A) any such specified Person, (B) any
Subsidiary of such specified Person or (C) any Person described in clauses (i)
or (ii) above.
"Asset Acquisition" means (a) an Investment by the Company or any
-----------------
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (b) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person which
constitute all or substantially all of the assets of such Person, any division
or line of business of such Person or any other properties or assets of such
Person other than in the ordinary course of business.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
----------
other disposition by the Company or any Restricted Subsidiary of the Company to
any Person other than the Company or a Restricted Subsidiary of the Company, of
(a) any Capital Stock of any Restricted Subsidiary of the Company; (b) all or
substantially all of the properties and assets of any division or line of
business of the Company or any Restricted Subsidiary of the Company; or (c) any
other properties or assets of the Company or any Restricted Subsidiary of the
Company, other than (i) sales of obsolete, damaged or used equipment or other
equipment
4
or inventory sales in the ordinary course of business, (ii) sales of assets in
one or a series of related transactions for an aggregate consideration of less
than $1,000,000, (iii) sales of Permitted Investments, and (iv) sales of
accounts receivable for financing purposes. For the purposes of this definition,
the term "Asset Sale" shall not include any sale, issuance, conveyance,
transfer, lease or other disposition of properties or assets that is governed by
the provisions of Article VIII.
"Asset Sale Offer" has the meaning specified in Section 10.14.
----------------
"Asset Sale Offer Price" has the meaning specified in Section 10.14.
----------------------
"Asset Sale Purchase Date" has the meaning specified in Section 10.14.
------------------------
"Authenticating Agent" means any Person authorized by the Trustee
--------------------
pursuant to Section 6.14 hereof to act on behalf of the Trustee to authenticate
Securities.
"Average Life to Stated Maturity" means, with respect to any
-------------------------------
Indebtedness, as at any date of determination, the quotient obtained by dividing
(i) the sum of the products of (a) the number of years from such date to the
date or dates of each successive scheduled principal payment (including, without
limitation, any sinking fund requirements) of such Indebtedness and (b) the
amount of each such principal payment by (ii) the sum of all such principal
payments.
"Board of Directors" means the board of directors of a company or its
------------------
equivalent, including managers of a limited liability company, general partners
of a partnership or trustees of a business trust, or any duly authorized
committee thereof.
5
"Board Resolution" means a copy of a resolution certified by the
----------------
Secretary or an Assistant Secretary of a company to have been duly adopted by
the Board of Directors of such company and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
------------
Friday which is not a day on which banking institutions in the Borough of
Manhattan, The City of New York or Hartford, Connecticut are authorized or
obligated by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
-------------
interests, participations, rights in or other equivalents (however designated)
of such Person's capital stock or equity participations, and any rights (other
than debt securities convertible into capital stock), warrants or options
exchangeable for or convertible into such capital stock and, including, without
limitation, with respect to partnerships, limited liability companies or
business trusts, ownership interests (whether general or limited) and any other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, such partnerships,
limited liability companies or business trusts.
"Capitalized Lease Obligation" means any obligation under a lease of
---------------------------
(or other agreement conveying the right to use) any property (whether real,
personal or mixed) that is required to be classified and accounted for as a
capital lease obligation under GAAP, and, for the purpose of this Indenture, the
amount of such obligation at any date shall be the capitalized amount thereof at
such date, determined in accordance with GAAP.
6
"Cash Equivalents" means, at any time, (a) any evidence of
----------------
Indebtedness, maturing not more than one year after such time, issued or
guaranteed by the United States Government or any agency thereof, (b) commercial
paper, maturing not more than one year from the date of issue, or corporate
demand notes, in each case rated at least A-1 by S&P or P-1 by Moody's, (c) any
certificate of deposit (or time deposits represented by such certificates of
deposit) or bankers' acceptance, maturing not more than one year after such
time, or overnight Federal Funds transactions that are issued or sold by a
commercial banking institution that is a member of the Federal Reserve System
and has a combined capital and surplus and undivided profits of not less than
$500,000,000, (d) any repurchase agreement entered into with any commercial
banking institution of the stature referred to in clause (c) which (i) is
secured by a fully perfected security interest in any obligation of the type
described in any of clauses (a) through (c) and (ii) has a market value at the
time such repurchase agreement is entered into of not less than 100% of the
repurchase obligation of such commercial banking institution thereunder, and (e)
investments in short term asset management accounts managed by any bank party to
the Credit Facility or the Term Loan which are invested in indebtedness of any
state or municipality of the United States or of the District of Columbia and
which are rated under one of the two highest ratings then obtainable from S&P or
by Moody's or investments of the types described in clauses (a) through (d)
above, and (f) investments in funds investing primarily in investments of the
types described in clauses (a) through (e) above.
"Cedel" means Cedel Bank, societe anonyme.
----- ------- -------
"Change of Control" means the occurrence of any of the following
-----------------
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of
7
the Exchange Act), excluding Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a person shall be deemed to have "beneficial ownership" of all
securities that such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 50% of the total Voting Stock of the Company or
Holdings; provided, however, that a "Change of Control" shall not be deemed to
-------- -------
have occurred under this subclause (a) unless the Permitted Holders 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 or
Holdings; (b) the Company or Holdings consolidates with, or merges with or into,
another Person or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any Person, or any Person
consolidates with, or merges with or into, the Company (or Holdings), in any
such event pursuant to a transaction in which the outstanding Voting Stock of
the Company or Holdings is converted into or exchanged for cash, securities or
other property, other than any such transaction where (i) the outstanding Voting
Stock of the Company or Holdings is converted into or exchanged for Voting Stock
(other than Redeemable Capital Stock) of the surviving or transferee corporation
and (ii) immediately after such transaction no "person" or "group" (as such
terms are used in Section 13(d) and 14(d) of the Exchange Act), excluding
Permitted Holders, is the "beneficial owner" (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 securities that such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 50% of the total Voting Stock of
the surviving or transferee corporation; (c) during any consecutive two-year
period, individuals who at the beginning of such period
8
constituted the Board of Directors of the Company or Holdings (together with any
new directors whose election by such Board of Directors or whose nomination for
election by the stockholders of the Company or Holdings 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 or Holdings then in office; or (d) the Company
is liquidated or dissolved or adopts a plan of liquidation.
"Change of Control Offer" has the meaning specified in Section 10.13.
-----------------------
"Change of Control Purchase Date" has the meaning specified in Section
-------------------------------
10.13.
"Change of Control Purchase Price" has the meaning specified in
--------------------------------
Section 10.13.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, and the rules and regulations thereunder.
"Commission" means the Securities and Exchange Commission, as from
----------
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means the common stock, par value $.01 per share, of
------------
Holdings.
"Company" means the Person named as the "Company" in the first
-------
paragraph of this instrument until a
9
successor Person shall have become such pursuant to the applicable provisions of
this Indenture and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
--------------- -------------
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its Chief Financial Officer, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee or Paying Agent, as
applicable.
"Consolidated Cash Flow Available for Fixed Charges" means, with
--------------------------------------------------
respect to any Person for any period, (i) the sum of, without duplication, the
amounts for such period, taken as a single accounting period, of (a)
Consolidated Net Income, (b) Consolidated Non-cash Charges, (c) Consolidated
Interest Expense, (d) Consolidated Income Tax Expense (other than income tax
expense (either positive or negative) attributable to extraordinary gains or
losses), (e) one-third of Consolidated Rental Payments, and (f) if any Asset
Sale or Asset Acquisition shall have occurred since the first day of any four
quarter period for which "Consolidated Cash Flow Available for Fixed Charges" is
being calculated (including to the date of calculation) (A) the cost of any
compensation, remuneration or other benefit paid or provided to any employee,
consultant, Affiliate or equity owner of the entity involved in any such Asset
Acquisition to the extent such costs are eliminated or reduced (or public
announcement has been made of the intent to eliminate or reduce such costs)
prior to the date of such calculation and not replaced and (B) the amount of any
reduction in general, administrative or overhead costs of the entity involved in
any such Asset Acquisition or Asset Sale, to the extent such amounts under
clauses (A) and (B) would be permitted to be eliminated in a pro forma income
statement prepared in accordance with Rule 11-02 of Regulation S-X, less (ii)(x)
10
non-cash items increasing Consolidated Net Income and (y) all cash payments
during such period relating to non-cash charges that were added back in
determining Consolidated Cash Flow Available for Fixed Charges in the most
recent Four Quarter Period (as defined in the definition of "Consolidated Fixed
Charge Coverage Ratio").
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
----------------------------------------
Person, the ratio of the aggregate amount of Consolidated Cash Flow Available
for Fixed Charges of such Person for the four full fiscal quarters, treated as
one period, for which financial information in respect thereof is available
immediately preceding the date of the transaction (the "Transaction Date")
giving rise to the need to calculate the Consolidated Fixed Charge Coverage
Ratio (such four full fiscal quarter period being referred to herein as the
"Four Quarter Period") to the aggregate amount of Consolidated Fixed Charges of
such Person for the Four Quarter Period. In calculating "Consolidated Fixed
Charges" for purposes of determining the denominator (but not the numerator) of
this "Consolidated Fixed Charge Coverage Ratio," (i) interest on outstanding
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; and (ii) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Four Quarter Period. If such Person or any of its Restricted Subsidiaries
directly or indirectly guarantees Indebtedness of a third Person, the above
clause shall give effect to the incurrence of such guaranteed Indebtedness
11
as if such Person or such Subsidiary had directly incurred or otherwise assumed
such guaranteed Indebtedness.
"Consolidated Fixed Charges" means, with respect to any Person for any
--------------------------
period, the sum of, without duplication, the amounts for such period of (i)
Consolidated Interest Expense, (ii) the aggregate amount of dividends and other
distributions paid or accrued during such period in respect of Redeemable
Capital Stock of such Person and its Restricted Subsidiaries on a consolidated
basis and (iii) one-third of Consolidated Rental Payments.
"Consolidated Income Tax Expense" means, with respect to any Person
-------------------------------
for any period, the provision for federal, state, local and foreign income taxes
of such Person and its Restricted Subsidiaries for such period as determined on
a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any Person for
-----------------------------
any period, without duplication, the sum of (i) the interest expense of such
Person and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, including, without limitation, (a)
any amortization of debt discount, (b) the net cost under Interest Rate
Protection Obligations (including any amortization of discounts), (c) the
interest portion of any deferred payment obligation, (d) all commissions,
discounts and other fees and charges owed with respect to letters of credit,
bankers' acceptance financing or similar facilities and (e) all accrued interest
and (ii) the interest component of Capitalized Lease Obligations paid, accrued
and/or scheduled to be paid or accrued by such Person and its Restricted
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP.
12
"Consolidated Net Income" means, with respect to any Person, for any
-----------------------
period, the consolidated net income (or loss) of such Person and its Restricted
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such net income, by excluding, without
duplication, (i) all extraordinary gains or losses (net of fees and expenses
relating to the transaction giving rise thereto), (ii) the portion of net income
of such Person and its Restricted Subsidiaries allocable to minority interests
in unconsolidated Persons or to Investments in Unrestricted Subsidiaries to the
extent that cash dividends or distributions have not actually been received by
such Person or one of its Restricted Subsidiaries, (iii) net income (or loss) of
any Person combined with such Person or one of its Restricted Subsidiaries on a
"pooling of interests" basis attributable to any period prior to the date of
combination, (iv) gains or losses in respect of any Asset Sales by such Person
or one of its Restricted Subsidiaries (net of fees and expenses relating to the
transaction giving rise thereto), on an after-tax basis, (v) the net income of
any Restricted Subsidiary of such Person to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of that income
is not at the time permitted, directly or indirectly, by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulations applicable to that Restricted Subsidiary or its
stockholders and (vi) any gain or loss realized as a result of the cumulative
effect of a change in accounting principles.
"Consolidated Non-cash Charges" means, with respect to any Person for
-----------------------------
any period, the aggregate depreciation, amortization (including amortization of
goodwill and other intangibles) and other non-cash expenses of such Person and
its Restricted Subsidiaries reducing Consolidated Net Income of such Person and
its
13
Restricted Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP (excluding any such charges constituting an
extraordinary item or loss).
"Consolidated Rental Payments" of any Person means, for any period,
----------------------------
the aggregate rental obligations of such Person and its Restricted Subsidiaries
(not including taxes, insurance, maintenance and similar expenses that the
lessee is obligated to pay under the terms of the relevant leases), determined
on a consolidated basis in accordance with GAAP, payable in respect of such
period (net of income from subleases thereof, not including taxes, insurance,
maintenance and similar expenses that the sublessee is obligated to pay under
the terms of such sublease), whether or not such obligations are reflected as
liabilities or commitments on a consolidated balance sheet of such Person and
its Restricted Subsidiaries or in the notes thereto, excluding, however, in any
--------- -------
event, (i) that portion of Consolidated Interest Expense of such Person
representing payments by such Person or any of its Restricted Subsidiaries in
respect of Capitalized Lease Obligations (net of payments to such Person or any
of its Restricted Subsidiaries under subleases qualifying as capitalized lease
subleases to the extent that such payments would be deducted in determining
Consolidated Interest Expense) and (ii) the aggregate amount of amortization of
obligations of such Person and its Restricted Subsidiaries in respect of such
Capitalized Lease Obligations for such period (net of payments to such Person or
any of its Restricted Subsidiaries and subleases qualifying as capitalized lease
subleases to the extent that such payments could be deducted in determining such
amortization amount).
"control" when used with respect to any specified Person means the
-------
power to direct the management and policies of such Person, directly or
indirectly, whether
14
through ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Corporate Trust Office" means the office of the Trustee at which at
----------------------
any particular time its corporate trust business shall be administered, which
address as of the date of this Indenture is located at Goodwin Square, 23rd
Floor, 225 Asylum Street, Hartford, CT 06103, Attention: Corporate Trust,
Administration.
"corporation" means (except in the definition of "Subsidiary") a
-----------
corporation, association, company, joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 12.3.
-------------------
"Credit Facility" means the Credit Agreement dated as of September 29,
---------------
1998, among the Company, Holdings, United Rentals of Canada, Inc., various
financial institutions, Bank of America Canada, as Canadian Agent, and Bank of
America National Trust and Savings Association, as U.S. Agent, including any
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended (including any amendment and
restatement thereof), modified, renewed, refunded, replaced or refinanced from
time to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder or adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agents, lender or group of lenders.
15
"Default" means any event that is, or after notice or passage of time,
-------
or both, would be, an Event of Default.
"Defeasance" has the meaning specified in Section 12.2.
----------
"Depositary" means The Depository Trust Company, or its successor.
----------
"Designated Guarantor Senior Indebtedness" means, with respect to a
----------------------------------------
Guarantor, amounts owing by such Guarantor under the Credit Facility or the Term
Loan and guarantees by such Guarantor of Designated Senior Indebtedness.
"Designated Senior Indebtedness" means (i) all Indebtedness under the
------------------------------
Credit Facility and the Term Loan and (ii) any other issue of Senior
Indebtedness which (a) at the time of the determination is equal to or greater
than $25,000,000 in aggregate principal amount and (b) is specifically
designated by the Company in the instrument evidencing such Senior Indebtedness
as "Designated Senior Indebtedness."
"Disinterested Member of the Board of Directors of the Company" means,
-------------------------------------------------------------
with respect to any transaction or series of transactions, a member of the Board
of Directors of the Company other than a member who has any material direct or
indirect financial interest in or with respect to such transaction or series of
transactions or who is an Affiliate, officer, director or an employee of any
Person (other than the Company or Holdings) who has any direct or indirect
financial interest in or with respect to such transaction or series of
transactions.
"Distribution Compliance Period" has the meaning set forth in Section
------------------------------
3.14.
16
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
---------
Office, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 5.1.
----------------
"Excess Proceeds" has the meaning specified in Section 10.14.
---------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Exchange Securities" has the meaning specified in the form of the
-------------------
Security in Exhibit A.
"Expiration Date" shall have the meaning set forth in the definition
---------------
of "Offer to Purchase."
"Fair Market Value" means, with respect to any asset, the price which
-----------------
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under pressure
or compulsion to complete the transaction. Fair Market Value shall be
determined by the Board of Directors of the Company in good faith.
"Federal Bankruptcy Code" means Title 11, U.S. Code.
-----------------------
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States of America, which are applicable at the date of
the Indenture.
17
"Global Securities" means one or more Regulation S Global Securities
-----------------
and 144A Global Securities.
"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 and (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 all or any
part of such obligation, including, without limiting the foregoing, the payment
of amounts available to be drawn down under letters of credit of another Person.
The term "guarantee" used as a verb has a corresponding meaning. The term
"guarantor" shall mean any Person providing a guarantee of any obligation.
"Guarantor Senior Indebtedness" of a Guarantor means the principal of,
-----------------------------
premium, if any, and interest on any Indebtedness of such Guarantor, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Notes or such Guarantor's Guaranty. Without limiting the generality of the
foregoing, (x) "Guarantor Senior Indebtedness" shall include the principal of,
premium, if any, and interest on all obligations of every nature of such
Guarantor from time to time owed to the lenders under the Credit Facility and
the Term Loan, including, without limitation, principal of and interest on, and
all fees, indemnities and expenses payable under the Credit Facility and the
Term Loan, and (y) in the case of Designated Senior Indebtedness, "Guarantor
Senior Indebtedness" shall include interest accruing thereon subsequent to the
18
occurrence of any Event of Default specified in clause (7) or (8) of Section 5.1
relating to such Guarantor, whether or not the claim for such interest is
allowed under any applicable bankruptcy laws. Notwithstanding the foregoing,
"Guarantor Senior Indebtedness" shall not include (a) Indebtedness evidenced by
the Notes or the Guarantees, (b) Indebtedness that is expressly subordinate or
junior in right of payment to any Indebtedness of such Guarantor, including the
Guarantor's Guarantee of the 9 1/2% Notes and the 8.80% Notes, (c) Indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of Title 11, United States Code, is without recourse to such Guarantor, (d)
Indebtedness which is represented by Redeemable Capital Stock, (e) Indebtedness
for goods, materials or services purchased in the ordinary course of business or
Indebtedness consisting of trade payables or other current liabilities (other
than any current liabilities owing under the Credit Facility, or the current
portion of any long-term Indebtedness (including the Term Loan) which would
constitute Guarantor Senior Indebtedness but for the operation of this clause
(e)), (f) Indebtedness of or amounts owed by such Guarantor for compensation to
employees or for services rendered to such Guarantor, (g) any liability for
federal, state, local or other taxes owed or owing by such Guarantor, (h)
Indebtedness of such Guarantor to the Company or a Subsidiary of the Company or
any other Affiliate of the Company or any of such Affiliate's Subsidiaries, (i)
that portion of any Indebtedness which is incurred by such Guarantor in
violation of this Indenture and (j) amounts owing under leases.
"Guarantor Subordinated Indebtedness" means, with respect to a
-----------------------------------
Guarantor, indebtedness and other obligations of such Guarantor which are
expressly subordinated in right of payment to such Guarantor's Guaranty.
19
"Guaranty" means each guaranty of the Securities contained in Article
--------
XIII given by each Guarantor.
"Guaranty Obligations" means, with respect to each Guarantor, the
--------------------
obligations of such Guarantor under Article XIII.
"Holder" means a Person in whose name a Security is registered in the
------
Security Register.
"Holdings" means United Rentals, Inc., a corporation duly organized
--------
and existing under the laws of the State of Delaware.
"Indebtedness" means, with respect to any Person, without duplication,
------------
(a) all liabilities of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities incurred in the ordinary course of business, but
including, without limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit, banker's acceptance or other
similar credit transaction, (b) all obligations of such Person evidenced by
bonds, notes, debentures or other similar instruments, (c) all indebtedness
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even if the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), but excluding trade
accounts payable arising in the ordinary course of business, (d) all Capitalized
Lease Obligations of such Person, (e) all Indebtedness referred to in the
preceding clauses of other Persons and all dividends of other Persons, the
payment of which is secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon
property (including, without limitation,
20
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness (the amount of
such obligation being deemed to be the lesser of the value of such property or
asset or the amount of the obligation so secured), (f) all guarantees of
Indebtedness referred to in this definition by such Person, (g) all Redeemable
Capital Stock of such Person valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued dividends, (h) all
obligations under or in respect of Interest Rate Protection Obligations of such
Person, and (i) any amendment, supplement, modification, deferral, renewal,
extension, refinancing or refunding of any liability of the types referred to in
clauses (a) through (h) above; provided, however, that Indebtedness shall not
-------- -------
include (i) any holdback or escrow of the purchase price of property, services,
businesses or assets or (ii) any contingent payment obligations incurred in
connection with the acquisition of assets or business, which are contingent on
the performance of the assets or businesses so acquired. For purposes hereof,
the "maximum fixed repurchase price" of any Redeemable Capital Stock which does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Redeemable Capital Stock as if such Redeemable Capital Stock were
purchased on any date on which Indebtedness shall be required to be determined
pursuant hereto, and if such price is based upon, or measured by, the fair
market value of such Redeemable Capital Stock, such fair market value shall be
approved in good faith by the Board of Directors of the issuer of such
Redeemable Capital Stock. In the case of Indebtedness of other Persons, the
payment of which is secured by a Lien on property owned by a Person as referred
to in clause (e) above, the amount of the Indebtedness of such Person
attributable to such Lien at any date shall be the lesser of the Fair Market
Value at such date of any asset subject to such Lien and the amount of the
Indebtedness secured.
21
"Indenture" means this instrument as originally executed or as it may
---------
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Purchaser" means Goldman, Sachs & Co.
-----------------
"Initial Securities" means the 93% Senior Subordinated Notes due 2009,
------------------
Series A, of the Company.
"Interest Payment Date" means the Stated Maturity of an installment of
---------------------
interest on the Securities.
"Interest Rate Protection Agreement" means, with respect to any
----------------------------------
Person, 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
and shall include, without limitation, interest rate swaps, caps, floors,
collars and similar agreements.
"Interest Rate Protection Obligations" means the obligations of any
------------------------------------
Person pursuant to any Interest Rate Protection Agreements.
"Investment" means, with respect to any Person, any direct or indirect
----------
loan or other extension of credit (including, without limitation, a guarantee)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for
22
property or services for the account or use of others), or any purchase or
acquisition by such Person of any Capital Stock, bonds, notes, debentures or
other securities or evidences of Indebtedness issued by, any other Person.
"Issue Date" means the original date of issuance of the Initial
----------
Securities.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
----
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance upon or with respect to any property of any
kind. A Person shall be deemed to own subject to a Lien any property which such
Person has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention
agreement.
"Maturity Date" means January 15, 2009.
------------
"Moody's" means Moody's Investors Service, Inc. and its successors.
-------
"Net Cash Proceeds" means, with respect to any Asset Sale, the
-----------------
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary of the Company)
net of (i) brokerage commissions and other fees and expenses (including, without
limitation, fees and expenses of legal counsel and investment bankers, recording
fees, transfer fees and appraisers' fees) related to such Asset Sale, (ii)
provisions for all taxes payable as a result of such Asset Sale, (iii) amounts
required to be paid to any Person (other than the Company or any Restricted
Subsidiary of the Company) owning a beneficial
23
interest in the assets subject to the Asset Sale, (iv) payments made to retire
Indebtedness where payment of such Indebtedness is secured by the assets or
properties the subject of such Asset Sale, and (v) appropriate amounts to be
provided by the Company or any Restricted Subsidiary of the Company, as the case
may be, as a reserve required in accordance with GAAP against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary of the Company, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as reflected in
an Officer's Certificate delivered to the Trustee.
"Non-U.S. Person" means a Person that is not a U.S. Person as such
---------------
term is defined in Regulation S.
"Notice of Default" means a written notice of the kind specified in
-----------------
Section 5.2.
"Offer" means a Change of Control Offer or an Asset Sale Offer.
-----
"Offer to Purchase" means an Offer sent by or on behalf of the Company
-----------------
by first-class mail, postage prepaid, to each Holder of Securities at its
address appearing in the register for the Securities on the date of the Offer
offering to purchase up to the principal amount of Securities specified in such
Offer at the purchase price specified in such Offer (as determined pursuant to
this Indenture). Unless otherwise provided in Section 10.13 or 10.14 or
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase, which shall be not less than
---------------
20 Business Days nor more than 60 days after the date of such Offer (or such
later date as
24
may be necessary for the Company to comply with the Exchange Act), and a
settlement date (the "Purchase Date") for purchase of Securities to occur
-------------
no later than five Business Days after the Expiration Date. The Company shall
notify the Trustee at least 15 Business Days (or such shorter period as is
acceptable to the Trustee) prior to the mailing of the Offer of the Company's
obligation to make an Offer to Purchase, and the Offer shall be mailed by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company. The Offer shall contain all the information required by
applicable law to be included therein. The Offer shall contain all instructions
and materials necessary to enable such Holders to tender Securities pursuant to
the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price"); and the
--------------
amount of accrued and unpaid interest to be paid;
(4) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount;
25
(5) the place or places where Securities are to be surrendered
for tender pursuant to the Offer to Purchase;
(6) that interest on any Security not tendered or tendered but
not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(7) that on the Purchase Date the Purchase Price will become due
and payable upon each Security being accepted for payment pursuant to
the Offer to Purchase and that interest thereon shall cease to accrue
on and after the Purchase Date;
(8) that each Holder electing to tender all or any portion of a
Security pursuant to the Offer to Purchase will be required to
surrender such Security at the place or places specified in the Offer
prior to the close of business on the Expiration Date (such Security
being, if the Company or the Trustee so requires, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by the Holder thereof or
his attorney duly authorized in writing);
(9) that Holders will be entitled to withdraw all or any portion
of Securities tendered if the Company (or its Paying Agent) receives,
not later than the close of business on the fifth Business Day next
preceding the Expiration Date, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Security the Holder tendered, the certificate number of the Security
the Holder tendered and a statement
26
that such Holder is withdrawing all or a portion of his tender;
(10) that (a) if Securities purchasable at an aggregate Purchase
Price less than or equal to the Purchase Amount are duly tendered and
not withdrawn pursuant to the Offer to Purchase, the Company shall
purchase all such Securities and (b) if Securities purchasable at an
aggregate Purchase Price in excess of the Purchase Amount are tendered
and not withdrawn pursuant to the Offer to Purchase, the Company shall
purchase Securities on a pro rata basis based on the Purchase Price
--------
therefor or such other method as the Trustee shall deem fair and
appropriate (subject in each case to applicable rules of the
Depositary and any securities exchange upon which the Securities may
then be listed), with such adjustments as may be deemed appropriate so
that only Securities in denominations of $1,000 principal face amount
or integral multiples thereof shall be purchased; notwithstanding the
foregoing, if the Company is required to commence an Asset Sale Offer
at any time when securities of the Company ranking pari passu in right
of payment with the Securities are outstanding and the terms of such
securities provide that a similar offer must be made with respect to
such other securities, then the Asset Sale Offer for the Securities
shall be made concurrently with such other offers and securities of
each issue will be accepted on a pro rata basis in proportion to the
aggregate principal amount of securities of each issue which the
holders thereof elect to have purchased; and
27
(11) that in the case of a Holder whose Security is purchased
only in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in an aggregate principal
amount equal to and in exchange for the unpurchased portion of the
Security so tendered.
An Offer to Purchase shall be governed by and effected in accordance with the
provisions of this Indenture pertaining to the type of Offer to which it
relates.
"Offering Circular" means the Offering Circular dated December 8, 1998
-----------------
pursuant to which the Securities were offered, and any supplement thereto.
"Officer's Certificate" means a certificate signed by the Chairman of
---------------------
the Board, the Chief Executive Officer, the President or a Vice President, the
Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee. One of
the officers signing an Officer's Certificate given pursuant to Section 10.20
shall be the principal executive, financial or accounting officer of the
Company.
"144A Global Security" means a permanent global security in registered
--------------------
form representing the aggregate principal amount of Securities sold in reliance
on Rule 144A under the Securities Act.
"Opinion of Counsel" means a written opinion of counsel, who may be
------------------
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
28
"Outstanding," when used with respect to Securities, means, as of the
-----------
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
-------- ----
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) Securities as to which Defeasance has been effected pursuant to
Section 12.2;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given, made or taken any
request, demand,
29
authorization, direction, notice, consent, waiver or other action hereunder as
of any date, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding (it being understood that
Securities to be acquired by the Company pursuant to an Offer or other offer to
purchase shall not be deemed to be owned by the Company until legal title to
such Securities passes to the Company), except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Holder" means (i) Holdings and (ii) Bradley S. Jacobs, John
----------------
N. Milne, Michael J. Nolan and their respective Affiliates, and trusts
established for the benefit of a Permitted Holder or members of his immediate
family.
"Permitted Indebtedness" means, without duplication:
----------------------
(a) Indebtedness of the Company and the Guarantors evidenced by up to
$300,000,000 principal
30
amount of the Securities and the Guarantees, respectively;
(b) Indebtedness of the Company and Restricted Subsidiaries under (i)
the Credit Facility in an aggregate principal amount at any one time
outstanding not to exceed the greater of (x) $850,000,000 or (y) 100% of
Tangible Assets, less, in either case, any amounts permanently repaid in
accordance with Section 10.14 and (ii) the Term Loan in an aggregate amount
not to exceed $250,000,000, less the amount of any repayments of the Term
Loan;
(c) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the Issue Date, including the 9 1/2% Notes, the 8.80% Notes
and the respective guarantees thereof;
(d) Indebtedness of the Company or any Restricted Subsidiary of the
Company incurred in respect of performance bonds, bankers' acceptances and
letters of credit in the ordinary course of business, including
Indebtedness evidenced by letters of credit issued in the ordinary course
of business consistent with past practice to support the insurance or self-
insurance obligations of the Company or any of its Restricted Subsidiaries
(including to secure workers' compensation and other similar insurance
coverages), in the aggregate amount not to exceed $10,000,000 at any time;
but excluding letters of credit issued in respect of or to secure money
borrowed;
(e) (i) Interest Rate Protection Obligations of the Company covering
Indebtedness of the Company and (ii) Interest Rate Protection Obligations
of any Restricted Subsidiary covering Permitted Indebtedness of such
Restricted Subsidiary provided that, in the case of either clause (i) or
-------- ----
(ii), (x)
31
any Indebtedness to which any such Interest Rate Protection Obligations
correspond bears interest at fluctuating interest rates and is otherwise
permitted to be incurred under Section 10.8 and (y) the notional principal
amount of any such Interest Rate Protection Obligations that exceeds the
principal amount of the Indebtedness to which such Interest Rate Protection
Obligations relate shall not constitute Permitted Indebtedness;
(f) Indebtedness of a Restricted Subsidiary owed to and held by the
Company or another Restricted Subsidiary, except that (i) any transfer of
such Indebtedness by the Company or a Restricted Subsidiary (other than to
the Company or another Restricted Subsidiary) and (ii) the sale, transfer
or other disposition by the Company or any Restricted Subsidiary of the
Company of Capital Stock of a Restricted Subsidiary (other than to the
Company or a Restricted Subsidiary) which is owed Indebtedness of another
Restricted Subsidiary shall, in each case, be an incurrence of Indebtedness
by such Restricted Subsidiary subject to the other provisions hereof;
(g) Indebtedness of the Company owed to and held by a Restricted
Subsidiary which is unsecured and subordinated in right of payment to the
payment and performance of the obligations of the Company under this
Indenture and the Securities, except that (i) any transfer of such
Indebtedness by the Restricted Subsidiary (other than to another Restricted
Subsidiary) and (ii) the sale, transfer or other disposition by the Company
or any Restricted Subsidiary of the Company (other than to the Company or a
Restricted Subsidiary) of Capital Stock of a Restricted Subsidiary which is
owed Indebtedness of the Company shall, in each case, be an
32
incurrence of Indebtedness by the Company, subject to the other provisions
hereof;
(h) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business; provided, however, that such
-------- -------
Indebtedness is extinguished within five Business Days of incurrence;
(i) Indebtedness of the Company or any Restricted Subsidiary under
equipment purchase or lines of credit or for Capitalized Lease Obligations
not to exceed $25,000,000 in aggregate principal amount outstanding at any
time;
(j) Indebtedness of the Company or any Restricted Subsidiary, in
addition to that described in clauses (a) through (i) of this definition,
in an aggregate principal amount outstanding at any time not to exceed
$15,000,000;
(k) (i) Indebtedness of the Company the proceeds of which are used
solely to refinance (whether by amendment, renewal, extension or refunding)
Indebtedness of the Company or any of its Restricted Subsidiaries and (ii)
Indebtedness of any Restricted Subsidiary of the Company the proceeds of
which are used solely to refinance (whether by amendment, renewal,
extension or refunding) Indebtedness of such Restricted Subsidiary,
provided, however, that (x) the principal amount of Indebtedness incurred
-------- -------
pursuant to this clause (k) (or, if such Indebtedness provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof, the original issue
price of
33
such Indebtedness) shall not exceed the sum of principal amount of
Indebtedness so refinanced, plus the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms of such
Indebtedness or the amount of any premium reasonably determined by the
Company as necessary to accomplish such refinancing by means of a tender
offer or privately negotiated purchase, plus the amount of expenses in
connection therewith, and (y) in the case of Indebtedness incurred by the
Company pursuant to this clause (k) to refinance Subordinated Indebtedness,
such Indebtedness (A) has no scheduled principal payment prior to the 91st
day after the Maturity Date, (B) has an Average Life to Stated Maturity
greater than the remaining Average Life to Stated Maturity of the
Securities and (C) is subordinated to the Securities in the same manner and
to the same extent that the Subordinated Indebtedness being refinanced is
subordinated to the Securities;
(l) Indebtedness arising from agreements of the Company or any
Restricted Subsidiary providing for indemnification, adjustment or holdback
of purchase price or similar obligations, in each case, incurred or assumed
in connection with the acquisition or disposition of any business, assets
or a Subsidiary, other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or Subsidiary
for the purpose of financing such acquisition; and
(m) guarantees by the Company or a Restricted Subsidiary of
Indebtedness that was permitted to be incurred under this Indenture.
"Permitted Investments" means any of the following: (i) Investments in
---------------------
the Company or in a Restricted Subsidiary; (ii) Investments in another Person,
if as
34
a result of such Investment (A) such other Person becomes a Restricted
Subsidiary or (B) such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all of its assets to the Company or a
Restricted Subsidiary; (iii) Investments representing Capital Stock or
obligations issued to the Company or a Restricted Subsidiary in settlement of
claims against any other Person by reason of a composition or readjustment of
debt or a reorganization of any debtor of the Company or such Restricted
Subsidiary; (iv) Investments in Interest Rate Protection Agreements on
commercially reasonable terms entered into by the Company or any of its
Subsidiaries in the ordinary course of business in connection with the
operations of the business of the Company or its Restricted Subsidiaries to
hedge against fluctuations in interest rates on its outstanding Indebtedness;
(v) Investments in the Securities; (vi) Investments in Cash Equivalents; (vii)
Investments acquired by the Company or any Restricted Subsidiary in connection
with an Asset Sale permitted under Section 10.14 to the extent such Investments
are non-cash proceeds as permitted under Section 10.14; (viii) advances to
employees or officers of the Company in the ordinary course of business; (ix)
any Investment to the extent that the consideration therefor is Capital Stock
(other than Redeemable Capital Stock) of the Company and (x) other Investments
not to exceed $5,000,000 at any time outstanding.
"Permitted Liens" means the following types of Liens:
---------------
(a) any Lien existing as of the Issue Date;
(b) Liens securing Senior Indebtedness;
(c) any Lien securing Acquired Indebtedness created prior to (and not
created in connection with, or in contemplation of) the incurrence of
35
such Indebtedness by the Company or any Restricted Subsidiary, if such Lien
does not attach to any property or assets of the Company or any Restricted
Subsidiary other than the property or assets subject to the Lien prior to
such incurrence;
(d) Liens in favor of the Company or a Restricted Subsidiary;
(e) Liens on and pledges of the Capital Stock of any Unrestricted
Subsidiary securing any Indebtedness of such Unrestricted Subsidiary;
(f) Liens for taxes, assessments or governmental charges or claims either
(i) not delinquent or (ii) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries
shall have set aside on its books such reserves as may be required pursuant
to GAAP;
(g) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent or
being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made in
respect thereof;
(h) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
36
(i) judgment Liens not giving rise to an Event of Default so long as such
Lien is adequately bonded and any appropriate legal proceedings which may
have been duly initiated for the review of such judgment shall not have
been finally terminated or the period within which such proceedings may be
initiated shall not have expired;
(j) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company
or any of its Restricted Subsidiaries;
(k) any interest or title of a lessor under any Capitalized Lease
Obligation or operating lease;
(l) purchase money Liens to finance property or assets of the Company or
any Restricted Subsidiary of the Company acquired in the ordinary course of
business; provided, however, that (i) the related purchase money
-------- -------
Indebtedness shall not be secured by any property or assets of the Company
or any Subsidiary of the Company other than the property and assets so
acquired and (ii) the Lien securing such Indebtedness shall be created
within 90 days of such acquisition;
(m) Liens securing reimbursement obligations with respect to commercial
letters of credit which encumber documents and other property relating to
such letters of credit and products and proceeds thereof;
(n) Liens securing refinancing Indebtedness permitted under clause (k) of
the definition of "Permitted Indebtedness", provided such Liens do
--------
37
not exceed the Liens replaced in connection with such refinanced
Indebtedness;
(o) Liens incurred in the ordinary course of business by the Company or
any Restricted Subsidiary with respect to obligations that do not exceed
$5,000,000 at any time outstanding;
(p) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset
and set-off;
(q) Liens securing Interest Rate Protection Obligations which Interest
Rate Protection Obligations relate to Indebtedness that is secured by Liens
otherwise permitted under this Indenture; and
(r) Liens created in favor of the Trustee pursuant to Section 6.7 hereof.
"Person" means any individual, corporation, partnership, limited
------
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock," as applied to any Person, means Capital Stock of any
---------------
class or classes (however designated) which is preferred as to the payment of
dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over shares
of Capital Stock of any other class of such Person.
"Private Placement Legend" shall mean the legend initially set forth on
------------------------
the Securities in the form set forth on Exhibit A-1.
-----------
38
"Public Equity Offering" means an underwritten public offering of Common
----------------------
Stock pursuant to a registration statement filed with the Commission in
accordance with the Securities Act, which public equity offering results in net
cash proceeds to the Company.
"Purchase Amount" means, with respect to an Offer to Purchase, the
---------------
maximum aggregate amount payable by the Company for Securities under the terms
of such Offer to Purchase, if such Offer to Purchase were accepted in respect of
all Securities.
"Purchase Date" shall have the meaning set forth in the definition of
-------------
"Offer to Purchase."
"Qualified Equity Interest" in a Person means any interest in Capital
-------------------------
Stock of such Person, other than Redeemable Capital Stock.
"Qualified Institutional Buyer" or "QIB" has the meaning specified in
----------------------------- ---
Rule 144A under the Securities Act.
"Record Expiration Date" has the meaning specified in Section 1.4.
----------------------
"Redeemable Capital Stock" means any class or series of Capital Stock
------------------------
that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise, is or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the Maturity Date or is redeemable at the option of the holder thereof at any
time prior to the Maturity Date, or is convertible into or exchangeable for debt
securities at any time prior to the Maturity Date; provided that Capital Stock
-------- ----
will not constitute Redeemable Capital Stock solely because the holders thereof
have the right to require the Company to repurchase or redeem such Capital Stock
upon the occurrence of a Change of Control or an Asset Sale.
39
"Redemption Date," when used with respect to any Security to be redeemed,
---------------
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be
----------------
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrable Securities" has the meaning set forth in the Registration
----------------------
Rights Agreement.
"Registration Rights Agreement" means the Notes Registration Rights
-----------------------------
Agreement dated as of December 15, 1998 by and among the Company, the Guarantors
and the Initial Purchaser, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
"Regular Record Date" for the interest payable on any Interest Payment
-------------------
Date means the January 1 or July 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
------------
"Regulation S Global Security" means a permanent global Security in
----------------------------
registered form representing the aggregate principal amount of Securities sold
in reliance on Regulation S under the Securities Act.
"Reorganization" means the reorganization of the Company and Holdings,
--------------
consummated on August 5, 1998, pursuant to which (i) the Company became a
wholly-owned subsidiary of Holdings; (ii) the name of the Company was changed to
"United Rentals (North America), Inc." and the name of Holdings was changed to
"United Rentals, Inc.;"(iii) the then outstanding common stock of the Company
was automatically converted, on a share-for-share
40
basis, to common stock of Holdings and (iv) the common stock of Holdings
commenced trading on the New York Stock Exchange under the symbol "URI," instead
of the common stock of the Company.
"Replacement Assets" has the meaning specified in Section 10.14.
------------------
"Required Filing Dates" has the meaning specified in Section 10.19.
---------------------
"Responsible Officer," when used with respect to the Trustee, means any
-------------------
officer within the Corporate Trust Office, including, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Payments" has the meaning specified in Section 10.9.
-------------------
"Restricted Security" means a Security that constitutes a "restricted
-------------------
security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
- -------- -------
conclusively rely on an opinion of counsel with respect to whether any Security
constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company that is not
---------------------
an Unrestricted Subsidiary.
"Revocation" has the meaning set forth in Section 10.18.
----------
41
"Rule 144A" means Rule 144A under the Securities Act.
---------
"S&P" means Standard & Poor's Ratings Group, and its successors.
---
"Securities" means securities designated in the first paragraph of the
----------
RECITALS OF THE COMPANY.
"Securities Act" means the Securities Act of 1933 and any statute
-------------
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
----------------- ------------------
specified in Section 3.5.
"Senior Indebtedness" means the principal of, premium, if any, and
-------------------
interest on any Indebtedness of the Company, whether outstanding on the Issue
Date or thereafter created, incurred or assumed, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities. Without
limiting the generality of the foregoing, (x) "Senior Indebtedness" shall
include the principal of, premium, if any, and interest on all obligations of
every nature of the Company from time to time owed to the lenders under the
Credit Facility and the Term Loan, including, without limitation, principal of
and interest on, and all fees, indemnities and expenses payable under the Credit
Facility and the Term Loan and (y) in the case of Designated Senior
Indebtedness, "Senior Indebtedness" shall include interest accruing thereon
subsequent to the occurrence of any Event of Default specified in clause (7) or
(8) under Section 5.1, whether or not the claim for such interest is allowed
under any applicable bankruptcy law. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (a)
42
Indebtedness evidenced by the Securities, (b) Indebtedness that is expressly
subordinate or junior in right of payment to any Indebtedness of the Company,
including the Company's 9 1/2% Notes and the 8.80% Notes, (c) Indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of Title 11, United States Code, is without recourse to the Company, (d)
Indebtedness which is represented by Redeemable Capital Stock, (e) Indebtedness
for goods, materials or services purchased in the ordinary course of business or
Indebtedness consisting of trade payables or other current liabilities (other
than any current liabilities owing under the Credit Facility, or the current
portion of any long-term Indebtedness (including the Term Loan) which would
constitute Senior Indebtedness but for the operation of this clause (e)), (f)
Indebtedness of or amounts owed by the Company for compensation to employees or
for services rendered to the Company, (g) any liability for federal, state,
local or other taxes owed or owing by the Company, (h) Indebtedness of the
Company to a Subsidiary of the Company or any other Affiliate of the Company or
any of such Affiliate's Subsidiaries, (i) that portion of any Indebtedness which
is incurred by the Company in violation of this Indenture and (j) amounts owing
under leases.
"Significant Subsidiary" of any Person means, as of any date of
----------------------
determination, a Restricted Subsidiary of such Person which would be a
significant subsidiary of such Person as of such date as determined in
accordance with the definition in Rule 1-02(w) of Article I of Regulation S-X
promulgated by the Commission and as in effect on the date of this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means a
-------------------
date fixed by the Trustee pursuant to Section 3.7.
43
"Stated Maturity" means, when used with respect to any Security or any
---------------
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable, and when used with respect to any other
Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness, or
any installment of interest thereon, is due and payable.
"Subordinated Indebtedness" means, with respect to the Company,
-------------------------
Indebtedness of the Company which is expressly subordinated in right of payment
to the Securities.
"Subsidiary" means, with respect to any Person, (i) a corporation a
----------
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof and (ii) any other Person (other than a
corporation), including, without limitation, a partnership, limited liability
company, business trust or joint venture, in which such Person, one or more
Subsidiaries thereof or such Person and one or more Subsidiaries thereof,
directly or indirectly, at the date of determination thereof, has at least
majority ownership interest entitled to vote in the election of directors,
managers or trustees thereof (or other Person performing similar functions).
For purposes of this definition, any directors' qualifying shares or investments
by foreign nationals mandated by applicable law shall be disregarded in
determining the ownership of a Subsidiary.
"Tangible Assets" means all assets of the Company and its Subsidiaries,
---------------
excluding all Intangible Assets. For purposes of the foregoing, "Intangible
Assets" means goodwill, patents, trade names, trade marks, copyrights,
44
franchises, organization expenses and any other assets properly classified as
intangible assets in accordance with GAAP.
"Term Loan" means the Term Loan Agreement, dated as of July 10, 1998, as
---------
amended on September 29, 1998, among the Company, various financial institutions
and Bank of America National Trust and Savings Association, as agent, including
any notes, guarantees, collateral documents, instruments and agreements executed
in connection therewith, and in each case as amended (including any amendment
and restatement thereof), modified, renewed, refunded, replaced or refinanced
from time to time, including any agreement extending the maturity of,
refinancing, replacing or otherwise restructuring (including increasing the
amount of available borrowings thereunder or adding additional guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
-------------------
at the date as of which this instrument was executed; provided, however, that in
-------- -------
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
-------
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Unrestricted Securities" means one or more Securities in the form set
-----------------------
forth in Exhibit A-2, including, without limitation, the Exchange Securities,
-----------
that
45
do not and are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means each Subsidiary of the Company designated
-----------------------
as such pursuant to and in compliance with Section 10.18.
"U.S. Government Obligation" has the meaning specified in Section 12.4.
--------------------------
"Vice President," when used with respect to the Company or the Trustee,
--------------
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" means any class or classes of Capital Stock pursuant to
------------
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
"Wholly-Owned Restricted Subsidiary" means any Restricted Subsidiary of
----------------------------------
the Company of which 100% of the outstanding Capital Stock is owned by the
Company or another Wholly-Owned Restricted Subsidiary of the Company. For
purposes of this definition, any directors' qualifying shares or investments by
foreign nationals mandated by applicable law shall be disregarded in determining
the ownership of a Subsidiary.
SECTION 1.2 Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company or a Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company or
the Guarantor shall furnish to the Trustee such certificates and
46
opinions as may be required under the Trust Indenture Act. Each such certificate
or opinion shall be given in the form of an Officer's Certificate, if to be
given by an officer of the Company or a Guarantor, or an Opinion of Counsel, if
to be given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include
(i) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(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 each such individual, 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, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one
47
such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or a Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or a
Guarantor stating that the information with respect to such factual matters is
in the possession of the Company or such Guarantor, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in
48
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company or a
Guarantor, as applicable. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Company
49
or a Guarantor in reliance thereon, whether or not notation of such action is
made upon such Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities, provided that the Company may not set a record date for, and the
-------- ----
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
-------- ----
hereunder unless taken on or prior to the applicable Record Expiration Date by
Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall prevent the Company from setting a
new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
nor shall anything in this paragraph be construed to render ineffective any
action taken pursuant to or in accordance with any other provision of this
Indenture by Holders of the requisite principal amount of Outstanding Securities
on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable Record
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities in the manner set forth in Section 1.6.
50
The Trustee may but need not set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2) or (iv) any direction referred to in
Section 5.12. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
-------- ----
action shall be effective hereunder unless taken on or prior to the applicable
Record Expiration Date by Holders of the requisite principal amount of
Outstanding Securities on such record date. Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new record date for any action
(whereupon the record date previously set shall automatically and without any
action by any Person be cancelled and of no effect), nor shall anything in this
paragraph be construed to render ineffective any action taken pursuant to or in
accordance with any other provision of this Indenture by Holders of the
requisite principal amount of Outstanding Securities on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record date, the
matter(s) to be submitted for potential action by Holders and the applicable
Record Expiration Date to be given to the Company in writing and to each Holder
of Securities in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto that sets such record date may designate any day as the "Record
Expiration Date" and from time to time may change the Record Expiration Date to
any earlier or later day, provided that
-------- ----
51
no such change shall be effective unless notice of the proposed new Record
Expiration Date is given to the other party hereto in writing, and to each
Holder of Securities in the manner set forth in Section 1.6, on or before the
existing Record Expiration Date. If a Record Expiration Date is not designated
with respect to any record date set pursuant to this Section, the party hereto
that set such record date shall be deemed to have initially designated the 180th
day after such record date as the Record Expiration Date with respect thereto,
subject to its right to change the Record Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Record Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.5 Notices to Trustee,
the Company or a Guarantor.
--------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(i) the Trustee by any Holder or by the Company or a Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing and mailed, first-class postage prepaid, to or with the Trustee
at its Corporate Trust Office, Attention: Corporate Trust Administration,
52
(ii) the Company or a Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company or such Guarantor addressed to it at the address of the Company's
principal office specified in the first paragraph of this instrument, or at
any other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.6 Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail or receive such notice, nor any
defect in any such notice, to any particular Holder shall affect the sufficiency
or validity of such notice. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the
53
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.7 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under the Trust Indenture Act to be
part of and govern this Indenture, such provision of the Trust Indenture Act
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, such
provision shall be deemed to be so modified or excluded, as the case may be.
SECTION 1.8 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
----------------------
Without limiting Articles VIII and XIII hereof, all covenants and
agreements in this Indenture by each of the Company or the Guarantors shall bind
their respective successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
54
SECTION 1.11 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12 Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
SECTION 1.13 Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect (including with respect to the accrual of interest) as if made on the
Interest Payment Date, Redemption Date or Purchase Date, or at the Stated
Maturity.
ARTICLE II
Security Forms
SECTION 2.1 Forms Generally.
---------------
The Securities and the Trustee's certificates of authentication shall be
in substantially the forms set forth or referenced in Exhibit A-1 and
-----------
Exhibit A-2 annexed
- -----------
55
hereto, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or the Depositary or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof.
ARTICLE III
The Securities
SECTION 3.1 Title and Terms.
---------------
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $300,000,000 principal amount
of Initial Securities and up to $300,000,000 principal amount of Securities
exchanged therefor in accordance with the Registration Rights Agreement, except
for Securities authenticated and delivered upon registration or transfer of, or
in exchange for, or in lieu of, other Securities pursuant to Section 3.4, 3.5,
3.6, 9.6 or 11.8 or in connection with an Offer pursuant to Sections 10.13 or
10.14.
The Securities shall be known and designated as the "93% Senior
Subordinated Notes due 2009" of the Company. Their Stated Maturity for payment
of principal shall be January 15, 2009. Interest on the Securities shall accrue
at the rate of 9.25% per annum and shall be payable semi-annually on each
January 15 and July 15, commencing July 15, 1999, to the Holders of record of
Securities at the close of business on the January 1 and July 1, respectively,
immediately preceding such Interest Payment Date. Interest on the Securities
will
56
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the Issue Date of such Securities. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Trustee in the Borough of
Manhattan, The City of New York or such other office maintained by the Trustee
for such purpose and at any other office or agency maintained by the Company for
such purpose; provided, however, that, at the option of the Company, payment of
-------- -------
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
The Company may be required to make a Change of Control Offer as provided
in Section 10.13, or an Asset Sale Offer as provided in Section 10.14.
The Securities shall be redeemable as provided in Article XI and the
Securities.
The Securities shall be subject to Defeasance and/or Covenant Defeasance
as provided in Article XII.
SECTION 3.2 Denominations.
-------------
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 principal amount and any integral multiple
thereof.
57
SECTION 3.3 Execution, Authentication,
Delivery and Dating.
-------------------
The Initial Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A-1 hereto. The Exchange
-----------
Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A-2 hereto.
-----------
The terms and provisions contained in the Securities annexed hereto as
Exhibits A-1 and A-2 shall constitute, and are hereby expressly made, a part of
- ------------ ---
this Indenture and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Securities offered and sold in reliance on Rule 144A and Securities
offered and sold in reliance on Regulation S shall be issued initially in the
form of one or more Global Securities, substantially in the form set forth in
Exhibit A-1, deposited with the Trustee, as custodian for the Depositary, duly
- -----------
executed by the Company and authenticated by the Trustee as hereinafter provided
and shall bear the legend set forth in Exhibit B. The aggregate principal
---------
amount of the Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary, as hereinafter provided.
All Securities shall remain in the form of a Global Security, except as
provided herein.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President or one of its Vice
Presidents, or its Chief Financial Officer, attested by its Secretary or one of
its Assistant Secretaries. The
58
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.4 Temporary Securities.
--------------------
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten,
59
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 10.2, 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 principal amount of definitive Securities of
authorized denominations and of a like tenor. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 3.5 Registration, Registration of
Transfer and Exchange.
---------------------
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 10.2 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as the Company may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed the initial "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
60
Subject to Sections 3.13 and 3.14 of this Indenture, upon surrender for
registration of transfer of any Security at an office or agency of the Company
designated pursuant to Section 10.2 for such purpose, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one more or more new Securities of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
61
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.6 or 11.8 or in accordance with any
Change of Control Offer pursuant to Section 10.13 or any Asset Sale Offer
pursuant to Section 10.14, and in any such case not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Security during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 11.4 and ending at the close of business
on the day of such mailing, (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part or (iii) to register the transfer
of any Securities other than Securities having a principal amount of $1,000 or
integral multiples thereof.
SECTION 3.6 Mutilated, Destroyed,
Lost and Stolen Securities.
--------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of each of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute, and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a
62
new Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Rights Preserved.
-------------------------------------
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more predecessor securities) is registered at the
close of business on the Regular Record Date for such interest payment.
63
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
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 days
and not less than 10 days prior to the date of the proposed payment and not
less than 15 days after the receipt by 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 given to each Holder in the manner
64
specified in Section 1.6, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8 Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 3.7) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any
65
agent of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.9 Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or tendered and accepted pursuant to any Change of Control
Offer pursuant to Section 10.13 or any Asset Sale Offer pursuant to Section
10.14 shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of in the customary manner by the Trustee unless otherwise directed
by a Company Order.
SECTION 3.10 Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
SECTION 3.11 CUSIP and CINS Numbers.
----------------------
The Company in issuing the Securities may use "CUSIP" and "CINS" numbers
(if then generally in use), and, if so, the Trustee shall use the CUSIP or CINS
numbers in notices of redemption or repurchase as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
- -------- ----
correctness of such numbers either as printed on the Securities
66
or as contained in any notice of a redemption or repurchase and that reliance
may be placed only on the other identification numbers printed on the
Securities, and any such redemption or repurchase shall not be affected by any
defect in or omission of such numbers.
SECTION 3.12 Deposits of Monies.
------------------
Except to the extent payment of interest is made by the Company's check
pursuant to Section 3.1, prior to 11:00 a.m. New York City time on each Interest
Payment Date, Redemption Date, Stated Maturity, and Purchase Date, the Company
shall deposit with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date,
Redemption Date, Stated Maturity and Purchase Date, as the case may be, in a
timely manner which permits the Paying Agent to remit payment to the Holders on
such Interest Payment Date, Redemption Date, Stated Maturity, and Purchase Date,
as the case may be.
SECTION 3.13 Book-Entry Provisions
for Global Securities.
---------------------
(a) The Global Securities initially shall (i) be registered in the name
of the Depositary or the nominee of such Depositary, (ii) be delivered to
the Trustee as custodian for such Depositary and (iii) bear legends as set
forth in Exhibit B hereto.
---------
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary, or the Trustee as its custodian, or
under any Global Security, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Securities for
67
all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Security.
(b) Interests of beneficial owners in a Global Security may be
transferred in accordance with the applicable rules and procedures of the
Depositary and the provisions of Section 3.14. Transfer of Global
Securities shall be limited to transfers in whole, but not in part, to the
Depositary, its successors or their respective nominees. Interests of
beneficial owners in the Global Securities may not be transferred or
exchanged for physical securities, except that physical securities shall be
transferred to all beneficial owners in exchange for their beneficial
interests in Global Securities if (i) the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for any Global
Security, or that it will cease to be a "Clearing Agency" under the
Exchange Act, and in either case a successor Depositary is not appointed by
the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Security Registrar has received a
written request from the Depositary to issue physical securities.
(c) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
68
SECTION 3.14 Special Transfer Provisions.
---------------------------
(a) Transfers to Non-U.S. Persons. The following additional provisions
-----------------------------
shall apply with respect to the registration of any proposed transfer of
and the transfer of the beneficial interest in an Initial Security to any
Non-U.S. Person:
(i) the Security Registrar shall register the transfer of any Initial
Security, whether or not such Security bears the Private Placement
Legend, and a transfer of the beneficial interest in an Initial Security
may be made if (x) the requested transfer is after the second anniversary
of the Issue Date; provided, however, that neither the Company nor any
-------- -------
Affiliate of the Company has held any beneficial interest in such
Security, or portion thereof, at any time on or prior to the second
anniversary of the Issue Date and such transfer can otherwise be lawfully
made under the Securities Act without registering such Initial Security
thereunder or (y) the proposed transferor has delivered to the Security
Registrar a certificate substantially in the form of Exhibit C hereto;
---------
and
(ii) if the proposed transferor is an Agent Member seeking to transfer
an interest in a 144A Global Security, upon receipt by the Security
Registrar of (x) written instructions given in accordance with the
Depositary's and the Security Registrar's procedures and (y) the
appropriate certificate, if any, required by paragraph (i) above, the
Security Registrar shall register the transfer and reflect on its books
and records the date and (A) a decrease in the principal amount of the
144A Global Security from which such interests are to be transferred in
an amount equal to the principal amount of the Securities
69
to be transferred and (B) an increase in the principal amount of the
Regulation S Global Security in an amount equal to the principal amount
of the Global Security to be transferred.
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of, and the transfer
of the beneficial interest in, an Initial Security to a QIB (excluding Non-
U.S. Persons):
(i) the Security Registrar shall register the transfer of any Initial
Security, whether or not such Security bears the Private Placement
Legend, and the transfer of the beneficial interest in an Initial
Security may be made if (x) the requested transfer is after the second
anniversary of the Issue Date; provided, however, that neither the
-------- -------
Company nor any Affiliate of the Company has held any beneficial interest
in such Security, or portion thereof, at any time on or prior to the
second anniversary of the Issue Date and such transfer can otherwise be
lawfully made under the Securities Act without registering such Initial
Security thereunder or (y) such transfer is being made by a proposed
transferor who has checked the box provided for on the form of Security
stating, or has otherwise advised the Company and the Security Registrar
in writing, that the sale has been made in compliance with the provisions
of Rule 144A to a transferee who has signed the certification provided
for on the form of Security stating, or has otherwise advised the Company
and the Security Registrar in writing, that it is purchasing the Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within
the meaning of Rule 144A, and is aware that the sale to it is
70
being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as it has requested pursuant to
Rule 144A or has determined not to request such information and that it
is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A; and
(ii) if the proposed transferor is an Agent Member seeking to transfer
an interest in a Regulation S Global Security, upon receipt by the
Security Registrar of written instructions given in accordance with the
Depositary's and the Security Registrar's procedures, the Security
Registrar shall register the transfer and reflect on its books and
records the date and (A) a decrease in the principal amount of the
Regulation S Global Security from which interests are to be transferred
in an amount equal to the principal amount of the Securities to be
transferred and (B) an increase in the principal amount of the 144A
Global Security in an amount equal to the principal amount of the Global
Security to be transferred.
Notwithstanding the other provisions of this Section 3.14, until the 41st
day after the Issue Date (the "Distribution Compliance Period"), an owner
of a beneficial interest in the Regulation S Global Security may not
transfer such interest to a transferee that is a U.S. Person or for the
account or benefit of a U.S. Person within the meaning of Rule 902(o) of
the Securities Act. Subject to the other provisions of this Section
3.14(b), during the Distribution Compliance Period, all beneficial
interests in the Regulation S Global Security shall be transferred only
through Cedel or Euroclear, either directly
71
if the transferor and transferee are participants in such systems, or
indirectly through organizations that are participants therein.
(c) Private Placement Legend. Upon the registration of transfer,
------------------------
exchange or replacement of Securities not bearing the Private Placement
Legend, the Security Registrar shall deliver Securities that do not bear
the Private Placement Legend. Upon the registration of transfer, exchange
or replacement of Securities bearing the Private Placement Legend, the
Security Registrar shall deliver only Securities that bear the Private
Placement Legend unless (i) the circumstances contemplated by paragraph
(a)(i)(x) or (b)(i)(x) of this Section 3.14 exists, (ii) there is delivered
to the Security Registrar an opinion of counsel reasonably satisfactory to
the Company and the Trustee to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act or (iii) such Security
has been sold pursuant to an effective registration statement under the
Securities Act.
(d) Other Transfers. If a Holder proposes to transfer a Security
---------------
constituting a Restricted Security pursuant to any exemption from the
registration requirements of the Securities Act other than as provided for
by Section 3.14(a), (b) and (c), the Security Registrar shall only register
such transfer or exchange if such transferor delivers an opinion of counsel
satisfactory to the Company and the Security Registrar that such transfer
is in compliance with the Securities Act and the terms of this Indenture.
(e) General. By its acceptance of any Security bearing the Private
-------
Placement Legend and by its
72
ownership of a beneficial interest therein, each Holder of such a Security
and each owner of a beneficial interest therein acknowledges the
restrictions on transfer of such Security and of beneficial interests
therein set forth in this Indenture and in the Private Placement Legend and
agrees that it will transfer such Security and beneficial interests therein
only as provided in this Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 3.13 or this Section
3.14. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable prior written notice to the Security Registrar.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which
73
have been replaced or repaid as provided in Section 3.6 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation (other than Securities which have been destroyed, lost or
stolen and which have been replaced or repaid as provided in Section
3.6),
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire Indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest on the Securities 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, together with irrevocable
instructions from the Company directing the Trustee to
74
apply such funds to the payment thereof at maturity or redemption, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company or the Guarantors; and
(3) the Company has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article IV, the obligations of the Company to the Trustee under Section
6.7, the obligations of the Company to any Authenticating Agent under Section
6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
75
ARTICLE V
Remedies
SECTION 5.1 Events of Default.
-----------------
"Event of Default," wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of the principal of or premium, if any, when
due and payable, on any of the Securities (at Stated Maturity, upon
optional redemption, required purchase or otherwise); or
(2) default in the payment of an installment of interest on any of the
Securities, when due and payable, for 30 days; or
(3) default in the performance, or breach, of any covenant or agreement
of the Company under this Indenture (other than a default in the
performance or breach of a covenant or agreement which is specifically
dealt with in clauses (1), (2) or (4)) and such default or breach shall
continue for a period of 30 days after written notice has been given, by
certified mail, (x) to the Company by the Trustee or (y) to the Company and
the Trustee by the holders of at least 25% in aggregate principal amount of
the Outstanding Securities; or
(4) (a) there shall be a default in the performance or breach of the
provisions of Section 8.1 with respect to the Company; (b) the Company
shall have failed to make or consummate an Asset
76
Sale Offer in accordance with the provisions of Section 10.14; or (c) the
Company shall have failed to make or consummate a Change of Control Offer
in accordance with the provisions of Section 10.13; or
(5) default or defaults under one or more agreements, instruments,
mortgages, bonds, debentures or other evidences of Indebtedness under which
the Company or any Restricted Subsidiary of the Company then has
outstanding Indebtedness in excess of $15,000,000, individually or in the
aggregate, and either (a) such Indebtedness is already due and payable in
full or (b) such default or defaults have resulted in the acceleration of
the maturity of such Indebtedness; or
(6) one or more judgments, orders or decrees of any court or regulatory
or administrative agency of competent jurisdiction for the payment of money
in excess of $15,000,000, either individually or in the aggregate, shall be
entered against the Company or any Restricted Subsidiary of the Company or
any of their respective properties and shall not be discharged and there
shall have been a period of 60 days after the date on which any period for
appeal has expired and during which a stay of enforcement of such judgment,
order or decree, shall not be in effect; or
(7) the entry of a decree or order by a court having jurisdiction in the
premises (A) for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under the Federal
Bankruptcy Code or any other federal, state or foreign bankruptcy,
insolvency, reorganization or similar law or (B) adjudging the Company or
any Significant Subsidiary bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of
the
77
Company or any Significant Subsidiary under the Federal Bankruptcy Code or
any other similar federal, state or foreign law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any
substantial part of any of their properties, or ordering the winding up or
liquidation of any of their affairs, and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days; or
(8) the institution by the Company or any Significant Subsidiary of a
voluntary case or proceeding under the Federal Bankruptcy Code or any other
similar federal, state or foreign law or any other case or proceedings to
be adjudicated a bankrupt or insolvent, or the consent by the Company or
any Significant Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Significant Subsidiary in any involuntary
case or proceeding under the Federal Bankruptcy Code or any other similar
federal, state or foreign law or to the institution of bankruptcy or
insolvency proceedings against the Company or any Significant Subsidiary,
or the filing by the Company or any Significant Subsidiary of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other similar federal, state or foreign law, or the
consent by it to the filing of any such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee,
trustee or sequestrator (or other similar official) of any of the Company
or any Significant Subsidiary or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due or the
78
taking of corporate action by the Company or any Significant Subsidiary in
furtherance of any such action; or
(9) any of the Guarantees ceases to be in full force and effect or any of
the Guarantees is declared to be null and void and unenforceable or any of
the Guarantees is found to be invalid or any of the Guarantors denies its
liability under its Guaranty (other than by reason of release of a
Guarantor in accordance with the terms of this Indenture).
SECTION 5.2 Acceleration of Maturity;
Rescission and Annulment.
------------------------
If an Event of Default (other than those covered by clause (7) or (8)
of Section 5.1 with respect to the Company) shall occur and be continuing, the
Trustee, by notice to the Company and the representatives of the holders of
Designated Senior Indebtedness, or the Holders of at least 25% in aggregate
principal amount of the Securities then Outstanding, by notice to the Trustee,
the Company and the representatives of the holders of Designated Senior
Indebtedness, may declare the principal of, premium, if any, and accrued and
unpaid interest, if any, on all of the outstanding Securities due and payable
immediately, upon which declaration, all amounts payable in respect of the
Securities shall be due and payable as of the date which is five business days
after the giving of such notice to representatives of the holders of Designated
Senior Indebtedness. If an Event of Default specified in clause (7) or (8) of
Section 5.1 with respect to the Company or a Significant Subsidiary occurs and
is continuing, then the principal of, premium, if any, and accrued and unpaid
interest, if any, on all the Outstanding Securities shall ipso facto become and
be immediately due and payable without any declaration or
79
other act on the part of the Trustee or any Holder of Securities.
After a declaration of acceleration under the Indenture, but before a
judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of a majority in aggregate principal amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind such declaration if
(1) the Company or any Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all sums paid or advanced by the Trustee under this Indenture
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel,
(B) all overdue interest on all Securities,
(C) the principal of and premium, if any, on any Securities which
have become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Securities, and
(D) to the extent that payment of such interest is lawful,
interest upon overdue interest and overdue principal at the rate set
forth in the Securities which has become due otherwise than by such
declaration of acceleration;
(2) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction; and
80
(3) all Events of Default, other than the non-payment of principal of,
premium, if any, and interest on the Securities that have become due solely
by such declaration of acceleration, have been cured or waived.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.3 Collection of Indebtedness
and Suits for Enforcement by Trustee.
------------------------------------
The Company and each Guarantor covenants that if
(i) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(ii) default is made in the payment of the principal of (or premium,
if any, on) any Security on the due date for payment thereof, including,
with respect to any Security required to have been purchased pursuant to a
Change of Control Offer or an Asset Sale Offer made by the Company, at the
Purchase Date thereof,
the Company or such Guarantor will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest,
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate provided by the Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
81
disbursements and advances of the Trustee, its agents and counsel.
In addition to the rights and powers set forth in Section 317(a) of
the Trust Indenture Act, the Trustee shall be entitled to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of the Securities allowed in any judicial proceeding
relative to the Company, any Guarantor or any other obligor upon the Securities,
its creditors, or its property, and to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute the same
after the deduction of its charges and expenses; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by each of the
Holders to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for compensation and expenses, including counsel
fees incurred by it up to the date of such distribution.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company, a
Guarantor (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
82
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
--------
however, that the Trustee may, on behalf of the Holders, vote for the election
- -------
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 5.5 Trustee May Enforce Claims
Without Possession of Securities.
--------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall,
83
after provision for the payment of the reasonable compensation, expenses,
distributions and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively;
THIRD: To the payment of any and all other amounts due under the
Indenture, the Securities or the Guarantees; and
FOURTH: To the Company (or such other Person as a court of competent
jurisdiction may direct).
84
SECTION 5.7 Limitation on Suits.
-------------------
Subject to Section 5.8, no Holder of any Security shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(i) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(ii) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 45 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(v) no direction inconsistent with such written request has been given
to the Trustee during such 45-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the
85
manner herein provided and for the equal and ratable benefit of all the Holders.
SECTION 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest.
---------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or in the case of a Change of Control Offer or an Asset Sale Offer made by
the Company and required to be accepted as to such Security, on the relevant
Purchase Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, each Guarantor, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted,
subject to the determination in such proceeding.
SECTION 5.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost
86
or stolen Securities in the last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12 Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
-------- ----
(i) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(ii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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SECTION 5.13 Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(i) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to a Change of Control Offer or an Asset Sale Offer
which has been made by the Company), or
(ii) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
-------- ----
shall be deemed to authorize any court to require such an undertaking or to
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make such an assessment in any suit instituted by the Company or a Guarantor, in
any suit instituted by the Trustee, in any suit instituted by any Holder or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities, or in any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the Stated Maturity expressed in such Security (or,
in the case of redemption, on or after the Redemption Date or, in the case of a
Change of Control Offer or an Asset Sale Offer, made by the Company and required
to be accepted as to such Security, on the applicable Purchase Date, as the case
may be).
SECTION 5.15 Waiver of Stay or Extension Laws.
--------------------------------
The Company and each Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company and
each Guarantor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
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ARTICLE VI
The Trustee
SECTION 6.1 Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) 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; but in
the case of any such certificates or opinions which by the provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture but need not verify
the contents thereof.
(b) In case 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.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for
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its own negligent misconduct, except that no provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers under this
Indenture, unless the Trustee has received security and indemnity
satisfactory to it against any loss, liability or expense. The Trustee
shall not be liable for any error of judgment unless it is proved that the
Trustee was negligent in the performance of its duties hereunder.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section 6.1.
SECTION 6.2 Notice of Defaults.
------------------
Within 30 days after the occurrence of any Default, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the
Security Register, notice of such Default hereunder known to the Trustee, unless
such Default shall have been cured or waived; provided, however, that, except in
-------- -------
the case of a Default in the payment of the principal of, premium, if any, or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as a trust committee of Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders.
SECTION 6.3 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.1:
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(a) the Trustee may conclusively rely as to the truth of the
statements and correctness of the opinions expressed therein and shall be
fully protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors of the Company may be sufficiently
evidenced by a Board Resolution of the Company;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the
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Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled (subject to reasonable confidentiality arrangements as
may be proposed by the Company or any Guarantor) to make reasonable
examination (upon prior notice and during regular business hours) of the
books, records and premises of the Company or a Guarantor, personally or by
agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or custodians or nominees and the Trustee shall not be
responsible for the supervision of, or any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture; and
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(i) in the event that the Trustee is also acting as Authenticating
Agent, Paying Agent or Security Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article VI shall also
be afforded to such Authenticating Agent, Paying Agent and Security
Registrar.
SECTION 6.4 Not Responsible for Recitals
or Issuance of Securities.
-------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 6.5 May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or any Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company or a
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder
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except as otherwise agreed in writing with the Company.
SECTION 6.7 Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree
in writing for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to promptly
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee, its directors, officers, agents and
employees for, and to hold them harmless against, any and all loss, damage,
claim, liability or expense incurred without negligence or bad faith on its
part, including taxes (other than taxes based upon, measured by or
determined by the revenue or income of the Trustee), arising out of or in
connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
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The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing to it pursuant to
this Section 6.7, except with respect to funds held in trust for the benefit of
the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(7) or Section 5.1(8), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive any termination of this
Indenture.
SECTION 6.8 Conflicting Interests.
---------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has, or is a wholly-owned subsidiary of a bank holding company that has, a
combined capital and surplus of at least $100,000,000 and a Corporate Trust
Office in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of a Federal or State supervising or examining authority, then for
the purposes
96
of this Section and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal;
Appointment of Successor.
------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee in accordance with the applicable requirements of Section 6.11
shall not have been delivered to the Company and the resigning Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to
the Trustee and to the Company.
(d) If at any time:
97
(i) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company, any
Guarantor or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company or any Guarantor, in each case by a
Board Resolution, may remove the Trustee, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment
98
in accordance with the applicable requirements of Section 6.11, become the
successor Trustee and supersede the successor Trustee appointed by the
Company. If no successor Trustee shall have been so appointed by the
Company or the Holders and accepted appointment in accordance with the
applicable requirements of Section 6.11, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.6. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
(g) The resignation or removal of the Trustee pursuant to this
Section 6.10 shall not affect the obligation of the Company to indemnify
the Trustee pursuant to Section 6.7(3) in connection with the exercise or
performance by the Trustee prior to its resignation or removal of any of
its powers or duties hereunder.
(h) No Trustee under this Indenture shall be liable for any action or
omission of any successor Trustee.
SECTION 6.11 Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of
99
the retiring Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12 Merger, Conversion, Consolidation
or Succession to Business.
-------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
--------
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
100
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.13 Preferential Collection of Claims
Against the Company or a Guarantor.
----------------------------------
If and when the Trustee shall be or become a creditor of the Company
or a Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company or such Guarantor (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or partial purchase or pursuant to Section 3.6, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $100,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating
101
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
--------
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6, to all Holders as their names
and addresses appear in the Security Register. Any successor Authenticating
102
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
Dated:
State Street Bank and Trust Company
As Trustee
By: ____________________________________
As Authenticating Agent
By: ____________________________________
Authorized Signatory
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ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 7.1 Company to Furnish Trustee
Names and Addresses of Holders.
------------------------------
The Company will furnish or cause to be furnished to the Trustee a
list of the names and addresses of the Holders in such form as the Trustee may
reasonably request in writing, within 30 days after the receipt by the Company
of any such request, as of a date not more than 15 days prior to the time such
list is furnished; excluding from any such list names and addresses received by
---------
the Trustee in its capacity as Security Registrar.
SECTION 7.2 Preservation of Information;
Communications to Holders.
-------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar, if so acting.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company, any Guarantor
nor the Trustee nor any agent of either of them shall be held
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accountable by reason of any disclosure of information as to the names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 7.3 Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year commencing May 15, 1999,
the Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture to the extent required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 7.4 Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to the Trust Indenture Act; provided
--------
that any such information, documents or reports required to be filed with the
- ----
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
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ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.1 Company May Consolidate,
Etc. Only on Certain Terms.
--------------------------
(A) The Company will not, in any transaction or series of
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any Person or Persons, and (B) the
Company will not permit any of its Restricted Subsidiaries to enter into any
such transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of the Company or the Company and its Restricted
Subsidiaries, taken as a whole, to any other Person or Persons, unless, in each
of cases (A) and (B), at the time and after giving effect thereto:
(1) either:
(x) if the transaction or transactions is a merger or consolidation,
the Company, or such Restricted Subsidiary, as the case may be, shall
be the surviving Person of such merger or consolidation, or
(y) the Person formed by such consolidation or into which the Company,
or such Restricted Subsidiary, as the case may be, is merged or to
which the properties and assets of the Company or such Restricted
Subsidiary, as the case may be, substantially as an entirety, are
transferred (any such surviving Person or
106
transferee Person being the "Surviving Entity") shall be a corporation
organized and existing under the laws of the United States of America,
any state thereof or the District of Columbia and shall expressly
assume by a supplemental indenture executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of
the Company or such Restricted Subsidiary, as the case may be, under
the Securities, this Indenture and the Registration Rights Agreement
and this Indenture, the Securities, the Guarantees and the
Registration Rights Agreement shall remain in full force and effect;
(2) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with or
in respect of such transaction or series of transactions), no Default or
Event of Default shall have occurred and be continuing; and
(3) except in the case of any merger of the Company with any wholly-owned
Subsidiary of the Company or any merger of a wholly owned Restricted
Subsidiary of the Company with and into a Guarantor or merger of Guarantors
(and in each case, with no other Persons), the Company or the Surviving
Entity, as the case may be, after giving effect to such transaction or
series of transactions on a pro forma basis (including, without limitation,
any Indebtedness incurred or anticipated to be incurred in connection with
or in respect of such transaction or series of transactions), could incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness) under
Section 10.8 (assuming a market rate of interest with respect to such
additional Indebtedness).
107
In connection with any consolidation, merger, transfer, lease,
assignment or other disposition contemplated by the foregoing provisions of this
Section 8.1, the Company shall deliver, or cause to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officer's Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer, lease, assignment, or other disposition and the
supplemental indenture in respect thereof (required under clause (1)(y) of this
Section 8.1) comply with the requirements of this Indenture. Each such
Officer's Certificate shall set forth the manner of determination of the ability
to incur Indebtedness in accordance with clause (3) of this Section 8.1.
SECTION 8.2 Successor Substituted.
---------------------
Except as otherwise provided by Section 13.5, upon any consolidation
or merger, or any sale, assignment, conveyance, transfer, lease or disposition
of all or substantially all of the properties and assets of the Company in
accordance with Section 8.1, the successor Person formed by such consolidation
or into which the Company or a Restricted Subsidiary, as the case may be, is
merged or the successor Person to which such sale, assignment, conveyance,
transfer, lease or disposition is made shall succeed to, and be substituted for,
and may exercise every right and power of the Company under the Securities, this
Indenture and/or the Registration Rights Agreement, as applicable, with the same
effect as if such successor had been named as the Company in the Securities,
this Indenture and/or in the Registration Rights Agreement, as the case may be
and, except in the case of a lease, the Company, or such Restricted Subsidiary,
as the case may be, shall be released and discharged from its obligations
thereunder.
108
For all purposes of this Indenture and the Securities (including the
provisions of this Article VIII and Sections 10.8, 10.9 and 10.12), Subsidiaries
of any Surviving Entity shall, upon consummation of such transaction or series
of related transactions, become Restricted Subsidiaries unless and until
designated Unrestricted Subsidiaries pursuant to and in accordance with Section
10.18 and all Indebtedness, and all Liens on property or assets, of the Company,
and the Restricted Subsidiaries, as the case may be, in existence immediately
prior to such transaction or series of related transactions will be deemed to
have been incurred upon consummation of such transaction or series of related
transactions.
ARTICLE IX
Amendments; Waivers; Supplemental Indentures
SECTION 9.1 Amendments, Waivers and Supplemental
Indentures Without Consent of Holders.
-------------------------------------
Without the consent of any Holders, the Company and each Guarantor,
when authorized by Board Resolutions, and the Trustee, at any time and from time
to time, may together amend, waive or supplement this Indenture, for any of the
following purposes:
(i) to evidence the succession of another Person to the Company or a
Guarantor and the assumption by any such successor of the covenants of the
Company or such Guarantor herein and in the Securities or such Guarantor's
Guaranty and to evidence the assumption of obligations under this Indenture
and a Guaranty pursuant to Section 10.17; or
109
(ii) to add to the covenants of the Company or a Guarantor for the
benefit of the Holders, or to surrender any right or power herein conferred
upon the Company or a Guarantor; or
(iii) to secure the Securities pursuant to the requirements of Section
10.12 or otherwise; or
(iv) to comply with any requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act; or
(v) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture,
provided that (a) such amendment, waiver or supplement does not adversely affect
- -------- ----
the rights of any Holder of Securities and (b) the Company shall have delivered
to the Trustee an Opinion of Counsel stating that such action pursuant to
clauses (i), (ii), (iii), (iv) or (v) above is permitted by this Indenture. The
Trustee shall not be obligated to enter into any such amendment or supplemental
indenture that adversely affects its own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.2 Modifications, Amendments and
Supplemental Indentures with Consent of Holders.
------------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company and the Guarantors,
110
when authorized by Board Resolutions, and the Trustee may together modify, amend
or supplement this Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such modification, amendment or supplemental
- -------- -------
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(i) reduce the principal amount of, extend the Stated Maturity of or
alter the redemption provisions of, the Securities,
(ii) change the currency in which any Securities or any premium or the
interest thereon is payable,
(iii) reduce the percentage in principal amount of Outstanding
Securities that must consent to an amendment, supplement or waiver or
consent to take any action under the Indenture or the Securities or any
Guaranty,
(iv) impair the right to institute suit for the enforcement of any
payment on or with respect to the Securities or any Guaranty,
(v) waive a default in payment with respect to the Securities or any
Guaranty,
(vi) amend, change or modify the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control or
make and consummate an Asset Sale Offer with respect to any Asset Sale or
modify any of the provisions or definitions with respect thereto,
111
(vii) reduce or change the rate or time for payment of interest on the
Securities, or
(viii) modify or change any provision of this Indenture affecting the
ranking of the Securities or any Guaranty in a manner adverse to the
Holders of the Securities.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment or supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
The Trustee shall join with the Company and each Guarantor in the
execution of such amended or supplemental indenture unless such amended or
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion but shall not be obligated to enter into such amendment or
supplemental indenture.
In addition, no modification, amendment or supplement to the
provisions of Article XIV which is adverse to the interests of the lenders under
the Credit Facility or the Term Loan shall be made without the consent of the
representatives of such lenders.
SECTION 9.3 Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture.
112
The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise; provided that the Trustee shall enter into and
-------- ----
execute all other supplemental indentures which satisfy all applicable
conditions under this Article IX.
SECTION 9.4 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Securities
to Supplemental Indentures.
--------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture, provided that any failure by the
-------- ----
Trustee to make such notation shall not affect the validity of the matter
provided for in such supplemental indenture or any Security or Guarantee
hereunder. If the Company shall so determine, new Securities or Guarantees so
modified as to conform, in the opinion of the Trustee, the Guarantors and the
Company, to any such supplemental indenture
113
may be prepared and executed by the Company or Guarantor and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
SECTION 9.7 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 8.1, provided pursuant to Section
9.1(ii) and set forth in Sections 10.4 to 10.12 and 10.15 to 10.18, inclusive,
if before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect; provided, however, with respect to an Offer as to which an
-------- -------
Offer to Purchase has been mailed, no such waiver may be made or shall be
effective against any Holder tendering Securities pursuant to such Offer, and
the Company may not omit to comply with the terms of such Offer as to such
Holder.
SECTION 9.8 No Liability for Certain Persons.
--------------------------------
No director, officer, employee, or stockholder of Holdings or the Company,
nor any director, officer or employees of any Guarantor, as such, shall have any
liability for any obligations of the Company or any Guarantor under the
Securities, the Guarantees or this Indenture based on or by reason of such
obligations or their creation. Each Holder by accepting a Security waives and
releases all such liability. The foregoing waiver and release is an integral
part of the
114
consideration for the issuance of the Securities and the Guarantees.
ARTICLE X
Covenants
SECTION 10.1 Payment of Principal,
Premium and Interest.
--------------------
The Company shall duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
SECTION 10.2 Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company or any Guarantor
in respect of the Securities, the Guarantees and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at a Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands. In the event any such
notice or demands are so made or served on the Trustee, the Trustee shall
promptly forward copies thereof to the Company.
115
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
-------- -------
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 10.3 Money for Security Payments
to be Held in Trust.
-------------------
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any) or interest
on any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, the Company
will, prior to 11:00 a.m. New York City time on each due date of the principal
of (and premium, if any) or interest on any Securities, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
116
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will: (i) comply with the provisions of the Trust Indenture
Act applicable to it as Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by such Paying Agent; and, upon
such payment by any Paying Agent (other than the Company) to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or
-------- -------
117
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 10.4 Existence; Activities.
---------------------
Subject to Article VIII, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and material franchises; provided, however, that
-------- -------
the Company shall not be required to preserve any such right or franchise if the
Board of Directors of the Company in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 10.5 Maintenance of Properties.
-------------------------
The Company shall cause all material properties used in the conduct of
its business or the business of any Restricted Subsidiary to be maintained and
kept in good condition, repair and working order (regular wear and tear
excepted), 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, however, that nothing in this Section shall
-------- -------
prevent the Company from disposing of any asset (subject to compliance with
Section 10.14) or from discontinuing the operation or maintenance of any of such
material properties
118
if such discontinuance is, as determined by the Company in good faith, desirable
in the conduct of its business or the business of any Restricted Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 10.6 Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its Restricted
Subsidiaries or upon the income, profits or property of the Company or any of
its Restricted Subsidiaries, and (2) all lawful material claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon
property of the Company or any of its Restricted Subsidiaries; provided,
--------
however, that the Company shall not be required to pay or discharge or cause to
- -------
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 10.7 Maintenance of Insurance.
------------------------
The Company shall, and shall cause its Restricted Subsidiaries to,
keep at all times all of their material properties which are of an insurable
nature insured against loss or damage with insurers believed by the Company to
be responsible to the extent that property of similar character is usually so
insured by corporations similarly situated and owning like properties in
accordance with good business practice. The Company shall, and shall cause its
Restricted Subsidiaries to, use the proceeds from any such insurance policy to
repair, replace or otherwise restore all material properties to which such
proceeds relate, provided, however, that the Company shall not be required to
-------- -------
repair, replace or otherwise restore any
119
such material property if the Company in good faith determines that such
inaction is desirable in the conduct of the business of the Company or any
Restricted Subsidiary and not disadvantageous in any material respect to the
Holders.
SECTION 10.8 Limitation on Indebtedness.
--------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or in any manner become directly or indirectly liable, contingently or otherwise
(in each case, to "incur"), for the payment of any Indebtedness (including any
Acquired Indebtedness) other than Permitted Indebtedness; provided, however,
-------- -------
that (i) the Company and any Guarantor will be permitted to incur Indebtedness
(including Acquired Indebtedness), and (ii) a Restricted Subsidiary will be
permitted to incur Acquired Indebtedness, if in each case, after giving pro
forma effect to (1) the incurrence of such Indebtedness and (if applicable) the
application of the net proceeds therefrom, including to refinance other
Indebtedness, as if such Indebtedness were incurred at the beginning of the four
full fiscal quarters immediately preceding such incurrence, taken as one period;
(2) the incurrence, repayment or retirement of any other Indebtedness by the
Company and its Restricted Subsidiaries since the first day of such four-quarter
period as if such Indebtedness was incurred, repaid or retired at the beginning
of such four-quarter period (except that, in making such computation, the amount
of Indebtedness under any revolving credit facility shall be computed based upon
the average daily balance of such Indebtedness during such four-quarter period);
and (3) any Asset Sale or Asset Acquisition occurring since the first day of
such four-quarter period (including to the date of calculation) as if such
acquisition or disposition occurred at the beginning of such four-quarter
period,
120
the Consolidated Fixed Charge Coverage Ratio of the Company is at least
2:1.
SECTION 10.9 Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any other distribution or
payment on or in respect of Capital Stock of the Company or any of its
Restricted Subsidiaries or make any payment to the direct or indirect
holders (in their capacities as such) of Capital Stock of the Company or
any of its Restricted Subsidiaries (other than dividends or distributions
payable solely in Capital Stock of the Company (other than Redeemable
Capital Stock) or in options, warrants or other rights to purchase Capital
Stock of the Company (other than Redeemable Capital Stock)) (other than the
declaration or payment of dividends or other distributions to the extent
declared or paid to the Company or any Restricted Subsidiary);
(b) purchase, redeem, defease or otherwise acquire or retire for
value any Capital Stock of the Company or any of its Restricted
Subsidiaries or any options, warrants, or other rights to purchase any such
Capital Stock (other than any securities owned by the Company or a
Restricted Subsidiary);
(c) make any principal payment on, or purchase, defease, repurchase,
redeem or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled repayment, scheduled sinking fund payment or other
Stated Maturity, any Subordinated Indebtedness (other than any such
Subordinated
121
Indebtedness owned by the Company or a Restricted Subsidiary); or
(d) make any Investment (other than any Permitted Investment) in any
Person,
(such payments or Investments described in the preceding clauses (a), (b),
(c) and (d) are collectively referred to as "Restricted Payments"), unless,
after giving effect to the proposed Restricted Payment (the amount of any
such Restricted Payment, if other than cash, shall be the Fair Market Value
of the asset(s) proposed to be transferred by the Company or such
Restricted Subsidiary, as the case may be, pursuant to such Restricted
Payment), (A) no Default or Event of Default shall have occurred and be
continuing, (B) immediately after giving effect to such Restricted Payment,
the Company would be able to incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) (assuming a market rate of interest with
respect to such additional Indebtedness) and (C) the aggregate amount of
all Restricted Payments declared or made from and after the Issue Date
would not exceed the sum of:
(1) 50% of the aggregate Consolidated Net Income of the Company
accrued on a cumulative basis during the period beginning on May 22, 1998
and ending on the last day of the fiscal quarter of the Company immediately
preceding the date of such proposed Restricted Payment (or, if such
aggregate cumulative Consolidated Net Income of the Company for such period
shall be a deficit, minus 100% of such deficit);
(2) the aggregate net cash proceeds received by the Company as
capital contributions to the Company after May 22, 1998 and which
constitute
122
shareholders' equity of the Company in accordance with GAAP;
(3) the aggregate net cash proceeds received by the Company from the
issuance or sale of Capital Stock (excluding Redeemable Capital Stock) of
the Company to any Person (other than to a Subsidiary of the Company) after
May 22, 1998;
(4) the aggregate net cash proceeds received by the Company from any
Person (other than a Subsidiary of the Company) upon the exercise of any
options, warrants or rights to purchase shares of Capital Stock (other than
Redeemable Capital Stock) of the Company after May 22, 1998;
(5) the aggregate net cash proceeds received after May 22, 1998 by
the Company from any Person (other than a Subsidiary of the Company) for
debt securities that have been converted or exchanged into or for Capital
Stock of the Company (other than Redeemable Capital Stock) (to the extent
such debt securities were originally sold for cash) plus the aggregate
amount of cash received by the Company (other than from a Subsidiary of the
Company) in connection with such conversion or exchange;
(6) in the case of the disposition or repayment of any Investment
constituting a Restricted Payment after May 22, 1998, an amount equal to
the lesser of the return of capital with respect to such Investment and the
initial amount of such Investment, in either case, less the cost of the
disposition of such Investment; and
(7) so long as the Designation (as defined in Section 10.18) thereof
was treated as a Restricted Payment made after May 22, 1998, with respect
to any Unrestricted Subsidiary that has been
123
redesignated as a Restricted Subsidiary after the Issue Date in accordance
with Section 10.18 below, the Fair Market Value of the Company's interest
in such Subsidiary, provided that such amount shall not in any case exceed
-------- ----
the Designation Amount (as defined in Section 10.18) with respect to such
Restricted Subsidiary upon its Designation,
minus:
the Designation Amount (measured as of the date of Designation) with
respect to any Restricted Subsidiary of the Company which has been
designated as an Unrestricted Subsidiary after May 22, 1998 in accordance
with Section 10.18 below.
For purposes of the preceding clause (C)(4), the value of the aggregate net
proceeds received by the Company upon the issuance of Capital Stock upon the
exercise of options, warrants or rights will be the net cash proceeds received
upon the issuance of such options, warrants or rights plus the incremental
amount received by the Company upon the exercise thereof.
None of the foregoing provisions shall prohibit, so long, in the case of
clauses (ii), (iii), (v), (vi) and (vii) below, as there is no Default or Event
of Default continuing, (i) the payment of any dividend or distribution within 60
days after the date of its declaration, if at the date of declaration such
payment would be permitted by the first paragraph of this covenant; (ii) the
redemption, repurchase or other acquisition or retirement of any shares of any
class of Capital Stock of the Company in exchange for, or out of the net cash
proceeds of, a substantially concurrent issue and sale of other shares of
Capital Stock of the Company (other than Redeemable Capital Stock) to any Person
(other than to a Subsidiary of the Company); provided, however, that such net
-------- -------
cash proceeds are
124
excluded from clause (C) of the first paragraph of this covenant; (iii) any
redemption, repurchase or other acquisition or retirement of Subordinated
Indebtedness by exchange for, or out of the net cash proceeds of, a
substantially concurrent issue and sale of (1) Capital Stock (other than
Redeemable Capital Stock) of the Company to any Person (other than to a
Subsidiary of the Company); provided, however, that any such net cash proceeds
-------- -------
are excluded from clause (C) of the first paragraph of this covenant; or (2)
Indebtedness of the Company so long as such Indebtedness is Subordinated
Indebtedness which (w) has no scheduled principal payment prior to the 91st day
after the Maturity Date, (x) has an Average Life to Stated Maturity greater than
the remaining Average Life to Stated Maturity of the Securities and (y) is
subordinated to the Securities in the same manner and to the same extent as the
Subordinated Indebtedness so purchased, exchanged, redeemed, acquired or
retired; (iv) Investments constituting Restricted Payments made as a result of
the receipt of non-cash consideration from any Asset Sale or other sale of
assets or property made pursuant to and in compliance with this Indenture; (v)
payments to purchase Capital Stock of the Company from officers of the Company,
pursuant to agreements in effect as of the Issue Date, in an amount not to
exceed $15,000,000 in the aggregate; (vi) payments (other than those covered by
clause (v)) to purchase Capital Stock of the Company from management or
employees of the Company or any of its Subsidiaries, or their authorized
representatives, upon the death, disability or termination of employment of such
employees, in aggregate amounts under this clause (vi) not to exceed $1,000,000
in any fiscal year of the Company,(vii) payments to Holdings in an amount
sufficient to permit it to make scheduled payments of interest on its 62%
Convertible Subordinated Debentures due August 1, 2028, issued to United Rentals
Trust I, (viii) payments to Holdings in an amount sufficient to enable Holdings
to pay (1) its taxes, legal, accounting,
125
payroll, benefits and corporate overhead expenses (including Commission, stock
exchange and transfer agency fees and expenses), and expenses of United Rentals
Trust I payable by Holdings pursuant to the terms of the trust agreement
governing such trust, (2) trade, lease, payroll, benefits and other obligations
in respect of goods to be delivered to, services (including management and
consulting services) performed for and properties used by, the Company and its
Restricted Subsidiaries, (3) the purchase price for Investments in other
Persons, provided that promptly following such Investment either (x) such other
Person either becomes a Restricted Subsidiary or is merged or consolidated with,
or transfers or conveys all or substantially all of its assets to, the Company
or a Restricted Subsidiary, or (y) such Investment would otherwise be permitted
under this Indenture if made by the Company and such Investment is contributed
or transferred by Holdings to the Company or a Restricted Subsidiary and (4)
reasonable and customary incidental expenses (other than the expenses described
in the preceding clause (1)) not to exceed $500,000 in any fiscal year of the
Company and (ix) the payment of any dividend or distribution by a Restricted
Subsidiary to the holders of its Capital Stock on a pro rata basis. Any
--------
payments made pursuant to clauses (i), (v), (vi) or (vii) of this paragraph
shall be taken into account in calculating the amount of Restricted Payments
made from and after May 22, 1998.
SECTION 10.10 Limitation on Preferred Stock
of Restricted Subsidiaries.
--------------------------
The Company shall not permit any Restricted Subsidiary to issue any
Preferred Stock other than Preferred Stock issued to the Company or a wholly-
owned Restricted Subsidiary. The Company shall not sell, transfer or otherwise
dispose of Preferred Stock issued by a Restricted Subsidiary of the Company or
permit a Restricted Subsidiary to sell, transfer or otherwise
126
dispose of Preferred Stock issued by a wholly-owned Restricted Subsidiary, other
than to the Company or a Restricted Subsidiary. Notwithstanding the foregoing,
nothing in this covenant shall prohibit Preferred Stock (other than Redeemable
Capital Stock) issued by a Person prior to the time (A) such Person becomes a
Restricted Subsidiary of the Company, (B) such Person merges with or into a
Restricted Subsidiary of the Company or (C) a Restricted Subsidiary of the
Company merges with or into such Person; provided, that such Preferred Stock was
-------- ----
not issued or incurred by such Person in anticipation of a transaction
contemplated by subclause (A), (B), or (C) above.
SECTION 10.11 Limitation on Transactions
with Affiliates.
---------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into any transaction or series of
related transactions (including, without limitation, the sale, transfer,
disposition, purchase, exchange or lease of assets, property or services) with,
or for the benefit of, any of its Affiliates (other than Restricted
Subsidiaries), except (a) on terms that are no less favorable to the Company or
such Subsidiary, as the case may be, than those which could have been obtained
in a comparable transaction at such time from Persons who are not Affiliates of
the Company, (b) with respect to a transaction or series of related transactions
involving aggregate payments or value equal to or greater than $2,000,000 the
Company shall have delivered an Officer's Certificate to the Trustee certifying
that such transaction or transactions comply with the preceding clause (a), and
(c) with respect to a transaction or series of related transactions involving
aggregate payments or value equal to or greater than $5,000,000, such
transaction or transactions shall have been approved by a majority
127
of the Disinterested Members of the Board of Directors of the Company.
Notwithstanding the foregoing, the restrictions set forth in this
covenant shall not apply to (i) transactions with or among the Company and the
Restricted Subsidiaries of the Company, (ii) customary directors' fees,
indemnification and similar arrangements, consulting fees, employee salaries,
bonuses or employment agreements, compensation or employee benefit arrangements
and incentive arrangements with any officer, director or employee of the Company
or any Restricted Subsidiary entered into in the ordinary course of business,
(iii) any dividends made in compliance with Section 10.9, (iv) loans and
advances to officers, directors and employees of the Company or any Restricted
Subsidiary for travel, entertainment, moving and other relocation expenses, in
each case made in the ordinary course of business, (v) the incurrence of
intercompany Indebtedness which constitutes Permitted Indebtedness, (vi)
transactions pursuant to agreements in effect on the Issue Date, (vii) the
purchase of equipment for its Fair Market Value from Terex Corporation or its
Affiliates in the ordinary course of business of each of Terex Corporation and
the Company and (viii) transactions described in, or permitted by, clauses (vii)
and (viii) of the final paragraph of Section 10.9.
SECTION 10.12 Limitation on Liens.
-------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Liens of any kind
against or upon any of its property or assets, or any proceeds therefrom, unless
the Securities are equally and ratably secured (except that Liens securing
Subordinated Indebtedness shall be expressly subordinate to Liens securing the
Securities to the same extent such Subordinated
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Indebtedness is subordinate to the Securities), except for (a) Liens securing
Senior Indebtedness or Guarantor Senior Indebtedness; (b) Liens securing the
Securities; (c) Liens in favor of the Company on assets of any Subsidiary of the
Company; (d) Liens securing Indebtedness which is incurred to refinance
Indebtedness which has been secured by a Lien permitted under the Indenture and
which has been incurred in accordance with the provisions of this Indenture;
provided, however, that such Liens do not extend to or cover any property
- -------- -------
or assets of the Company or any its Restricted Subsidiaries not securing the
Indebtedness so refinanced; and (e) Permitted Liens.
SECTION 10.13 Change of Control.
-----------------
On or before the 30th day after the date of the occurrence of a Change
of Control (the "Change of Control Date"), the Company shall make an Offer to
Purchase (a "Change of Control Offer") on a Business Day not more than 60 nor
less than 30 days following the occurrence of the Change of Control, (the
"Change of Control Purchase Date") all of the then Outstanding Securities
tendered at a purchase price (the "Change of Control Purchase Price") equal to
101% of the principal amount thereof plus accrued and unpaid interest, if any,
thereon to the Change of Control Purchase Date. The Company shall be required
to purchase all Securities tendered into the Change of Control Offer and not
withdrawn.
On the Change of Control Purchase Date, the Company shall (i) accept
for payment Securities or portions thereof (not less than $1,000 principal
amount and integral multiples thereof) tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the purchase price of all Securities or
portions thereof so tendered and accepted and (iii) deliver to
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the Trustee the Securities so accepted together with an Officer's Certificate
setting forth the Securities or portions thereof tendered to and accepted for
payment by the Company. The Paying Agent shall promptly mail or deliver to the
Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and make available for
delivery to such Holders a new Security of like tenor equal in principal amount
to any unpurchased portion of the Security surrendered. Any Securities not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Change of
Control Offer not later than the third Business Day following the Change of
Control Purchase Date.
The Company shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements
applicable to a Change of Control Offer made by the Company and purchases all
Securities validly tendered and not withdrawn under such Change of Control
Offer.
The Company shall comply with Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder, to the extent such laws or
regulations are applicable, in the event that a Change of Control occurs and the
Company is required to purchase Securities as described above.
SECTION 10.14 Disposition of Proceeds of Asset Sales.
--------------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any Asset Sale unless (a) the Company or such Restricted
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value
130
of the shares or assets sold or otherwise disposed of and (b) at least 75% of
such consideration consists of cash or Cash Equivalents or Replacement Assets;
provided, however, that (i) the amount of any liabilities (as shown on the most
- -------- -------
recent balance sheet of the Company or such Restricted Subsidiary) of the
Company or such Restricted Subsidiary that are assumed by the transferee of such
assets and (ii) any securities, notes or other obligations received by the
Company or such Restricted Subsidiary from such transferee that are converted
within 30 days into cash or Cash Equivalents (to the extent of the cash or Cash
Equivalents received) shall be deemed to be cash for the purposes of this
provision; provided further, that the 75% limitation referred to in clause (b)
-------- -------
will not apply to any Asset Sale in which the cash or Cash Equivalent portion of
the consideration received therefrom, determined in accordance with the
foregoing provision, is equal to or greater than what the after-tax proceeds
would have been had such Asset Sale complied with the aforementioned 75%
limitation. To the extent that the Net Cash Proceeds of any Asset Sale are not
required to be applied to repay, and permanently reduce the commitments under,
Senior Indebtedness of the Company, or are not so applied, the Company or such
Restricted Subsidiary, as the case may be, may apply the Net Cash Proceeds from
such Asset Sale, within 360 days of such Asset Sale, to an investment in
properties and assets that replace the properties and assets that were the
subject of such Asset Sale or in properties and assets that are used or useful
in the business of the Company and its Restricted Subsidiaries conducted at such
time or in businesses reasonably related thereto or in Capital Stock of a
Person, the principal portion of whose assets consist of such property or assets
("Replacement Assets"). Any Net Cash Proceeds from any Asset Sale that are
neither used to repay, and permanently reduce the commitments under, Senior
Indebtedness of the Company, nor invested in Replacement Assets within such 360-
day period constitute
131
"Excess Proceeds" subject to disposition as provided below.
When the aggregate amount of Excess Proceeds equals or exceeds $10,000,000,
the Company shall make an offer to purchase (an "Asset Sale Offer"), from all
holders of the Securities, an aggregate principal amount of Securities equal to
such Excess Proceeds, at a price in cash equal to 100% of the outstanding
principal amount thereof plus accrued and unpaid interest, if any, thereon to
the Purchase Date (the "Asset Sale Offer Price"). To the extent that the
aggregate principal amount of Securities tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, the Company may use such deficiency for
general corporate purposes. The Securities shall be purchased by the Company,
at the option of the Holder thereof, in whole or in part in integral multiples
of $1,000, on a date that is not earlier than 30 days and not later than 60 days
from the date the notice is given to Holders, or such later date as may be
necessary for the Company to comply with the requirements under the Exchange
Act. If Securities purchasable at an aggregate Purchase Price in excess of the
Purchase Amount are tendered and not withdrawn pursuant to the Asset Sale Offer
to Purchase, the Company shall purchase Securities on a pro rata basis, based on
--------
the Purchase Price therefor, or such other method as the Trustee shall deem fair
and appropriate (subject in each case to applicable rules of the Depositary and
any securities exchange upon which the Securities may then be listed), with such
adjustments as may be deemed appropriate so that only Securities in
denominations of $1,000 principal face amount or integral multiples thereof
shall be purchased. Notwithstanding the foregoing, if the Company is required
to commence an Asset Sale Offer at any time when securities of the Company
ranking pari passu in right of payment with the Securities are outstanding and
the terms of such securities provide that a similar offer must be made with
respect to such
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other securities, then the Asset Sale Offer for the Securities shall be made
concurrently with such other offers and securities of each issue will be
accepted on a pro rata basis in proportion to the aggregate principal amount of
securities of each issue which the holders thereof elect to have purchased. Any
Asset Sale Offer will be made only to the extent permitted under, and subject to
prior compliance with, the terms of agreements governing Senior Indebtedness.
Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be
reset to zero.
On the Asset Sale Offer Purchase Date, the Company shall (i) accept
for payment (subject to pro ration as described in the Offer to Purchase)
Securities or portions thereof tendered pursuant to the Asset Sale Offer, (ii)
deposit with the Paying Agent money, in immediately available funds, sufficient
to pay the purchase price of all Securities or portions thereof so tendered and
accepted and (iii) deliver to the Trustee the Securities so accepted together
with an Officer's Certificate setting forth the Securities or portions thereof
tendered to and accepted for payment by the Company. The Paying Agent shall
promptly mail or deliver to the Holders of Securities so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and make available for delivery to such Holders a new Security of like tenor
equal in principal amount to any unpurchased portion of the Security
surrendered. Any Securities not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Asset Sale Offer not later than the third business
Day following the Asset Sale Offer Purchase Date.
Whenever the aggregate amount of Excess Proceeds received by the
Company and its Restricted Subsidiaries exceeds $10,000,000, such Excess
Proceeds shall,
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prior to the purchase of Securities, be set aside by the Company or such
Restricted Subsidiary, as the case may be, in a separate account pending (i)
deposit with the Paying Agent of the amount required to purchase the Securities
tendered in an Asset Sale Offer or (ii) delivery by the Company of the Asset
Sale Offer Price to the Holders of the Securities validly tendered and not
withdrawn pursuant to an Asset Sale Offer. Such Excess Proceeds may be invested
in Cash Equivalents, as directed by the Company, having a maturity date which is
not later than the earliest possible date for purchase of Securities pursuant to
the Asset Sale Offer. The Company will be entitled to any interest or dividends
accrued, earned or paid on such Cash Equivalents.
The Company shall comply with Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder, to the extent such laws
and regulations are applicable, in the event that an Asset Sale occurs and the
Company is required to purchase Securities as described above.
SECTION 10.15 Limitation on Dividends and
Other Payment Restrictions
Affecting Restricted Subsidiaries.
---------------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (a) pay dividends, in
cash or otherwise, or make any other distributions on or in respect of its
Capital Stock or any other interest or participation in, or measured by, its
profits, (b) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary of the Company, (c) make loans or advances to the Company or any
other Restricted Subsidiary of the Company, (d) transfer any of its properties
or assets to the
134
Company or any other Restricted Subsidiary of the Company or (e) guarantee any
Indebtedness of the Company or any other Restricted Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by reason of (i)
applicable law or any applicable rule, regulation or order, (ii) customary non-
assignment provisions of any contract or any lease governing a leasehold
interest of the Company or any Restricted Subsidiary of the Company, (iii)
customary restrictions on transfers of property subject to a Lien permitted
under this Indenture, (iv) the Credit Facility and the Term Loan, as in effect
on the Issue Date, (v) any agreement or other instrument of a Person acquired by
the Company or any Restricted Subsidiary of the Company in existence at the time
of such acquisition (but not created in contemplation thereof), which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the
Person, so acquired, (vi) an agreement entered into for the sale or disposition
of Capital Stock or assets of a Restricted Subsidiary or an agreement entered
into for the sale of specified assets (in either case, so long as such
encumbrance or restriction, by its terms, terminates on the earlier of the
termination of such agreement or the consummation of such agreement and so long
as such restriction applies only to the Capital Stock or assets to be sold),
(vii) any agreement in effect on the Issue Date, (viii) this Indenture and the
Guarantees, (ix) the indentures governing the 9 1/2% Notes and the 8.80% Notes
and (x) any agreement that amends, extends, refinances, renews or replaces any
agreement described in the foregoing clauses, provided that the terms and
-------- ----
conditions of any such agreement are not materially less favorable to the
Holders of the Securities with respect to such dividend and payment restrictions
than those under or pursuant to the agreement amended, extended, refinanced,
renewed or replaced.
135
SECTION 10.16 Limitation on Issuance of
Subordinated Indebtedness.
-------------------------
The Company shall not, directly or indirectly, incur any Indebtedness
(including Acquired Indebtedness) that is subordinate in right of payment to any
Indebtedness of the Company and senior in right of payment to the Securities.
SECTION 10.17 Additional Subsidiary Guarantees.
--------------------------------
If the Company or any of its Restricted Subsidiaries acquires, creates
or designates another United States Restricted Subsidiary, then such newly
acquired, created or designated Restricted Subsidiary shall, within 30 days
after the date of its acquisition, creation or designation, whichever is later,
(i) execute and deliver to the Trustee a supplemental indenture in form
reasonably satisfactory to the Trustee pursuant to which such Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Securities
and this Indenture on the terms set forth in this Indenture and (ii) deliver to
the Trustee an opinion of counsel that such supplemental indenture has been duly
authorized, executed and delivered by such Subsidiary and constitutes a legal,
valid, binding and enforceable obligation of such Subsidiary, subject to normal
exceptions, provided that if such Subsidiary (a) is not incorporated or
-------- ----
organized in the State of New York or the State of Delaware and (b) is not a
significant Subsidiary (as defined in Rule 1-02(w) of Regulation S-X under the
Securities Act, provided, however, that this determination shall be made by
-------- -------
reference to the most recent pro forma consolidated financial statements of the
Company filed under the Exchange Act, as permitted by Rule 3-05(b)(3) of
Regulation S-X), of the Company, such opinion of counsel may assume due
authorization, execution and delivery of such supplemental indenture.
Thereafter, such Subsidiary shall be a Guarantor for all purposes of this
Indenture.
136
SECTION 10.18 Limitations on Designation
of Unrestricted Subsidiaries.
----------------------------
(a) The Company may designate after the Issue Date any Restricted
Subsidiary as an "Unrestricted Subsidiary" under this Indenture (a
"Designation") only if:
(i) no Default shall have occurred and be continuing at the time of
or after giving effect to such Designation;
(ii) the Company would be permitted to make an Investment (other than
a Permitted Investment, except a Permitted Investment covered by
clause (x) of the definition thereof) at the time of Designation
(assuming the effectiveness of such Designation) pursuant to the first
paragraph of Section 10.9 in an amount (the "Designation Amount")
equal to the Fair Market Value of the Company's interest in such
Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under this Indenture to incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 10.8 at the time of such Designation (assuming the
effectiveness of such Designation).
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
10.9 for all purposes of this Indenture in the Designation Amount.
137
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, at any time (x) provide credit support for or subject any of its
property or assets (other than the Capital Stock of any Unrestricted Subsidiary)
to the satisfaction of, any Indebtedness of any Unrestricted Subsidiary
(including any undertaking, agreement or instrument evidencing such
Indebtedness), (y) be directly or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary or (z) be directly or indirectly liable for any
Indebtedness which provides that the holder thereof may (upon notice, lapse of
time or both) declare a default thereon or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity upon the occurrence
of a default with respect to any Indebtedness of any Unrestricted Subsidiary
(including any right to take enforcement action against such Unrestricted
Subsidiary), except any non-recourse guarantee given solely to support the
pledge by the Company or any Restricted Subsidiary of the Capital Stock of an
Unrestricted Subsidiary. All Subsidiaries of Unrestricted Subsidiaries shall
automatically be deemed to be Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(i) no Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation, and
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred
at such time by a Restricted Subsidiary, have been permitted to be
incurred for all purposes of this Indenture.
138
(c) In the event the Company or a Restricted Subsidiary makes any
Investment in any Person which was not previously a Subsidiary and such
Person thereby becomes a Subsidiary, such Person shall automatically be an
Unrestricted Subsidiary and the Company may designate such Subsidiary as a
Restricted Subsidiary only if it meets the foregoing requirements of
clauses (i) and (ii) of paragraph (b).
(d) All Designations and Revocations must be evidenced by Board
Resolutions of the Company delivered to the Trustee certifying compliance
with the foregoing provisions.
SECTION 10.19 Provision of Financial Information.
----------------------------------
For so long as the Securities are outstanding, whether or not the
Company is subject to Section 13(a) or 15(d) of the Exchange Act, or any
successor provision thereto, the Company shall file with the Commission (if
permitted by Commission practice and applicable law and regulations) the annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to such Section 13(a) or 15(d) or
any successor provision thereto if the Company were so subject, such documents
to be filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which the Company would have been required so to
file such documents if the Company were so subject. If, notwithstanding the
preceding sentence, filing such documents by the Company with the Commission is
not permitted by Commission practice or applicable law or regulations, the
Company will transmit (or cause to be transmitted) by mail to the Trustee and
all holders of the Securities, as their names and addresses appear in the
Securities Register, copies of such documents within 15 days after the Required
Filing Date. In addition, for so long as any
139
Securities remain outstanding, the Company will furnish to the Holders of
Securities and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act, and, to any beneficial holder of Securities, if not
obtainable from the Commission, information of the type that would be filed with
the Commission pursuant to the foregoing provisions upon the request of any such
Holder.
SECTION 10.20 Statement by Officers as to
Default; Compliance Certificates .
--------------------------------
(a) The Company shall deliver to the Trustee, prior to March 31 in
each year commencing March 31, 1999, an Officer's Certificate, stating whether
or not to the best knowledge of the signers thereof the Company is in default in
the performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder), and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which he may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible and
in any event within five days after the Company becomes aware of the occurrence
of a Default or an Event of Default, an Officer's Certificate setting forth the
details of such Default or Event of Default, and the action which the Company
proposes to take with respect thereto.
140
ARTICLE XI
Redemption of Securities
SECTION 11.1 Right of Redemption .
-------------------
The Securities may be redeemed at the election of the Company, in the
amounts, at the times, at the Redemption Prices (together with any applicable
accrued and unpaid interest to the Redemption Date), and subject to the
conditions specified in the form of Security and hereinafter set forth.
SECTION 11.2 Applicability of Article .
------------------------
Redemption of Securities at the election of the Company, as permitted
by this Indenture and the provisions of the Securities, shall be made in
accordance with such provisions and this Article.
SECTION 11.3 Election to Redeem; Notice to Trustee .
-------------------------------------
The election of the Company to redeem any Securities pursuant to
Section 11.1 shall be evidenced by a Board Resolution. In the event of any
redemption at the election of the Company pursuant to Section 11.1, the Company
shall notify the Trustee, in case of a redemption of less than all the
Securities, at least 60 days, and in the case of a redemption of all the
Securities, at least 40 days, prior to the Redemption Date fixed by the Company
(in each case, unless a shorter notice shall be satisfactory to the Trustee)of
such Redemption Date and of the principal amount of Securities to be redeemed.
141
SECTION 11.4 Selection by Trustee of
Securities to Be Redeemed .
-------------------------
In the event that less than all of the Securities are to be redeemed
at any time, selection of such Securities for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed or, if the Securities are
not then listed on a national securities exchange, on a pro rata basis, by lot
--------
or by such method as the Trustee shall deem fair and appropriate (subject to the
rules of the Depositary); provided, however, that Securities shall only be
-------- -------
redeemable in amounts of $1,000 or an integral multiple of $1,000.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture and of the Securities, unless the
context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 11.5 Notice of Redemption .
--------------------
Notice of redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
142
All notices of redemption shall identify the Securities to be redeemed
(including, if used, CUSIP or CINS numbers) and shall state:
(i) the Redemption Date,
(ii) the Redemption Price,
(iii) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed,
(iv) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after such Redemption Date,
(v) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(vi) if the redemption is being made pursuant to the provisions of
the Securities regarding a Public Equity Offering, a brief description of
the transaction or transactions giving rise to such redemption, the nature
and amount of Qualified Equity Interests sold in such transaction or
transactions, the aggregate purchase price thereof and the net cash
proceeds therefrom available for such redemption, the date or dates on
which such transaction or transactions were completed and the percentage of
the aggregate principal amount of Outstanding Securities being redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by
143
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company and shall be irrevocable.
SECTION 11.6 Deposit of Redemption Price .
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any applicable accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 11.7 Securities Payable on Redemption Date .
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and any applicable
accrued interest) such Securities shall not bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with any
applicable accrued and unpaid interest to the Redemption Date; provided,
--------
however, that installments of interest whose Stated Maturity is on or prior to
- -------
the Redemption Date shall be payable to the Holders of such Securities, or one
or more predecessor securities, registered as such at the close of business on
the relevant record dates according to their terms and the provisions of Section
3.7.
If any Security called for redemption in accordance with the election
of the Company made pursuant
144
to Section 11.1 shall not be so paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate provided by the Security.
SECTION 11.8 Securities Redeemed in Part .
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 10.2 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount at Stated Maturity equal to and in
exchange for the unredeemed portion of the principal amount at Stated Maturity
of the Security so surrendered.
ARTICLE XII
Defeasance and Covenant Defeasance
SECTION 12.1 Company's Option to Effect
Defeasance or Covenant Defeasance.
---------------------------------
The Company may elect, at its option at any time, to have Section 12.2
or Section 12.3 applied to the Outstanding Securities (as a whole and not in
part) upon compliance with the conditions set forth below in this Article. Any
such election shall be evidenced by a Board Resolution.
145
SECTION 12.2 Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option to have this Section applied
to the Outstanding Securities (as a whole and not in part), the Company shall be
deemed to have been discharged from its obligations with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 12.4 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of Outstanding Securities to receive,
solely from the trust fund described in Section 12.4 and as more fully set forth
in such Section, payments in respect of the principal of, premium, if any, and
interest on such Securities when payments are due, (2) the Company's obligations
with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (3)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(4) this Article. Subject to compliance with this Article, the Company may
exercise its option to have this Section applied to the Outstanding Securities
(as a whole and not in part) notwithstanding the prior exercise of its option to
have Section 12.3 applied to such Securities.
SECTION 12.3 Covenant Defeasance.
-------------------
Upon the Company's exercise of its option to have this Section applied
to the Outstanding Securities (as a whole and not in part), (i) the Company
shall be released from its obligations under Section 8.1(3),
146
Sections 10.5 through 10.19, inclusive, and any covenant provided pursuant to
Section 9.1(ii) and the Guarantors shall be released from their obligations
under Article XIII and the Guarantees (ii) the occurrence of any event specified
in Sections 5.1(3) and 5.1(4) (with respect to Section 8.1(3) and any of
Sections 10.5 through 10.19, inclusive, and any such covenants provided pursuant
to Section 9.1(ii)), shall be deemed not to be or result in an Event of Default,
in each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 12.4 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 5.1(3) or 5.1(4)), whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 12.4 Conditions to Defeasance
or Covenant Defeasance.
-----------------------
The following shall be the conditions to the application of Section
12.2 or Section 12.3 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits
147
of the Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of, premium,
if any, and any instalment of interest on such Securities on the respective
Stated Maturities thereof, in accordance with the terms of this Indenture
and such Securities. As used herein, "U.S. Government Obligation" means (x)
any security which is (i) a direct obligation of the United States of
America for the payment of which the full faith and credit of the United
States of America is pledged or (ii) an obligation of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined
in Section 3(a) (2) of the Securities Act) as custodian with respect to any
U.S. Government Obligation which is specified in clause (x) above and held
by such bank for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest on any
U.S. Government Obligation which is so specified and held, provided that
-------- ----
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
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depositary receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 12.2 apply to the
Outstanding Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (B) since
the date of this instrument, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a result
of the deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 12.3 apply to the
Outstanding Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such Securities will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit and Covenant Defeasance to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur.
(4) No Default or Event of Default with respect to the Outstanding
Securities shall have occurred
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and be continuing at the time of such deposit (excluding a Default or Event
of Default due to a breach of Section 10.8 or 10.12 which arises due to the
borrowing of funds applied to such deposit).
(5) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest with respect to any securities of the
Company or any Guarantor.
(6) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company or any Subsidiary is a party or by which
it is bound (excluding a Default or Event of Default due to a breach of
Section 10.8 or 10.12 which arises due to the borrowing of funds applied to
such deposit).
(7) The Company shall have delivered to the Trustee an Opinion of
Counsel (which opinion may be subject to customary assumptions and
exceptions) to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally.
(8) The Company shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities over the other creditors
of the Company or any Guarantor with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or any Guarantor or others.
(9) No event or condition shall exist that would prevent the Company
from making payments of
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the principal of, premium, if any, and interest on the Securities on the
date of such deposit or at any time ending on the 91st day after the date
of such deposit.
(10) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent under this Indenture to either Defeasance or Covenant Defeasance,
as the case may be, have been complied with.
SECTION 12.5 Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions.
-------------------------
Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 12.6, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 12.4 in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 12.4 or the principal and interest
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received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 12.4
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to the Outstanding Securities.
SECTION 12.6 Reinstatement.
--------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining,
or otherwise prohibiting such application, then the obligations under this
Indenture, such Securities and the Guarantees from which the Company and the
Guarantors have been discharged or released pursuant to Section 12.2 or 12.3
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article with respect to such Securities, until such time as the Trustee or
Paying Agent is permitted to apply all money held in trust pursuant to Section
12.5 with respect to such Securities in accordance with this Article; provided,
--------
however, that if the Company makes any payment of principal of or any premium or
- -------
interest on any such Security following such reinstatement of its obligations,
the Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
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ARTICLE XIII
Guaranty
SECTION 13.1 Guaranty.
---------
Each Guarantor hereby unconditionally and irrevocably guarantees on a
senior subordinated basis, jointly and severally, to each Holder and to the
Trustee and its successors and assigns (a) the full and prompt payment (within
applicable grace periods) of principal of and interest on the Securities when
due, whether at maturity, by acceleration, by redemption or otherwise, and all
other monetary obligations of the Company under this Indenture and the
Securities and (b) the full and prompt performance within applicable grace
periods of all other obligations of the Company under this Indenture and the
Securities (all the foregoing being hereinafter collectively called the
"Guaranty Obligations"). Each Guarantor further agrees that the Guaranty
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from such Guarantor, and that such Guarantor will remain bound
under this Article XIII notwithstanding any extension or renewal of any Guaranty
Obligation.
To the extent that any Guarantor shall be required to pay any amounts
on account of the Securities pursuant to a Guaranty in excess of an amount
calculated as the product of (i) the aggregate amount payable by the Guarantors
on account of the Securities pursuant to the Guarantees times (ii) the
proportion (expressed as a fraction) that such Guarantor's net assets
(determined in accordance with GAAP) at the date enforcement of the Guarantees
is sought bears to the aggregate net assets (determined
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in accordance with GAAP) of all Guarantors at such date, then such Guarantor
shall be reimbursed by the other Guarantors for the amount of such excess,
prorata, in accordance with GAAP) of such other Guarantors at the date
- -------
enforcement of the Guarantees is sought. This paragraph is intended only to
define the relative rights of Guarantors as among themselves, and nothing set
forth in this paragraph is intended to or shall impair the joint and several
obligations of the Guarantors under their respective Guarantees.
The Guarantors shall have the right to seek contribution from any non-
paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under any Guaranty.
Each Guarantor waives presentation to, demand of payment from and
protest to the Company of any of the Guaranty Obligations and also waives notice
of protest for nonpayment. Each Guarantor waives notice of any default under
the Securities or the Guaranty Obligations. The obligations of each Guarantor
hereunder shall not be affected by (a) the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any right or remedy against the
Company or any other Person under this Indenture, the Securities or any other
agreement or otherwise; (b) any extension or renewal of any thereof; (c) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Securities or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Guaranty Obligations or any
of them; (e) the failure of any Holder or Trustee to exercise any right or
remedy against any other guarantor of the Guaranty Obligations; or (f) any
change in the ownership of any Guarantor (subject to Section 13.5).
Each Guarantor further agrees that its Guaranty herein constitutes a
guaranty of payment, performance and compliance when due (and not a guaranty of
collection) and waives any right to require that any resort be
154
had by any Holder or the Trustee to any security held for payment of the
Guaranty Obligations.
To the fullest extent permitted by law, the obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Guaranty
Obligations or otherwise. Without limiting the generality of the foregoing, to
the fullest extent permitted by law, the obligations of each Guarantor herein
shall not be discharged or impaired or otherwise affected by the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any remedy
under this Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, wilful or
otherwise, in the performance of the Guaranty Obligations, or by any other act
or thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of such Guarantor or would otherwise
operate as a discharge of each Guarantor as a matter of law or equity.
Each Guarantor further agrees that its Guaranty herein shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any Guaranty Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against each
Guarantor by virtue hereof, upon the failure of the Company to pay
155
the principal of or interest on any Guaranty Obligation when and as the same
shall become due, whether at maturity, by acceleration, by redemption or
otherwise (within applicable grace periods), or to perform or comply with any
other Guaranty Obligation (within applicable grace periods), each Guarantor
hereby promises to and shall, upon receipt of written demand by the Trustee,
forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an
amount equal to the sum of (i) the unpaid principal amount of such Guaranty
Obligations, (ii) accrued and unpaid interest on such Guaranty Obligations (but
only to the extent not prohibited by law) and (iii) all other monetary Guaranty
Obligations of the Company to the Holders and the Trustee.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Guaranty Obligations
guarantied hereby until payment in full of all Guaranty Obligations. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the Guaranty
Obligations guarantied hereby may be accelerated as provided in Article V for
the purposes of its Guaranty herein, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Guaranty
Obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such Guaranty Obligations as provided in Article V, such
Guaranty Obligations (whether or not due and payable) shall forthwith become due
and payable by each Guarantor for the purposes of this Section.
Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee or
any Holder in enforcing any rights under this Section.
156
SECTION 13.2 Limitation on Liability.
-----------------------
Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the obligations guaranteed
hereunder by each Guarantor shall not exceed the maximum amount that can be
hereby guaranteed without rendering this Indenture, as it relates to such
Guarantor, voidable under applicable federal or state law relating to fraudulent
conveyance or fraudulent transfer.
SECTION 13.3 Execution and Delivery of Guarantees.
------------------------------------
The Guarantees to be endorsed on the Securities shall be in the form
set forth in Exhibit D. Each of the Guarantors hereby agrees to execute its
---------
Guaranty in such form, to be endorsed on each Security authenticated and
delivered by the Trustee.
Each Guaranty shall be executed on behalf of each respective Guarantor
by any one of such Guarantor's Chairman of the Board, Vice Chairman of the
Board, President, Chief Financial Officer, or Vice Presidents. The signature of
any or all of these officers on the Guaranty may be manual or facsimile.
A Guaranty bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of a Guarantor shall bind such
Guarantor, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of the Security on
which such Guaranty is endorsed or did not hold such offices at the date of such
Guaranty.
Each Guaranty shall be registered, transferred, exchanged and
cancelled, and shall be held in definitive or global form, in the same manner
and together
157
with, the Security to which it relates, in accordance with Article III.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guaranty endorsed
thereon on behalf of the Guarantors. Each of the Guarantors hereby jointly and
severally agrees that its Guaranty set forth in Section 13.1 shall remain in
full force and effect notwithstanding any failure to endorse a Guaranty on any
Security.
SECTION 13.4 Guarantors May Consolidate, Etc.,
on Certain Terms.
-----------------
Nothing contained in this Indenture or in any of the Securities or any
Guaranty shall prevent any consolidation or merger of a Guarantor with or into
the Company or a Guarantor or the merger of a wholly owned Restricted Subsidiary
of the Company with and into a Guarantor or shall prevent any sale or conveyance
of the assets of a Guarantor as an entirety or substantially as an entirety or
the Capital Stock of a Guarantor to the Company or a Guarantor.
SECTION 13.5 Release of Guarantors.
---------------------
Upon the consummation of any transaction (whether involving a sale or
other disposition of securities, a merger, or otherwise, including any Asset
Sale) whereby any Guarantor ceases to be a Subsidiary of the Company and which
transaction is otherwise in compliance with the provisions of this Indenture,
such Guarantor shall automatically be released from all obligations under its
Guaranty endorsed on the Securities and under this Article XIII without need for
any further act or the execution or delivery of any document; and upon delivery
by the Company to the Trustee of an Officer's Certificate to the effect that
158
such consolidation, merger, sale or conveyance was made in accordance with the
provisions hereof, the Trustee shall execute any documents reasonably required
in order to evidence the release of such Guarantor from its obligations under
its Guaranty endorsed on the Securities and under this Article XIII..
SECTION 13.6 Successors and Assigns.
----------------------
This Article XIII shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Securities shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
SECTION 13.7 No Waiver, etc.
---------------
Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article XIII
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise of any right, power or privilege.
The rights, remedies and benefits of the Trustee and the Holders herein
expressly specified are cumulative and not exclusive of any other rights,
remedies or benefits which either may have under this Article XIII at law, in
equity, by statute or otherwise.
SECTION 13.8 Modification, etc.
------------------
No modification, amendment or waiver of any provision of this Article,
nor the consent to any departure by a Guarantor therefrom, shall in any event be
159
effective unless the same shall be in writing and signed by the Trustee, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice to or demand on a Guarantor in any
case shall entitle such Guarantor or any other guarantor to any other or further
notice or demand in the same, similar or other circumstances.
SECTION 13.9 Subordination of Guarantees.
---------------------------
The obligations of each Guarantor pursuant to its Guaranty and this
Article XIII shall be (a) junior and subordinated in right of payment to the
prior payment in full in cash of all Guarantor Senior Indebtedness of such
Guarantor and (b) senior in right of payment to all existing and future
Guarantor Subordinated Indebtedness of such Guarantor, in each case on the same
basis as the Securities and the obligations of the Company hereunder are junior
and subordinated to all Senior Indebtedness and senior in right of payment to
all Subordinated Indebtedness. For the purposes of this Section 13.9, Article
XIV shall apply to the obligations of each Guarantor under its Guaranty, this
Article XIII and the other provisions of this Indenture as if references therein
to the Company, the Securities, Senior Indebtedness, Subordinated Indebtedness
and Designated Senior Indebtedness were references to such Guarantor, such
Guarantor's Guaranty, Guarantor Senior Indebtedness, Guarantor Subordinated
Indebtedness and Designated Guarantor Senior Indebtedness, respectively.
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ARTICLE XIV
Subordination
SECTION 14.1 Securities Subordinate to
Senior Indebtedness and Senior
to Subordinated Indebtedness.
------------------------------
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees that, to the extent and in
the manner hereinafter set forth in this Article XIV, the Indebtedness evidenced
by the Securities is hereby expressly made subordinate in right of payment to
the prior payment in full in cash of all Senior Indebtedness and senior in right
of payment to all existing and future Subordinated Indebtedness of the Company.
SECTION XIV.2 Payment Over of Proceeds
Upon Dissolution, Etc. __
----------------------
In the event of any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relating to the Company or its assets, or
any liquidation, dissolution or other winding-up of the Company, whether
voluntary or involuntary, or any assignment for the benefit of creditors or
other marshalling of assets or liabilities of the Company, all Senior
Indebtedness (including, in the case of Designated Senior Indebtedness, any
interest accruing subsequent to the filing of a petition for
bankruptcy(regardless of whether such interest is an allowed claim in the
bankruptcy proceeding)) must be paid in full in cash before any payment(other
than payments in the form of Qualified Equity Interests or other securities the
payment of which is subordinated, at least to the same extent as the Securities,
to the payment of all Senior Indebtedness which may at the time be outstanding
and other than payments from a trust created pursuant to Article XII) is made on
account of the principal of, premium, if any, or interest on the Securities.
161
SECTION 14.3 No Payment When Designated
Senior Indebtedness in Default.
------------------------------
During the continuance of any default in the payment of principal, or
premium, if any, or interest on any Senior Indebtedness, when the same becomes
due, and after receipt by the Trustee and the Company from representatives of
holders of such Senior Indebtedness of written notice of such default, no direct
or indirect payment (other than payments from trusts previously created pursuant
to Article XII) by or on behalf of the Company of any kind or character (other
than Qualified Equity Interests or other securities the payment of which is
subordinated, at least to the same extent as the Securities, to the payment of
all Senior Indebtedness which may at the time be outstanding) may be made on
account of the principal of, premium, if any, or interest on, or the purchase,
redemption or other acquisition of, the Securities unless and until such default
has been cured or waived or has ceased to exist or such Senior Indebtedness
shall have been discharged or paid in full in cash, after which the Company
shall resume making any and all required payments in respect of the Securities,
including any missed payments.
In addition, during the continuance of any other default with respect
to any Designated Senior Indebtedness that permits, or would permit with the
passage of time or the giving of notice or both, the maturity thereof to be
accelerated (a "Non-payment Default") and upon the earlier to occur of (a)
receipt by the Trustee and the Company from the representatives of holders of
such Designated Senior Indebtedness of a written notice of such Non-payment
Default or (b) if such Non-payment Default results from the acceleration of the
maturity of the Securities, the date of such acceleration, no payment (other
than payments from trusts previously created pursuant to Article XII) of any
kind or character (excluding Qualified Equity Interests
162
or subordinated securities) may be made by the Company on account of the
principal of, premium, if any, or interest on, or the purchase, redemption, or
other acquisition of, the Securities for the period specified below (the
"Payment Blockage Period").
The Payment Blockage Period shall commence upon the receipt of notice
of a Non-payment Default by the Trustee and the Company from the representatives
of holders of Designated Senior Indebtedness or the date of the acceleration
referred to in clause (b) of the preceding paragraph, as the case may be, and
shall end on the earliest to occur of the following events: (i) 179 days have
elapsed since the receipt of such notice or the date of the acceleration
referred to in clause (b) of the preceding paragraph (provided the maturity of
--------
such Designated Senior Indebtedness shall not theretofore have been
accelerated), (ii) such default is cured or waived or ceases to exist or such
Designated Senior Indebtedness is discharged or paid in full in cash, or (iii)
such Payment Blockage Period shall have been terminated by written notice to the
Company or the Trustee from the representatives of holders of Designated Senior
Indebtedness initiating such Payment Blockage Period, after which the Company
shall promptly resume making any and all required payments in respect of the
Securities, including any missed payments. Only one Payment Blockage Period
with respect to the Securities may be commenced within any 360 consecutive day
period. No Non-payment Default with respect to Designated Senior Indebtedness
that existed or was continuing on the date of the commencement of any Payment
Blockage Period shall be, or can be, made the basis for the commencement of a
second Payment Blockage Period, whether or not within a period of 360
consecutive days, unless such default has been cured or waived for a period of
not less than 90 consecutive days. In no event shall a Payment Blockage Period
extend beyond 179 days from the date of the receipt by the Trustee of the notice
or the date of the
163
acceleration initiating such Payment Blockage Period and there must be a 180
consecutive day period in any 360 day period during which no Payment Blockage
Period is in effect.
SECTION 14.4 Subrogation to Rights of
Holders of Senior Indebtedness.
------------------------------
Subject to the payment in full in cash of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article XIV to the rights of the holders of such Designated
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of,
premium, if any, and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article XIV, and no payments over pursuant to the provisions of this
Article XIV to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, be deemed to be a payment
or distribution by the Company to or on account of the Senior Indebtedness.
SECTION 14.5 Provisions Solely to Define
Relative Rights.
---------------
The provisions of this Article XIV are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article XIV or elsewhere
164
in this Indenture or in the Securities is intended to or shall (a) impair, as
among the Company, its creditors other than holders of Senior Indebtedness and
the Holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Securities the principal of,
premium, if any and interest on the Securities as and when the same shall become
due and payable in accordance with their terms; (b) affect the relative rights
against the Company of the Holders of the Securities and creditors of the
Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Securities from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article XIV of the holders of Senior Indebtedness to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
SECTION 14.6 Trustee to Effectuate Subordination .
-----------------------------------
Each Holder of a Security by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XIV and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 14.7 No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance
165
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
XIV or the obligations hereunder of the Holders of the Securities to the holders
of Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 14.8 Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article XIV or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Designated Senior Indebtedness
166
or from any trustee therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 6.1, shall be entitled
in all respects to assume that no such facts exist; provided, however, that if
-------- -------
the Trustee shall not have received at its Corporate Trust Office the notice
provided for in this Section at least three Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment in cash of the principal of,
premium, if any or interest on any Security), then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
SECTION 14.9 Reliance on Judicial Order or
Certificate of Liquidating Agent.
--------------------------------
Upon any payment or distribution of assets of the Company referred to
in this Article XIV, the Trustee, subject to the provisions of Section 6.1, and
the Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed
167
thereon and all other facts pertinent thereto or to this Article XIV.
SECTION 14.10 Trustee Not Fiduciary for
Holders of Senior Indebtedness.
------------------------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other Person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XIV or otherwise, except in the case of gross negligence or wilful misconduct on
the part of the Trustee.
SECTION 14.11 Rights of Trustee as Holder of
Senior Indebtedness; Preserva-
tion of Trustee's Rights.
-------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XIV with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
Nothing in this Article XIV shall apply to claims of, or payments to,
the Trustee or its agent or counsel under or pursuant to Section 6.7.
SECTION 14.12 Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article XIV shall in such case (unless the
168
context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article XIV in addition to or in place of the
Trustee; provided, however, that Section 14.11 shall not apply to the Company or
-------- -------
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
======================
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
169
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and attested as of the day and year first above written.
UNITED RENTALS (NORTH AMERICA), INC.
By:
-----------------------------------
Name: Michael J. Nolan
Title: Chief Financial Officer
Attest:
STATE STREET BANK AND TRUST COMPANY
By:
-----------------------------------
Name:
Title:
Attest:
GUARANTORS:
A&A TOOL RENTALS & SALES, INC.
ACG, INC.
ADCO EQUIPMENT, INC.
ARROW EQUIPMENT COMPANY
AUSTINO'S LIFTRUCKS, INC.
BNR EQUIPMENT, INC.
CORAN ENTERPRISES, INCORPORATED
DEALERS SERVICE COMPANY
GRAND VALLEY EQUIPMENT CO.
HIGH REACH CO., INC.
INDEPENDENT SCISSOR LIFTS, INC.
JBK, INC.
170
KUBOTA OF GRAND RAPIDS, INC.
LIFT, INC.
MADISON EQUIPMENT SALES AND RENTAL, INC.
MARK EQUIPMENT, INC.
MERCER EQUIPMENT COMPANY
MISCO RENTS, INC.
MISSION VALLEY RENTALS, INC.
PALMER EQUIPMENT COMPANY, INC.
PAUL E. CARLSON, INC.
POWERS RENTALS & SALES, INC.
RENTALS TOOLS & EQUIPMENT CO.
INTERNATIONAL, INC.
RENTALS UNLIMITED, INCORPORATED
ROSEDALE EQUIPMENT RENTAL, INC.
SPACE MAKER SYSTEMS OF VA., INC.
UNITED EQUIPMENT RENTAL OF HOUSTON, INC.
UNITED RENTALS, INC.
UNITED RENTALS AERIAL EQUIPMENT, INC.
UNITED RENTALS OF COLORADO, INC.
UNITED RENTALS OF KENTUCKY, INC.
UNITED RENTALS OF NEVADA, INC.
UNITED RENTALS OF NEW YORK, INC.
UNITED RENTALS OF SOUTHERN CALIFORNIA, INC.
UNITED RENTALS OF UTAH, INC.
UNITED RENTALS NORTHWEST, INC.
U.S. RENTALS, INC.
WYNNE SYSTEMS, INC.
By:
-----------------------------------
Name: Michael J. Nolan
Title: Vice President and
Secretary
Attest:
171
Schedule A
----------
UNITED RENTALS (NORTH AMERICA), INC.
Except as otherwise indicated, 100% of the voting stock of each of the
Subsidiaries listed below is owned by its parent.
Name of Subsidiary State of
Incorporation
A&A Tool Rentals & Sales, Inc. California
ACG, Inc. Indiana
Adco Equipment, Inc. California
Arrow Equipment Corporation Illinois
Austino's Liftrucks, Inc. New Jersey
BNR Equipment, Inc. New York
Coran Enterprises, Incorporated (d/b/a A-1Rents) California
Dealers Service Company New Jersey
Grand Valley Equipment Co. Michigan
High Reach Co., Inc. Pennsylvania
Independent Scissor Lifts, Inc. California
JBK, Inc. Ohio
Kubota of Grand Rapids, Inc. Michigan
Lift, Inc. Maryland
Madison Equipment Sales and Rental, Inc. Alabama
Mark Equipment, Inc. Alabama
Mercer Equipment Company North Carolina
Misco Rents, Inc. Indiana
Mission Valley Rentals, Inc. California
Palmer Equipment Company, Inc. Michigan
Paul E. Carlson, Inc. Minnesota
Powers Rentals & Sales, Inc. California
Rentals Tools & Equipment Co. International, Inc. Maryland
Rentals Unlimited, Incorporated Rhode Island
Rosedale Equipment Rental, Inc. California
Space Maker Systems of Va., Inc. Virginia
United Equipment Rental of Houston, Inc. (formerly J&J Texas
Rentals Services Inc.)
United Rentals, Inc. Washington
United Rentals Aerial Equipment, Inc. (formerly United Delaware
Rentals of New Jersey, Inc.)
United Rentals of Colorado, Inc. Colorado
(formerly Santa Fe Supply & Rental, Inc.)
United Rentals of Kentucky, Inc. Kentucky
Name of Subsidiary State of
Incorporation
United Rentals of Nevada, Inc. (formerly Nevada High Reach, Nevada
Inc.)
United Rentals of New York, Inc. New York
United Rentals of Southern California, Inc. (d/b/a Able California
Equipment) (formerly Rental Equipment, Inc.)
United Rentals of Utah, Inc. Utah
United Rentals Northwest, Inc. (formerly High Reach, Inc.) Oregon
U.S. Rentals, Inc. Delaware
Wynne Systems, Inc. California
EXHIBIT A-1
-----------
[FORM OF SECURITY]
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO SUCH PURCHASER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A, (2) IN
AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. THE
COMPANY, THE TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE, PLEDGE OR TRANSFER TO REQUIRE THAT A
CERTIFICATION OR TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY BE COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
United Rentals(North America), Inc.
93% Senior Subordinated Note due 2009, Series A
No. __________ $____ ____
CUSIP NO.
United Rentals (North America),Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company,"
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _______________ or
registered assigns, the principal sum of ____________ Dollars on January 15,
2009 and to pay interest thereon from December 15, 1998 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on January 15 and July 15 in each year, commencing July
15, 1999 at the rate of 9.25% per annum, until the principal
A-1-1
hereof is paid or duly provided for, provided that any principal and premium,
-------- ----
and any such installment of interest, which is overdue shall bear interest at
the rate of 9.25% per annum (to the extent that the payment of such interest
shall be legally enforceable), from the dates such amounts are due until they
are paid or duly provided for. The interest so payable and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the January 1 and July 1 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, at the
-------- -------
option of the Company, payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-1-2
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-1-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and attested.
Attest: United Rentals(North America),Inc.
_____________________ By:______________________________
Title: Title:
Trustee's Certificate of Authentication
---------------------------------------
This is one of the Securities referred to in the within-mentioned
Indenture.
State Street Bank and Trust Company,
as Trustee
Dated: By:
----------------------------------
Authorized Signatory
Form of Reverse of Security
---------------------------
This Security is one of a duly authorized issue of Securities of the
Company designated as 93% Senior Subordinated Notes due 2009, Series A (herein
called the "Initial Securities"), limited in aggregate principal amount at
Stated Maturity to $300,000,000 issued and to be issued under an Indenture,
dated as of December 15, 1998 (herein called the "Indenture," which term shall
have the meaning assigned to it in such instrument), among the Company, the
guarantors named therein and State Street Bank and Trust Company, as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. The
Securities include the Initial Securities and the Exchange Securities referred
to below, issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement. The Initial Securities and the Exchange
Securities are treated as a single class of securities under the Indenture.
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. '' 7aaa - 77bbbb (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of such terms.
This Security is redeemable at the option of the Company, in whole or
in part, at any time on or after January 15, 2004, at the Redemption Prices
(expressed as percentages of principal amount) set forth below, plus accrued and
unpaid interest, if any, thereon to the Redemption Date, if redeemed during the
12-month period beginning January 15 of the years indicated below:
A-1-5
Redemption
Year Price
---- ----------
2004 104.625%
2005 103.083%
2006 101.542%
2007 and thereafter 100.000%
In addition, at any time, or from time to time, on or prior to January
15, 2002, the Company may, at its option, use the net cash proceeds of one or
more Public Equity Offerings to redeem up to an aggregate of 35% of the
principal amount of the Securities originally issued, at a redemption price
equal to 109.25% of the principal amount thereof plus accrued and unpaid
interest, if any, thereon to the Redemption Date; provided that at least 65% of
-------- ----
the originally issued principal amount of Securities remains outstanding
immediately after the occurrence of such redemption. In order to effect the
foregoing redemption with the proceeds of any Public Equity Offering, the
Company shall send a redemption notice not later than 90 days after the
consummation of any such Public Equity Offering.
The Securities are not subject to any sinking fund.
The Indenture provides that the Company is obligated (a) upon the
occurrence of a Change in Control to make an offer to purchase all outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
plus accrued and unpaid interest, if any, thereon to the date of purchase and
(b) to make an offer to purchase Securities with a portion of the net cash
proceeds of certain sales or other dispositions of assets (not applied as
specified in the Indenture within the periods set forth therein) at a purchase
price equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase.
In the event of redemption or purchase of this Security in part only
pursuant to a Change of Control Offer or an Asset Sale Offer, a new Security or
Securities for the unredeemed or unpurchased portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
A-1-6
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or of certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, there may be
declared due and payable the principal of, premium, if any, and accrued and
unpaid interest, if any, on all of the outstanding Securities, in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal
A-1-7
amount of Securities at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding for 45 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to certain suits described in the Indenture, including any suit
instituted by the Holder of this Security for the enforcement of any payment of
principal hereof or any premium or interest hereon on or after the respective
due dates expressed herein (or, in the case of redemption, on or after the
Redemption Date or, in the case of any purchase of this Security required to be
made pursuant to a Change of Control Offer or an Asset Sale Offer, on or after
the relevant Purchase Date).
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
This Security is issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require
A-1-8
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Pursuant to the Registration Rights Agreement by and among the Company
and the Initial Purchaser, the Company will be obligated to consummate an
exchange offer pursuant to which the Holder of this Security shall have the
right to exchange this Security for 93% Senior Subordinated Notes due 2009,
Series B, of the Company (herein called the "Exchange Securities"), which have
been registered under the Securities Act, in like principal amount and having
identical terms as the Initial Securities (other than as set forth in this
paragraph). The Holders of Initial Securities shall be entitled to receive
certain additional interest payments in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement. Such additional interest
will constitute liquidated damages and will be the exclusive monetary remedy
available to the Holder of this Security in respect of a Registration Default
(as defined in the Registration Rights Agreement), but without prejudice to any
non-monetary remedies otherwise available to such Holder, whether pursuant to
the Registration Rights Agreement or otherwise.
Interest on this Security shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
The obligations of the Company under the Indenture and this Security
are expressly subordinated to all Senior Indebtedness and senior in right of
payment to all Subordinated Indebtedness, in each case to the extent set forth
in Article XIV of the Indenture, and reference is hereby made to such Indenture
for the precise terms of such subordination.
A-1-9
As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Company under the Indenture and this
Security are Guaranteed pursuant to Guarantees endorsed hereon as provided in
the Indenture. Each Holder, by holding this Security, agrees to all of the
terms and provisions of said Guarantees. The Indenture provides that each
Guarantor shall be released from its Guaranty upon compliance with certain
conditions.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
A-1-10
ASSIGNMENT FORM
If you, the Holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
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 Company. The agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration settlement under the
Securities Act of 1933, as amended (the "Securities Act"), covering resales of
--------------
this Security (which effectiveness shall not have been suspended or terminated
at the date of the transfer) and (ii) the date two years (or such shorter period
of time as permitted by Rule 144(k) under the Securities Act or any successor
provision thereunder) after the later of the original issuance date appearing on
the face of this Security (or any predecessor thereto) or the last date on which
the Company or any affiliate of the Company was the owner of this Security (or
any predecessor thereto), the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer and
that:
[Check One]
---------
A-1-11
[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act provided by
Rule 144A thereunder.
[ ] (b) this Security is being transferred other than in accordance
with (a) above and documents, and a transferor certificate
substantially in the form of Exhibit C to the Indenture in the
---------
case of a transfer pursuant to Regulation S, are being furnished
which comply with the conditions of transfer set forth in this
Security and the Indenture.
If none of the foregoing boxes is checked and, in the case of (b) above, if the
appropriate document is not attached or otherwise furnished to the Trustee, the
Trustee or Security Registrar shall not be obliged to register this Security in
the name of any Person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Section
3.14 of the Indenture shall have been satisfied.
Date: ________ Your Signature:
----------------------------
(Sign exactly as your name
appears on the other
side of this Security)
By:
----------------------------
NOTICE: To be executed
by an executive officer
Signature Guarantee: _____________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on
A-1-12
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A (including the
information specified in Rule 144A(d)(4)) or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:__________ _______________________________________________
NOTICE: To be executed by an executive officer
A-1-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Company pursuant to Section 10.13 or 10.14 of the Indenture, check the
applicable box:
Section 10.13 [ ]
Section 10.14 [ ]
If you want to elect to have only a part of the principal amount of
this Security purchased by the Company pursuant to Section 10.13 or 10.14 of the
Indenture, state the portion of such amount: $_____________
Dated: Your Signature:
---------------------------------
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
--------------------------------------------------------
(Signature must be guaranteed by a financial institution
that is a member of the Securities Transfer Agent Medallion
Program ("STAMP"), the Stock Exchange Medallion Program
("SEMP"), the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP") or such other signature guarantee
program as may be determined by the Security Registrar in
addition to, or in substitution for, STAMP, SEMP or MSP, all
in accordance with the Securities Exchange Act of 1934, as
amended.)
A-1-14
EXHIBIT A-2
-----------
United Rentals(North America), Inc.
93% Senior Subordinated Note due 2009, Series B
No. __________ $
CUSIP NO.
United Rentals (North America), Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company,"
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _____________ or
registered assigns, the principal sum of _____________ Dollars on January 15,
2009 and to pay interest thereon from December 15, 1998 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on January 15 and July 15 in each year, commencing July
15, 1999 at the rate of 9.25% per annum, until the principal hereof is paid or
duly provided for, provided that any principal and premium, and any such
-------- ----
installment of interest, which is overdue shall bear interest at the rate of
9.25% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid or
duly provided for. The interest so payable and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the January 1 and July 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of securities not less than 10 days prior to
such Special Record Date, or be
A-2-1
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, at the
-------- -------
option of the Company, payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-2-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and attested.
Attest: United Rentals(North America), Inc.
_____________________ By: ______________________
Title: Title:
Trustee's Certificate of Authentication
---------------------------------------
This is one of the Securities referred to in the within-mentioned
Indenture.
State Street Bank and Trust Company,
as Trustee
Dated: By: _________________________
Authorized Signatory
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Form of Reverse of Security
---------------------------
This Security is one of a duly authorized issue of Securities of the
Company designated as 93% Senior Subordinated Notes due 2009, Series B (herein
called the "Exchange Securities"), limited in aggregate principal amount at
Stated Maturity to $300,000,000 issued and to be issued under an Indenture,
dated as of December 15, 1998 (herein called the "Indenture," which term shall
have the meaning assigned to it in such instrument), among the Company, the
guarantors named therein and State Street Bank and Trust Company, as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. The
Securities include the Initial Securities and the Exchange Securities, issued in
exchange for the Initial Securities pursuant to the Registration Rights
Agreement. The Initial Securities and the Exchange Securities are treated as a
single class of securities under the Indenture.
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. '' 7aaa - 77bbbb (the "TIA")), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of such terms.
This Security is redeemable at the option of the Company, in whole or
in part, at any time on or after January 15, 2004, at the Redemption Prices
(expressed as percentages of principal amount) set forth below, plus accrued and
unpaid interest, if any, thereon to the Redemption Date, if redeemed during the
12-month period beginning January 15 of the years indicated below:
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Year Price
---- ----------
2004 104.625%
2005 103.083%
2006 101.542%
2007 and thereafter 100.000%
In addition, at any time, or from time to time, on or prior to January
15, 2002, the Company may, at its option, use the net cash proceeds of one or
more Public Equity Offerings to redeem up to an aggregate of 35% of the
principal amount of the Securities originally issued, at a redemption price
equal to 109.25% of the principal amount thereof plus accrued and unpaid
interest, if any, thereon to the Redemption Date; provided that at least 65% of
-------- ----
the originally issued principal amount of Securities remains outstanding
immediately after the occurrence of such redemption. In order to effect the
foregoing redemption with the proceeds of any Public Equity Offering, the
Company shall send the redemption notice not later than 90 days after the
consummation of any such Public Equity Offering.
The Securities are not subject to any sinking fund.
The Indenture provides that the Company is obligated (a) upon the
occurrence of a Change in Control to make an offer to purchase all outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
plus accrued and unpaid interest, if any, thereon to the date of purchase and
(b) to make an offer to purchase Securities with a portion of the net cash
proceeds of certain sales or other dispositions of assets (not applied as
specified in the Indenture within the periods set forth therein) at a purchase
price equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase.
In the event of redemption or purchase of this Security in part only
pursuant to a Change of Control Offer or an Asset Sale Offer, a new Security or
Securities for the unredeemed or unpurchased portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or of
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certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the
Indenture.
If an Event of Default shall occur and be continuing, there may be
declared due and payable the principal of, premium, if any, and accrued and
unpaid interest, if any, on all of the outstanding Securities, in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities at the
time Outstanding a direction inconsistent with such request, and shall have
failed to
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institute any such proceeding for 15 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to certain suits described
in the Indenture, including any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein (or, in
the case of redemption, on or after the Redemption Date or, in the case of any
purchase of this Security required to be made pursuant to a Change of Control
Offer or an Asset Sale Offer, on or after the relevant Purchase Date).
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The obligations of the Company under the Indenture and this Security
are expressly subordinated to all Senior Indebtedness, in each case to the
extent set forth in Article XIV of the Indenture, and reference is hereby made
to such Indenture for the precise terms of such subordination.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
This Security is issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities
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of like tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Company under the Indenture and this
Security are Guaranteed pursuant to Guarantees endorsed hereon as provided in
the Indenture. Each Holder, by holding this Security, agrees to all of the
terms and provisions of said Guarantees. The Indenture provides that each
Guarantor shall be released from its Guaranty upon compliance with certain
conditions.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
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ASSIGNMENT FORM
If you, the Holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
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 Company. The agent may
substitute another to act for such agent.
Date: ________ Your Signature:
-----------------------------------------------
(Sign exactly as your name
appears on the other side of this Security)
By:
----------------------------------------------
NOTICE: To be executed
by an executive officer
Signature Guarantee:
----------------------------------
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Company pursuant to Section 10.13 or 10.14 of the Indenture, check the
applicable box:
Section 10.13 [ ]
Section 10.14 [ ]
If you want to elect to have only a part of the principal amount of
this Security purchased by the Company pursuant to Section 10.13 or 10.14 of the
Indenture, state the portion of such amount: $_____________
Dated: Your Signature:
----------------------------------
(Sign exactly as name appears on the
other side of this
Security)
Signature Guarantee: ________________________________
(Signature must be guaranteed by a financial institution
that is a member of the Securities Transfer Agent Medallion
Program ("STAMP"), the Stock Exchange Medallion Program
("SEMP"), the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP") or such other signature guarantee
program as may be determined by the Security Registrar in
addition to, or in substitution for, STAMP, SEMP or MSP, all
in accordance with the Securities Exchange Act of 1934, as
amended.)
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EXHIBIT B
---------
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A Depositary OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE Depositary TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
B-1
EXHIBIT C
---------
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------------------------------
New York, New York
Attention: Corporate Trustee Administration
Re: United Rentals(North America), Inc.
(the "Company") - 93% Senior Subordinated
Notes due 2009 (the "Securities")
------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of ___________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
--------------
(1) the offer of the Securities was not made to a Person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any Person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated offshore securities market described in Rule
902(a) of Regulation S and neither we nor any Person acting on our behalf
knows that the transaction has been pre-arranged with a buyer in the United
States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
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(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities;
(6) if the circumstances set forth in rule 904(c) under the
Securities Act are applicable, we have complied with the additional
conditions therein, including (if applicable) sending a confirmation or
other notice stating that the Securities may be offered and sold during the
distribution compliance period specified in Rule 903(c)(2) or (3), as
applicable, only in accordance with the provisions of Regulation S;
pursuant to registration of the Securities under the Securities Act; or
pursuant to another available exemption from the registration requirements
under the Securities Act; and
(7) if the sale is made during a distribution compliance period and
the provisions of Rule 903(c)(3) are applicable thereto, we confirm that
such sale has been made in accordance with such provisions.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ______________________
Authorized Signature
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EXHIBIT D
---------
[FORM OF NOTATION ON SECURITY RELATING TO
GUARANTY]
GUARANTY
______________, a __________ corporation (the "Guarantor," which term
includes any successor under the Indenture (the "Indenture") referred to in the
Security upon which this notation is endorsed), hereby unconditionally and
irrevocably guarantees on a senior subordinated basis, jointly and severally
with each other Guarantor of the Securities, to each Holder and to the Trustee
and its successors and assigns (a) the full and prompt payment (within
applicable grace periods) of principal of and interest on the Securities when
due, whether at maturity, by acceleration, by redemption or otherwise, and all
other monetary obligations of the Company under this Indenture and the
Securities and (b) the full and prompt performance within applicable grace
periods of all other obligations of the Company under the Indenture and the
Securities, subject to certain limitations set forth in the Indenture, (all the
foregoing being hereinafter collectively called the "Guaranty Obligations").
The Guarantor further agrees that the Guaranty Obligations may be extended or
renewed, in whole or in part, without notice or further assent from such
Guarantor, and that such Guarantor will remain bound under Article XIII of the
Indenture notwithstanding any extension or renewal of any Guaranty Obligation.
Capitalized terms used herein have the meanings assigned to them in the
Indenture unless otherwise indicated.
Subject to the terms of the Indenture, this Guaranty shall be binding
upon the Guarantor and its successors and assigns and shall inure to the benefit
of the successors and assigns of the Trustee and the Holders and, in the event
of any transfer or assignment of rights by any Holder or the Trustee, the rights
and privileges herein conferred upon that party shall automatically extend to
and be vested in such transferee or assignee, all subject to the terms and
conditions hereof.
D-1
This Guaranty shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this Guaranty is
noted shall have been executed by the Trustee under the Indenture by the
signature of one of its authorized officers.
The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to this Guaranty and the Indenture are expressly
subordinated to all Guarantor Senior Indebtedness and senior in right of payment
to all Guarantor Subordinated Indebtedness, in each case to the extent set forth
in Section 13.9 and Article XIV of the Indenture, and reference is hereby made
to such Indenture for the precise terms of such subordination.
Notwithstanding any other provision of the Indenture or this Guaranty,
under the Indenture and this Guaranty the maximum aggregate amount of the
obligations guaranteed by the Guarantor shall not exceed the maximum amount that
can be guaranteed without rendering the Indenture or this Guaranty, as it
relates to such Guarantor, voidable under applicable federal or state law
relating to fraudulent conveyance or fraudulent transfer. This Guaranty shall
be governed by the internal laws of the State of New York, without regard to
conflict of laws provisions thereof.
[Name of Guarantor]
By: ________________________
Name:
Title:
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