Exhibit 4.1
JLG INDUSTRIES, INC.,
THE NOTE GUARANTORS PARTY HERETO
AND
THE BANK OF NEW YORK,
AS TRUSTEE
8 3/8% SENIOR SUBORDINATED NOTES DUE 2012
INDENTURE
DATED AS OF JUNE 17, 2002
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions...................................................... 1
Section 1.2. Incorporation by Reference of Trust Indenture Act................ 35
Section 1.3. Rules of Construction............................................ 35
ARTICLE II
THE NOTES
Section 2.1. Form and Dating.................................................. 36
Section 2.2. Execution and Authentication .................................... 36
Section 2.3. Registrar and Paying Agent....................................... 37
Section 2.4. Paying Agent to Hold Money in Trust.............................. 38
Section 2.5. Holder Lists..................................................... 38
Section 2.6. Global Note Provisions .......................................... 38
Section 2.7. Legends ......................................................... 39
Section 2.8. Transfer and Exchange............................................ 39
Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes....................... 43
Section 2.10. Temporary Notes.................................................. 43
Section 2.11. Cancellation..................................................... 44
Section 2.12. Defaulted Interest .............................................. 44
Section 2.13. Additional Notes ................................................ 45
Section 2.14. Additional Interest Under Registration Rights Agreements ........ 45
ARTICLE III
COVENANTS
Section 3.1. Payment of Notes ................................................ 46
Section 3.2. Maintenance of Office or Agency.................................. 46
Section 3.3. Corporate Existence ............................................. 47
Section 3.4. Payment of Taxes and Other Claims................................ 47
Section 3.5. Compliance Certificate........................................... 47
Section 3.6. Further Instruments and Acts .................................... 47
Section 3.7. Waiver of Stay, Extension or Usury Laws.......................... 47
Section 3.8. Change of Control ............................................... 48
Section 3.9. Limitation on Incurrence of Additional Indebtedness.............. 49
Section 3.10. Limitation on Restricted Payments. .............................. 49
Section 3.11. Limitation on Asset Sales........................................ 52
Section 3.12. Limitation on Ownership and Sale of Capital Stock of Restricted
Subsidiaries. ................................................... 55
Section 3.13. Limitation on Designation of Unrestricted Subsidiaries........... 55
Section 3.14. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries. ........................................ 56
Section 3.15. Limitation on Layered Indebtedness............................... 58
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Section 3.16. Limitation on Liens. ............................................ 58
Section 3.17. Limitation on Transactions with Affiliates. ..................... 58
Section 3.18. Conduct of Business.............................................. 59
Section 3.19. Reports to Holders............................................... 59
ARTICLE IV
SUCCESSOR ENTITY
Section 4.1. Merger, Consolidation and Sale of Assets ........................ 60
ARTICLE V
OPTIONAL REDEMPTION OF NOTES
Section 5.1. Optional Redemption ............................................. 62
Section 5.2. Election to Redeem .............................................. 62
Section 5.3. Notice of Redemption ............................................ 63
Section 5.4. Selection of Notes to Be Redeemed in Part ....................... 64
Section 5.5. Deposit of Redemption Price ..................................... 64
Section 5.6. Notes Payable on Redemption Date................................. 64
Section 5.7. Unredeemed Portions of Partially Redeemed Note................... 65
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Events of Default................................................ 65
Section 6.2. Acceleration .................................................... 66
Section 6.3. Other Remedies................................................... 67
Section 6.4. Waiver of Past Defaults.......................................... 67
Section 6.5. Control by Majority.............................................. 67
Section 6.6. Limitation on Suits.............................................. 67
Section 6.7. Rights of Holders to Receive Payment ............................ 68
Section 6.8. Collection Suit by Trustee....................................... 68
Section 6.9. Trustee May File Proofs of Claim, etc. .......................... 68
Section 6.10. Priorities ...................................................... 69
Section 6.11. Undertaking for Costs ........................................... 69
ARTICLE VII
TRUSTEE
Section 7.1. Duties of Trustee ............................................... 69
Section 7.2. Rights of Trustee ............................................... 71
Section 7.3. Individual Rights of Trustee..................................... 71
Section 7.4. Trustee's Disclaimer ............................................ 72
Section 7.5. Notice of Defaults .............................................. 72
Section 7.6. Reports by Trustee to Holders.................................... 72
Section 7.7. Compensation and Indemnity....................................... 72
Section 7.8. Replacement of Trustee........................................... 73
Section 7.9. Successor Trustee by Merger ..................................... 74
Section 7.10. Eligibility; Disqualification.................................... 74
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Section 7.11. Preferential Collection of Claims Against Company................ 74
ARTICLE VIII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 8.1. Legal Defeasance and Covenant Defeasance......................... 75
Section 8.2. Conditions to Defeasance......................................... 76
Section 8.3. Application of Trust Money....................................... 77
Section 8.4. Repayment to Company............................................. 77
Section 8.5. Indemnity for U.S. Government Obligations........................ 78
Section 8.6. Reinstatement.................................................... 78
Section 8.7. Satisfaction and Discharge....................................... 78
ARTICLE IX
AMENDMENTS
Section 9.1. Without Consent of Holders....................................... 79
Section 9.2. With Consent of Holders.......................................... 80
Section 9.3. Compliance with Trust Indenture Act.............................. 81
Section 9.4. Revocation and Effect of Consents and Waivers.................... 81
Section 9.5. Notation on or Exchange of Notes ................................ 81
Section 9.6. Trustee to Sign Amendments or Supplements ....................... 82
ARTICLE X
SUBORDINATION OF THE NOTES
Section 10.1. Agreement to Subordinate......................................... 82
Section 10.2. Liquidation, Dissolution, Bankruptcy ............................ 82
Section 10.3. Default on Designated Senior Indebtedness of the Company......... 82
Section 10.4. Acceleration of Payment of Notes ................................ 83
Section 10.5. When Distribution Must Be Paid Over ............................. 83
Section 10.6. Subrogation ..................................................... 83
Section 10.7. Relative Rights ................................................. 84
Section 10.8. Subordination May Not Be Impaired by Company .................... 84
Section 10.9. Rights of Trustee and Paying Agent .............................. 84
Section 10.10. Distribution or Notice to Representative......................... 84
Section 10.11. Article X Not to Prevent Events of Default or Limit Right to
Accelerate....................................................... 84
Section 10.12. Trust Moneys Not Subordinated ................................... 85
Section 10.13. Trustee Entitled to Rely......................................... 85
Section 10.14. Trustee to Effectuate Subordination.............................. 85
Section 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness......... 85
Section 10.16. Reliance by Holders of Senior Indebtedness on Subordination
Provisions....................................................... 85
ARTICLE XI
NOTE GUARANTEES
Section 11.1. Note Guarantees ................................................. 86
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Section 11.2. Limitation on Liability; Termination, Release and Discharge...... 87
Section 11.3. Right of Contribution ........................................... 88
Section 11.4. No Subrogation .................................................. 88
Section 11.5. Additional Note Guarantees....................................... 89
ARTICLE XII
SUBORDINATION OF THE NOTE GUARANTEES
Section 12.1. Agreement to Subordinate......................................... 89
Section 12.2. Liquidation, Dissolution, Bankruptcy ............................ 89
Section 12.3. Default on Designated Senior Indebtedness of Note Guarantors..... 90
Section 12.4. Demand for Payment............................................... 90
Section 12.5. When Distribution Must Be Paid Over ............................. 90
Section 12.6. Subrogation ..................................................... 91
Section 12.7. Relative Rights ................................................. 91
Section 12.8. Subordination May Not Be Impaired by Note Guarantors ............ 91
Section 12.9. Rights of Trustee and Paying Agent .............................. 91
Section 12.10. Distribution or Notice to Representative......................... 92
Section 12.11. Article XII Not To Prevent Defaults Under the Note Guarantees or
Limit Right to Demand Payment ................................... 92
Section 12.12. Trustee Entitled to Rely......................................... 92
Section 12.13. Trustee to Effectuate Subordination.............................. 92
Section 12.14. Trustee Not Fiduciary for Holders of Senior Indebtedness of Note
Guarantors ...................................................... 92
Section 12.15. Reliance by Holders of Senior Indebtedness on Subordination
Provisions....................................................... 93
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Trust Indenture Act Controls..................................... 93
Section 13.2. Notices.......................................................... 93
Section 13.3. Communication by Holders with Other Holders...................... 94
Section 13.4. Certificate and Opinion as to Conditions Precedent .............. 94
Section 13.5. Statements Required in Certificate or Opinion ................... 94
Section 13.6. Rules by Trustee, Paying Agent and Registrar .................... 94
Section 13.7. Legal Holidays .................................................. 94
Section 13.8. Governing Law, Waiver of Jury Trial, etc. ....................... 95
Section 13.9. No Recourse Against Others....................................... 95
Section 13.10. Successors ...................................................... 95
Section 13.11. Duplicate and Counterpart Originals.............................. 95
Section 13.12. Severability..................................................... 96
Section 13.13. Qualification of Indenture ...................................... 96
Section 13.14. Table of Contents; Headings...................................... 96
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EXHIBIT A FORM OF NOTE
EXHIBIT B FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO QIB
EXHIBIT C FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS PURSUANT TO REGULATION S
EXHIBIT D FORM OF RULE 144 CERTIFICATION
EXHIBIT E FORM OF ADDITIONAL NOTE GUARANTEES
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INDENTURE, dated as of June 17, 2002, between JLG Industries, Inc.,
a Pennsylvania corporation (the "Company"), the Note Guarantors party hereto and
The Bank of New York, a New York banking corporation (the "Trustee"), as
Trustee.
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's 8 3/8%
Senior Subordinated Notes Due 2012 issued hereunder.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary or
at the time it merges or consolidates with the Company or any of its Restricted
Subsidiaries or is assumed in connection with the acquisition of assets from
such Person. Such Indebtedness shall be deemed to have been Incurred at the time
such Person becomes a Restricted Subsidiary or at the time it merges or
consolidates with the Company or a Restricted Subsidiary or at the time such
Indebtedness is assumed in connection with the acquisition of assets from such
Person, whether or not such Indebtedness was incurred in connection with, as a
result of, or in contemplation of, such Acquired Person becoming a Restricted
Subsidiary (or being merged into or consolidated with the Company or any
Restricted Subsidiary).
"Additional Note Board Resolutions" means resolutions duly adopted
by the Board of Directors of the Company and delivered to the Trustee in an
Officers' Certificate providing for the issuance of Additional Notes.
"Additional Note Guarantee" has the meaning assigned to it in
Section 11.5.
"Additional Note Guarantor" has the meaning assigned to it in
Section 11.5.
"Additional Note Supplemental Indenture" means a supplement to this
Indenture duly executed and delivered by the Company, each Note Guarantor and
the Trustee pursuant to Article IX providing for the issuance of Additional
Notes.
"Additional Notes" means additional Notes of up to an amount equal
to the difference between $275 million and the aggregate principal amount of
Notes issued as of the Issue Date of the Company's 8 3/8% Senior Subordinated
Notes Due 2012 originally issued after the Issue Date pursuant to Section 2.13,
such difference to exclude the aggregate principal amount of any replacement
Notes and any Exchange Notes as specified in the relevant Additional Note Board
Resolutions or Additional Note Supplemental Indenture issued therefor in
accordance with this Indenture.
"Affiliate" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly
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or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise; provided, that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Affiliate Transaction" has the meaning assigned to it in Section
3.17(a).
"Agent Members" has the meaning assigned to it in Section 2.6(b).
"Authenticating Agent" has the meaning assigned to it in Section
2.2(d).
"Asset Acquisition" means:
(1) an Investment by the Company or any Restricted Subsidiary in
any other Person pursuant to which such Person shall become a Restricted
Subsidiary, or shall be merged with or into the Company or any Restricted
Subsidiary;
(2) the acquisition by the Company or any Restricted Subsidiary of
the assets of any Person (other than a Subsidiary of the Company) which
constitute all or substantially all of the assets of such Person or
comprises any division or line of business of such Person or any other
properties or assets of such Person other than in the ordinary course of
business; or
(3) any Revocation with respect to an Unrestricted Subsidiary.
"Asset Sale" means any direct or indirect sale, disposition,
issuance, conveyance, transfer, lease, assignment or other transfer, including a
Sale and Leaseback Transaction (each, a "disposition") by the Company or any
Restricted Subsidiary of:
(a) any Capital Stock (other than Capital Stock of the Company);
or
(b) any property or assets (other than cash, Cash Equivalents or
Capital Stock) of the Company or any Restricted Subsidiary.
Notwithstanding the preceding, the following items shall not be
deemed to be Asset Sales:
(1) the disposition of all or substantially all of the assets of
the Company and its Restricted Subsidiaries as permitted under Section
4.1;
(2) the disposition of inventory or obsolete or worn-out assets,
including the leasing of inventory by the Company and its Restricted
Subsidiaries to its customers (whether or not the leased inventory remains
(for tax or accounting purposes) an asset of the Company or a Restricted
Subsidiary), in each case in the ordinary course of business;
(3) dispositions of assets in any fiscal year with a Fair Market
Value not to exceed $5 million in the aggregate;
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(4) for purposes of Section 3.11 only, the making of a Restricted
Payment permitted under Section 3.10;
(5) a disposition to the Company or a Restricted Subsidiary,
including a Person that is or will become a Restricted Subsidiary
immediately after the disposition;
(6) any disposition of Receivables Assets pursuant to a Limited
Recourse Receivables Transaction which constitutes an Incurrence of
Indebtedness by the Company or any Restricted Subsidiary made in
accordance with Section 3.9;
(7) any disposition of Receivables Assets pursuant to a Qualified
Receivables Transaction for fair market value thereof; provided that at
least 75% of the consideration therefor consists of cash or Cash
Equivalents received by the Company or any Restricted Subsidiary at the
time thereof; and
(8) any disposition constituting a Lien (other than a Sale and
Leaseback Transaction) permitted under Section 3.16.
"Asset Sale Offer" has the meaning assigned to it in Section
3.11(c).
"Asset Sale Offer Amount" has the meaning assigned to it in Section
3.11(c).
"Asset Sale Offer Notice" means notice of an Asset Sale Offer which
shall govern the terms of the Asset Sale Offer and shall state:
(1) the circumstances of the Asset Sale or Sales, the Net Cash
Proceeds of which are included in the Asset Sale Offer, that an Asset Sale
Offer is being made pursuant to Section 3.11(c), and that all Notes that
are timely tendered will be accepted for payment;
(2) the Asset Sale Offer Amount and the Asset Sale Offer Payment
Date, which date shall be a Business Day no earlier than 30 days nor later
than 60 days from the date the Asset Sale Offer Notice is mailed (other
than as may be required by law);
(3) that any Notes or portions thereof not tendered or accepted
for payment will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Asset
Sale Offer Amount with respect thereto, all Notes or portions thereof
accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest from and after the Asset Sale Offer Payment Date;
(5) that any Holder electing to have any Notes or portions thereof
purchased pursuant to the Asset Sale Offer will be required to surrender
such Notes, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of such Notes completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third
Business Day preceding the Asset Sale Offer Payment Date;
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(6) that any Holder shall be entitled to withdraw such election if
the Paying Agent receives, not later than the close of business on the
second Business Day preceding the Asset Sale Offer Payment Date, a
facsimile transmission or letter, setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement that
such Holder is withdrawing such Holder's election to have such Notes or
portions thereof purchased pursuant to the Asset Sale Offer;
(7) that any Holder electing to have Notes purchased pursuant to
the Asset Sale Offer must specify the principal amount that is being
tendered for purchase, which principal amount must be $1,000 or an
integral multiple thereof;
(8) that any Holder of Certificated Notes whose Certificated Notes
are being purchased only in part will be issued new Certificated Notes
equal in principal amount to the unpurchased portion of the Certificated
Note or Notes surrendered, which unpurchased portion will be equal in
principal amount to $1,000 or an integral multiple thereof;
(9) that the Trustee will return to the Holder of a Global Note
that is being purchased in part, such Global Note with a notation on the
schedule of increases or decreases thereof adjusting the principal amount
thereof to be equal to the unpurchased portion of such Global Note; and
(10) any other information necessary to enable any Holder to tender
Notes and to have such Notes purchased pursuant to Section 3.11(f).
"Asset Sale Offer Payment Date" has the meaning assigned to it in
Section 3.11(e).
"Asset Sale Transaction" means any Asset Sale and, whether or not
constituting an Asset Sale, (1) any sale or other disposition of Capital Stock,
(2) any Designation with respect to an Unrestricted Subsidiary and (3) any sale
or other disposition of property or assets excluded from the definition of Asset
Sale by clause (3) of that definition.
"Bank Credit Facilities" means (i) the amended and restated credit
agreement dated June 17, 2002 by and among the Company, its Subsidiaries listed
on Schedule 1 thereto, the lenders listed on Schedule 2 thereto, Wachovia Bank,
National Association and Bank One, Michigan, and (ii) the amended and restated
financing agreement, dated as of June 17, 2002, by and among the Company, its
subsidiaries party thereto and Allfirst Bank, and all amendments thereto,
together with the related documents thereto (including any Guarantee agreements
and security documents), in each case as such agreements may be amended
(including any amendment and restatement thereof), supplemented or otherwise
modified from time to time, including any agreement adding Subsidiaries of the
Company as additional borrowers or guarantors thereunder or extending the
maturity of, refinancing, replacing or otherwise restructuring all or any
portion of the Indebtedness under such agreement(s) or any successor or
replacement agreement(s) and whether by the same or any other agent, lender or
group of lenders, in each case in the bank credit market.
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"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Bankruptcy Law Event of Default" means:
(1) the entry by a court of competent jurisdiction of: (i) a
decree or order for relief in respect of the Company or any other
Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy
Law or (ii) a decree or order (A) adjudging the Company or any other
Bankruptcy Party a bankrupt or insolvent, (B) approving as properly filed
a petition seeking reorganization, arrangement, adjustment or composition
of, or in respect of, the Company or any other Bankruptcy Party under any
Bankruptcy Law, (C) appointing a Custodian of the Company or any other
Bankruptcy Party or of any substantial part of the property of the Company
or any other Bankruptcy Party, or (D) ordering the winding-up or
liquidation of the affairs of the Company or any other Bankruptcy Party,
and in each case, the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period of
60 consecutive calendar days; or
(2) (i) the commencement by the Company or any other Bankruptcy
Party of a voluntary case or proceeding under any Bankruptcy Law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, (ii)
the consent by the Company or any other Bankruptcy Party to the entry of a
decree or order for relief in respect of the Company or such Bankruptcy
Party in an involuntary case or proceeding under any Bankruptcy Law or to
the commencement of any bankruptcy or insolvency case or proceeding
against the Company or such Bankruptcy Party, (iii) the filing by the
Company or any other Bankruptcy Party of a petition or answer or consent
seeking reorganization or relief under any Bankruptcy Law, (iv) the
consent by the Company or any other Bankruptcy Party to the filing of such
petition or to the appointment of or taking possession by a Custodian of
the Company or such Bankruptcy Party or of any substantial part of the
property of the Company or such Bankruptcy Party, (v) the making by the
Company or any other Bankruptcy Party of an assignment for the benefit of
creditors, (vi) the admission by the Company or any other Bankruptcy Party
in writing of its inability to pay its debts generally as they become due,
(vii) the approval by stockholders of the Company or any other Bankruptcy
Party of any plan or proposal for the liquidation or dissolution of the
Company or such Bankruptcy Party, or (viii) the taking of corporate action
by the Company or any other Bankruptcy Party in furtherance of any such
action.
"Bankruptcy Party" means (i) the Company; (ii) each Significant
Subsidiary; or (iii) one or more Restricted Subsidiaries that, taken together,
would constitute a Significant Subsidiary; it being understood that any
reference in this Indenture to any Bankruptcy Party shall in the case of
multiple Restricted Subsidiaries that individually do not constitute a
Significant Subsidiary, but that, taken together, do constitute a Significant
Subsidiary, only constitutes a reference to all such Restricted Subsidiaries
taken together.
"Board of Directors" means, as to any Person, the board of
directors, management committee or similar governing body of such Person or any
duly authorized committee thereof.
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"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banking institutions are authorized or required by law
to close in New York City.
"Capitalized Lease Obligations" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP. For purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means:
(1) with respect to any Person that is a corporation, any and all
shares, interests, participations or other equivalents (however designated
and whether or not voting) of corporate stock, including each class of
Common Stock and Preferred Stock of such Person;
(2) with respect to any Person that is not a corporation, any and
all partnership or other equity or ownership interests of such Person; and
(3) any warrants, rights or options to purchase any of the
instruments or interests referred to in clause (1) or (2) above.
"Cash Equivalents" means:
(1) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States government or issued by any agency
thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof;
(2) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date
of acquisition thereof and, at the time of acquisition, having one of the
two highest ratings obtainable from either Standard & Poor's Corporation
("S&P") or Moody's Investors Service, Inc. ("Moody's") or any successors
thereto;
(3) commercial paper maturing no more than one year from the date
of acquisition thereof and, at the time of acquisition, having a rating of
at least A-1 from S&P or P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances maturing
within one year from the date of acquisition thereof issued by any bank
organized under the laws of the United States of America or any state
thereof or the District of Columbia or any U.S.
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branch of a non-U.S. bank having at the date of acquisition thereof
combined capital and surplus of not less than $500 million;
(5) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clause (1) above
entered into with any bank meeting the qualifications specified in clause
(4) above; and
(6) investments in money market funds which invest substantially
all of their assets in securities of the types described in clauses (1)
through (5) above.
"Certificated Note" means any Note issued in fully-registered
certificated form (other than a Global Note), which shall be substantially in
the form of Exhibit A, with appropriate legends as specified in Section 2.7 and
Exhibit A.
"Change of Control" means the occurrence of one or more of the
following events:
(1) any Person or Group is or becomes the "beneficial owner,"
directly or indirectly, in the aggregate of more than 35% of the total
voting power of the Voting Stock of the Company (including a Successor
Entity, if applicable), whether by virtue of the issuance, sale or other
disposition of Capital Stock of the Company by the Company or by a direct
or indirect holder of Capital Stock of the Company, a merger or
consolidation involving the Company, its direct or indirect shareholders
or such Person or Group, a sale of assets by the Company, its direct or
indirect shareholders, any voting trust agreement or other agreement to
which the Company, its direct or indirect shareholders or any such Person
or Group is a party or is subject, or otherwise; or
(2) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of the
Company, together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Company was approved by a vote of a majority of the directors of the
Company then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the Board of
Directors of the Company then in office; or
(3) the approval by the holders of Capital Stock of the Company of
any plan or proposal for the liquidation or dissolution of the Company,
whether or not otherwise in compliance with the provisions of the
Indenture.
For purposes of this definition:
(a) "beneficial owner" shall have the meaning specified in Rules
13d-3 and 13d-5 under the Exchange Act, except that any Person or Group
shall be deemed to have "beneficial ownership" of all securities that such
Person or Group has the right to acquire, whether such right is
exercisable immediately, only after the passage of time or upon the
occurrence of a subsequent condition.
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(b) "Person" and "Group" shall have the meanings for "person" and
"group" as used in Sections 13(d) and 14(d) of the Exchange Act; and
(c) any other Person or Group shall be deemed to beneficially own
any Voting Stock of a corporation held by any other corporation (the
"parent corporation") so long as such Person or Group, beneficially owns,
directly or indirectly, in the aggregate at least 35% of the voting power
of the Voting Stock of the parent corporation and no other Person or Group
beneficially owns an equal or greater amount of the Voting Stock of the
parent corporation.
"Change of Control Offer" has the meaning assigned to it in Section
3.8(a).
"Change of Control Offer Notice" means a notice sent by the Company
pursuant to Section 3.8(b), which notice shall govern the terms of the Change of
Control Offer and shall state:
(1) that a Change of Control has occurred, the circumstances or
events causing such Change of Control and that a Change of Control Offer
is being made pursuant to Section 3.8(b), and that all Notes that are
timely tendered will be accepted for payment;
(2) the Change of Control Payment, and the Change of Control
Payment Date, which date shall be a Business Day no earlier than 30
calendar days nor later than 60 calendar days subsequent to the date such
notice is mailed (other than as may be required by law);
(3) that any Notes or portions thereof not tendered or accepted
for payment will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change
of Control Payment with respect thereto, all Notes or portions thereof
accepted for payment pursuant to the Change of Control Offer shall cease
to accrue interest from and after the Change of Control Payment Date;
(5) that any Holder electing to have any Notes or portions thereof
purchased pursuant to a Change of Control Offer will be required to tender
such Notes, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of such Notes completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date;
(6) that any Holder shall be entitled to withdraw such election if
the Paying Agent receives, not later than the close of business on the
second Business Day preceding the Change of Control Payment Date, a
facsimile transmission or letter, setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement that
such Holder is withdrawing such Holder's election to have such Notes or
portions thereof purchased pursuant to the Change of Control Offer;
8
(7) that any Holder electing to have Notes purchased pursuant to
the Change of Control Offer must specify the principal amount that is
being tendered for purchase, which principal amount must be $1,000 or an
integral multiple thereof;
(8) that any Holder of Certificated Notes whose Certificated Notes
are being purchased only in part will be issued new Certificated Notes
equal in principal amount to the unpurchased portion of the Certificated
Note or Notes surrendered, which unpurchased portion will be equal in
principal amount to $1,000 or an integral multiple thereof;
(9) that the Trustee will return to the Holder of a Global Note
that is being purchased in part, such Global Note with a notation on
Schedule A thereof adjusting the principal amount thereof to be equal to
the unpurchased portion of such Global Note; and
(10) any other information necessary to enable any Holder to tender
Notes and to have such Notes purchased pursuant to Section 3.8.
"Change of Control Payment" has the meaning assigned to it in
Section 3.8(a).
"Change of Control Payment Date" has the meaning assigned to it in
Section 3.8(b).
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodity Derivative Agreement" means, in respect of any Person,
any commodity swap agreement (including caps, collars, swaptions, forward
agreements and other similar instruments or agreements) and/or other types of
agreements and instruments designed to hedge commodity risk of such Person.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common equity interests, whether
outstanding on the Issue Date or issued after the Issue Date, and includes all
series and classes of such common equity interests.
"Company" means the party named as such in the introductory
paragraph to this Indenture and its successors and assigns, including any
Successor Entity that becomes such in accordance with Article IV.
"Company Order" has the meaning assigned to it in Section 2.2(c).
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period, plus or minus the following to the extent deducted or added in
calculating such Consolidated Net Income:
(1) Consolidated Income Tax Expense for such period;
(2) Consolidated Interest Expense for such period;
9
(3) Consolidated Non-cash Charges for such period;
(4) net after-tax losses from Asset Sale Transactions or
abandonments or reserves relating thereto for such period;
(5) the cash portion of the Orrville Restructuring Charge taken
for such period; less
(6) (x) all non-cash credits and gains for such period and (y) all
cash payments during such period relating to non-cash charges that were
added back in determining Consolidated EBITDA in any prior period.
Notwithstanding the foregoing, the items specified in clauses (1),
(3) and (4) for any Restricted Subsidiary shall be added to Consolidated Net
Income in calculating Consolidated EBITDA only:
(a) in proportion to the percentage of the total Capital Stock of
such Restricted Subsidiary held directly or indirectly by the Company, and
(b) to the extent that a corresponding amount would be permitted
at the date of determination to be distributed to the Company by such
Restriction Subsidiary pursuant to its charter and bylaws and each law,
regulation, agreement or judgment applicable to such distribution.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of the aggregate amount of Consolidated EBITDA for the
four most recent full fiscal quarters for which financial statements are
available ending prior to the date of such determination (the "Four Quarter
Period") to Consolidated Fixed Charges for such Four Quarter Period. For
purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis in
accordance with Regulation S-X under the Securities Act for the period of such
calculation to:
(1) the Incurrence or repayment (excluding revolving credit
borrowings Incurred or repaid in the ordinary course of business for
working capital purposes) or redemption of any Indebtedness or Preferred
Stock of the Company or any of its Restricted Subsidiaries (and the
application of the proceeds thereof), including the Incurrence of any
Indebtedness or Preferred Stock (and the application of the proceeds
thereof) giving rise to the need to make such determination, occurring
during such Four Quarter Period or at any time subsequent to the last day
of such Four Quarter Period and on or prior to such date of determination,
as if such Incurrence or repayment, as the case may be (and the
application of the proceeds thereof), occurred on the first day of such
Four Quarter Period; and
(2) any Asset Sale Transaction or Asset Acquisition (including any
Asset Acquisition giving rise to the need to make such determination as a
result of the Company or one of its Restricted Subsidiaries (including any
Person who becomes a Restricted Subsidiary as a result of the Asset
Acquisition) Incurring Acquired Indebtedness and including by giving pro
forma effect to any Consolidated EBITDA
10
(provided, that such pro forma Consolidated EBITDA shall be calculated in
a manner consistent with the exclusions in the definition of Consolidated
Net Income) attributable to the assets which are the subject of the Asset
Sale Transaction or Asset Acquisition during the Four Quarter Period)
occurring during the Four Quarter Period or at any time subsequent to the
last day of the Four Quarter Period and on or prior to such date of
determination, as if such Asset Sale Transaction or Asset Acquisition
(including the Incurrence of any such Acquired Indebtedness) occurred on
the first day of the Four Quarter Period.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this "Consolidated Fixed
Charge Coverage Ratio,"
(a) interest on outstanding Indebtedness determined on a
fluctuating basis as of the date of determination 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 such date of determination;
(b) if interest on any Indebtedness actually Incurred on such date
of determination may optionally be determined at an interest rate based
upon a factor of a prime or similar rate, a euro currency interbank
offered rate, or other rates, then the interest rate in effect on such
date of determination will be deemed to have been in effect during the
Four Quarter Period; and
(c) notwithstanding clause (a) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered
by Hedging Obligations, shall be deemed to accrue at the rate per annum
resulting after giving effect to the operation of such agreements.
"Consolidated Fixed Charges" means, for any period, the sum, without
duplication, of:
(1) Consolidated Interest Expense, plus
(2) the product of:
(a) the amount of all cash and non-cash dividend payments on
any series of Preferred Stock or Disqualified Capital Stock of the
Company or any Restricted Subsidiary (other than dividends paid in
Qualified Capital Stock) or any Restricted Subsidiaries paid,
accrued or scheduled to be paid or accrued during such period times
(b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective
consolidated U.S. federal, state and local tax rate of the Company,
expressed as a decimal.
11
"Consolidated Income Tax Expense" means, with respect to the Company
for any period, the provision for U.S. federal, state, local and non-U.S. income
taxes payable by the Company and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the sum of,
without duplication determined on a consolidated basis in accordance with GAAP:
(1) the aggregate of cash and non-cash interest expense of the
Company and its Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including (whether or not
interest expense in accordance with GAAP):
(a) any amortization or accretion of debt discount or any
interest paid on Indebtedness of the Company in the form of
additional Indebtedness,
(b) any amortization of deferred financing costs,
(c) the net costs under Hedging Obligations (including
amortization of fees),
(d) all capitalized interest,
(e) the interest portion of any deferred payment obligation,
(f) commissions, discounts and other fees and charges
Incurred in respect of letters of credit or bankers' acceptances,
and
(g) any interest expense on (i) Indebtedness of another
Person that is Guaranteed by the Company or one of its Restricted
Subsidiaries (excluding interest expense (other than interest
expense of the Company and its Restricted Subsidiaries determined on
a consolidated basis in accordance with GAAP, which is not
reimbursed to the Company and its Restricted Subsidiaries) on
Indebtedness of customers of the Company or its Restricted
Subsidiaries used to finance the purchase of inventory and related
services from the Company or any of its Restricted Subsidiaries if
the Company or a Restricted Subsidiary has an enforceable right to
sell such inventory to satisfy the Guaranteed Indebtedness or its
reimbursement for payment thereof or similar rights related thereto)
or (ii) secured by a Lien on the assets of such Person or one of its
Restricted Subsidiaries; in each case whether or not such Guarantee
or Lien is called upon; and
12
(2) the interest component of Capitalized Lease Obligations paid,
accrued and/or scheduled to be paid or accrued by the Company and its
Restricted Subsidiaries during such period.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate net income (or loss) of such Person and its Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP;
provided, that there shall be excluded therefrom:
(1) net after-tax gains from Asset Sale Transactions or
abandonments or reserves relating thereto;
(2) net after-tax items classified as extraordinary gains or
losses;
(3) for purposes of calculating Consolidated Net Income pursuant
to Section 3.10(a)(C)(i) only, the net income (or loss) of:
(A) any Person acquired in a "pooling of interests"
transaction accrued prior to the date it becomes a Restricted
Subsidiary or is merged or consolidated with the Company or any
Restricted Subsidiary; or
(B) a Successor Entity prior to assuming the Company's
obligations under the Indenture and the Notes pursuant to Section
4.1.
(4) the net income (but not loss) of any Restricted Subsidiary to
the extent that a corresponding amount could not be distributed to the
Company at the date of determination as a result of any restriction
pursuant to such Restricted Subsidiary's charter or bylaws or any law,
regulation, agreement or judgment applicable to any such distribution;
(5) the net income (but not loss) of any Person other than the
Company or a Restricted Subsidiary;
(6) any increase (but not decrease) in net income attributable to
minority interests in any Restricted Subsidiary;
(7) any restoration to income of any contingency reserve, except
to the extent that provision for such reserve was made out of Consolidated
Net Income accrued at any time following the Issue Date; and
(8) the cumulative effect of changes in accounting principles.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
13
"Consolidated Non-cash Charges" means, for any period, the aggregate
depreciation, amortization and other non-cash expenses or losses of the Company
and its Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP (excluding any such charge which constitutes an
accrual of or a reserve for cash charges for any future period or the
amortization of a prepaid cash expense paid in a prior period).
"Corporate Trust Office" means the principal office of the Trustee
at which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 101 Barclay Street, New York, New York
10286, Attention: Corporate Trust Department, or such other address as the
Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by
notice to the Holders and the Company).
"Covenant Defeasance" has the meaning assigned to it in Section
8.1(c).
"Credit Derivative Agreement" means, in respect of any Person, any
credit derivative or other similar derivative instrument and/or agreement
designed to hedge credit risk of such Person.
"Currency Derivative Agreement" means, in respect of any Person, any
foreign exchange contract or currency swap agreement (including any forward
agreement, swaption and other similar agreement) or other agreements and
instruments designed to hedge foreign currency risk of such Person.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Defaulted Interest" has the meaning assigned to it in paragraph 1
of the Form of Reverse Side of Note contained in Exhibit A.
"Designated Senior Indebtedness" means:
(1) in respect of the Company, the Bank Credit Facilities and any
other Senior Indebtedness of the Company which, at the date of
determination, have an aggregate principal amount or accreted amount
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to, at least $25 million and are
specifically designated by the Company in the instrument evidencing or
governing such Senior Indebtedness as "Designated Senior Indebtedness"
hereunder; and
(2) in respect of any Note Guarantor, the Bank Credit Facilities
and any other Senior Indebtedness of any Note Guarantor which, at the date
of determination, have an aggregate principal amount or accreted amount
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to, at least $25 million and are
specifically designated by such Note Guarantor in the instrument
14
evidencing or governing such Senior Indebtedness as "Designated Senior
Indebtedness" hereunder.
"Designation" and "Designation Amount" have the meanings assigned to
it in Section 3.13.
"Distribution Compliance Period" means, in respect of any Regulation
S Global Note, the 40 consecutive days beginning on and including the later of
(a) the day on which any Notes represented thereby are offered to persons other
than distributors (as defined in Regulation S under the Securities Act) pursuant
to Regulation S and (b) the issue date for such Notes.
"Disqualified Capital Stock" means that portion of any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the sole option of the holder thereof, in any case, on or prior to the 91st
day after the final maturity date of the Notes.
"Domestic Restricted Subsidiary" means any direct or indirect
Restricted Subsidiary (other than a Receivables Subsidiary) that is organized
under the laws of the United States, any state or possession thereof or the
District of Columbia.
"DTC" means The Depository Trust Company, its nominees and their
respective successors and assigns, or such other depositary institution
hereinafter appointed by the Company that is a clearing agency registered under
the Exchange Act.
"Equity Offering" has the meaning assigned to it in paragraph 5 of
the Form of Reverse Side of Note contained in Exhibit A.
"Event of Default" has the meaning assigned to it in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" means debt securities of the Company, guaranteed by
the Note Guarantors, substantially identical in all material respects to the
Notes (except that the additional interest provisions and the transfer
restrictions pertaining to the Notes will be modified or eliminated, as
appropriate), to be issued pursuant to this Indenture.
"Exchange Offer Registration Statement" shall have the meaning
assigned to such term in the Issue Date Registration Rights Agreement and any
other Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset, the price
(after taking into account any liabilities relating to such assets) which could
be negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction; provided, that the Fair Market Value
15
of any such asset or assets shall be determined conclusively by the Board of
Directors of the Company acting in good faith, and shall be evidenced by a Board
Resolution.
"Four Quarter Period" has the meaning set forth in the definition of
Consolidated Fixed Charge Coverage Ratio above.
"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 that are in effect as of the
Issue Date.
"Global Note" means any Note issued in fully-registered certificated
form to DTC (or its nominee), as depositary for the beneficial owners thereof,
which shall be substantially in the form of Exhibit A, with appropriate legends
as specified in Section 2.7 and Exhibit A.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person:
(1) to purchase or pay, or advance or supply funds for the
purchase or payment of, such Indebtedness of such other Person, whether
arising by virtue of partnership arrangements, or by a binding agreement
to keep-well that is by its terms enforceable by one or more Persons, to
purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise, or
(2) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof, in whole or in part,
provided, that "Guarantee" shall not include (i) endorsements for collection or
deposit in the ordinary course of business, (ii) obligations, contingent or
otherwise, pursuant to Standard Undertakings, or (iii) recourse in Limited
Recourse Receivables Transactions. "Guarantee" used as a verb has a
corresponding meaning.
"Hedging Obligations" means the obligations of any Person pursuant
to any Interest Rate Derivative Agreement, Currency Derivative Agreement, Credit
Derivative Agreement or Commodity Derivative Agreement.
"Holder" means the Person in whose name a Note is registered in the
Note Register.
"Incur" means, with respect to any Indebtedness or other obligation
of any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, Guarantee or otherwise become liable in respect of such
Indebtedness or other obligation on the balance sheet of such Person (and
"Incurrence," "Incurred" and "Incurring" shall have meanings correlative to the
preceding).
"Indebtedness" means with respect to any Person, without
duplication:
16
(1) the principal amount (or, if less, the accreted value) of all
obligations of such Person for borrowed money;
(2) the principal amount (or, if less, the accreted value) of all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations and
all obligations under any title retention agreement (but excluding trade
accounts payable and other accrued liabilities arising in the ordinary
course of business that are not overdue by 90 days or more or are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted);
(5) all letters of credit, banker's acceptances or similar credit
transactions, including reimbursement obligations in respect thereof;
(6) Guarantees and other contingent obligations of such Person in
respect of Indebtedness referred to in clauses (1) through (5) above and
clauses (8) through (10) below;
(7) all Indebtedness of any other Person of the type referred to
in clauses (1) through (6) which is secured by any Lien on any property or
asset of such Person, the amount of such Indebtedness being deemed to be
the lesser of the Fair Market Value of such property or asset or the
amount of the Indebtedness so secured;
(8) all obligations under Hedging Obligations of such Person;
(9) all obligations reflected as debt on the balance sheet of such
Person in accordance with GAAP in connection with the sale, conveyance,
securitization or other transfer of, or the creation of a security
interest in, Receivables Assets; and
(10) all Disqualified Capital Stock issued by such Person with the
amount of Indebtedness represented by such Disqualified Capital Stock
being equal to the greater of its voluntary or involuntary liquidation
preference and its maximum fixed repurchase price, but excluding accrued
dividends, if any; provided, that:
(a) if the Disqualified Capital Stock does not have a fixed
repurchase price, such maximum fixed repurchase price shall be
calculated in accordance with the terms of the Disqualified Capital
Stock as if the Disqualified Capital Stock were purchased on any
date on which Indebtedness shall be required to be determined
pursuant to the Indenture, and
(b) if the maximum fixed repurchase price is based upon, or
measured by, the fair market value of the Disqualified
17
Capital Stock, the fair market value shall be the Fair Market Value
thereof.
"Indenture" means this Indenture as amended or supplemented from
time to time, including the exhibits hereto.
"Independent Financial Advisor" means an accounting firm, appraisal
firm, investment banking firm or consultant of nationally recognized standing
that is, in the judgment of the Company's Board of Directors, qualified to
perform the task for which it has been engaged and which is independent in
connection with the relevant transaction.
"Interest Payment Date" means the stated due date of an installment
of interest on the Notes as specified in the Form of Face of Note contained in
Exhibit A.
"Interest Rate Derivative Agreement" of any Person means any
interest rate swap agreement (including interest rate swaps, caps, floors,
collars, swaptions, forward agreements or forward rate instruments and other
similar agreements) and/or other types of agreements and instruments designed to
hedge interest rate risk of such Person.
"Investment" means, with respect to any Person, any:
(1) direct or indirect loan or other extension of credit
(including a Guarantee) to any other Person,
(2) capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the
account or use of others) to any other Person, or
(3) 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.
"Investment" shall exclude accounts receivable or deposits arising
in the ordinary course of business. "Invest," "Investing" and "Invested" shall
have corresponding meanings.
For purposes of the "Limitation on Restricted Payments" covenant,
Section 3.10 herein, the Company shall be deemed to have made an "Investment" in
an Unrestricted Subsidiary at the time of its Designation, which shall be valued
at the Fair Market Value of the sum of the net assets of such Unrestricted
Subsidiary at the time of its Designation and the amount of any Indebtedness of
such Unrestricted Subsidiary Guaranteed by the Company or any Restricted
Subsidiary or owed to the Company or any Restricted Subsidiary immediately
following such Designation. Any property transferred to or from an Unrestricted
Subsidiary will be valued at its Fair Market Value at the time of such transfer.
If the Company or any Restricted Subsidiary sells or otherwise disposes of any
Common Stock of a Restricted Subsidiary (including any issuance and sale of
Capital Stock by a Restricted Subsidiary) such that, after giving effect to any
such sale or disposition, such Restricted Subsidiary would cease to be a
Subsidiary of the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to sum of the Fair
Market Value of the Capital Stock of
18
such former Restricted Subsidiary held by the Company or any Restricted
Subsidiary immediately following such sale or other disposition and the amount
of any Indebtedness of such former Restricted Subsidiary Guaranteed by the
Company or any Restricted Subsidiary or owed to the Company or any other
Restricted Subsidiary immediately following such sale or other disposition.
"Investment Return" means, in respect of any Investment (other than
a Permitted Investment) made after the Issue Date by the Company or any
Restricted Subsidiary:
(1) the cash proceeds received by the Company upon the sale,
liquidation or repayment of, or the payment of interest on, such
Investment or, in the case of a Guarantee, the amount of the Guarantee
upon the unconditional release of the Company and its Restricted
Subsidiaries in full, less any payments previously made by the Company or
any Restricted Subsidiary in respect of such Guarantee;
(2) in the case of the Revocation of the Designation of an
Unrestricted Subsidiary, an amount equal to the lesser of:
(a) the Company's Investment in such Unrestricted Subsidiary
at the time of such Revocation;
(b) that portion of the Fair Market Value of the net assets
of such Unrestricted Subsidiary at the time of Revocation that is
proportionate to the Company's equity interest in such Unrestricted
Subsidiary at the time of Revocation; and
(c) the Designation Amount with respect to such Unrestricted
Subsidiary upon its Designation which was treated as a Restricted
Payment; and
(3) in the event the Company or any Restricted Subsidiary makes
any Investment in a Person that, as a result of or in connection with such
Investment, becomes a Restricted Subsidiary, an amount equal to the
Company's or any Restricted Subsidiary's existing Investment in such
Person,
in the case of each of clauses (1), (2) and (3), up to the amount of such
Investment that was treated as a Restricted Payment pursuant to Section
3.10(a)(C) less the amount of any previous Investment Return in respect of such
Investment.
"Issue Date" means the first date of issuance of Notes under the
Indenture.
"Issue Date Notes" means the $175,000,000 aggregate principal amount
of Notes originally issued on the Issue Date, and any replacement Notes, Private
Exchange Notes and Exchange Notes, issued therefor in accordance with this
Indenture.
"Issue Date Registration Rights Agreement" means the Registration
Rights Agreement, dated as of June 17, 2002, by and among the Company, the Note
Guarantors and Wachovia Securities, Inc., Credit Suisse First Boston
Corporation, J.P. Morgan Securities Inc.,
19
Banc One Capital Markets, Inc., BMO Nesbitt Burns Corp., BNY Capital Markets,
Inc. and Credit Lyonnais Securities (USA) Inc., as Initial Purchasers.
"Legal Defeasance" has the meaning assigned to it in Section 8.1(b).
"Legal Holiday" has the meaning assigned to it in Section 13.7.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest); provided that, the lessee in respect
of a Capitalized Lease Obligation shall be deemed to have Incurred a Lien on the
property leased thereunder.
"Limited Recourse Receivables Transaction" means a sale, conveyance,
assignment or other transfer or securitization of, or creation of a security
interest in, Receivables Assets by the Company and its Restricted Subsidiaries
on a limited recourse basis which constitutes an Incurrence of Indebtedness
specified in clause (9) of the definition of "Indebtedness."
"Material Domestic Subsidiary" means any Domestic Restricted
Subsidiary which either: (i) comprised five percent (5%) or more of the assets
of Company and its Restricted Subsidiaries on a consolidated basis as of the
most recent date for which a balance sheet has been delivered (or is required to
have been delivered under Section 3.19), or (ii) was responsible for five
percent (5%) or more of Consolidated EBITDA for the most recent four fiscal
quarters of the Company completed on or before such date without giving effect
to clause (b) of the definition thereof.
"Maturity Date" means June 15, 2012.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents, including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents received by the Company or any of its Restricted Subsidiaries from
such Asset Sale, net of:
(1) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including legal, accounting and investment banking fees and
sales commissions);
(2) taxes paid or payable in respect of such Asset Sale after
taking into account any reduction in consolidated tax liability due to
available tax credits or deductions and any tax sharing arrangements;
(3) repayment of Indebtedness secured by a Lien permitted under
the Indenture that is required to be repaid in connection with such Asset
Sale; and
(4) appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve, in accordance
with GAAP, against any liabilities associated with such Asset Sale and
retained by the Company or any Restricted Subsidiary, as the case may be,
after such Asset Sale, including pension and other post-
20
employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated
with such Asset Sale, but excluding any reserves with respect to
Indebtedness.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Note Custodian" means the custodian with respect to any Global Note
appointed by DTC, or any successor Person thereto, and shall initially be the
Trustee.
"Note Guarantee" means the guarantee of the Company's Obligations
under this Indenture and the Notes by each Note Guarantor pursuant to Article
XI.
"Note Guarantor" means, at any time, any Material Domestic
Subsidiary which provides a Note Guarantee pursuant to Article XI until such
time as such Material Domestic Subsidiary is released and relieved of its
obligations under its Note Guarantee in accordance with Article XI.
"Note Register" has the meaning assigned to it in Section 2.3(a).
"Notes" means any of the Company's 8 3/8% Senior Subordinated Notes
Due 2012 issued and authenticated pursuant to this Indenture.
"Obligations" means, with respect to any Indebtedness, any
principal, interest (including Post-Petition Interest), penalties, fees,
indemnifications, reimbursements, damages, and other liabilities payable under
the documentation governing such Indebtedness, including in the case of the
Notes and the Note Guarantees, the Indenture and the Registration Rights
Agreement.
"Officer" means, when used in connection with any action to be taken
by the Company or a Note Guarantor, as the case may be, the Chairman of the
Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary of the Company or any Assistant Secretary of the
Company.
"Officers' Certificate" means, when used in connection with any
action to be taken by the Company or a Note Guarantor, as the case may be, a
certificate signed by two Officers and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who, unless
otherwise indicated in this Indenture, may be an employee of or counsel for the
Company and who shall be reasonably acceptable to the Trustee.
"Orrville Restructuring Charge" means the restructuring charge (the
cash portion not to exceed $3,400,000) incurred in connection with the closing
of the Company's facility in Orrville, Ohio.
"Outstanding " means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture, except:
21
(1) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Notes, or portions thereof, for the payment, redemption or
purchase of which (including pursuant to an Asset Sale Offer or Change of
Control Offer) money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company, a
Note Guarantor or an Affiliate of the Company) in trust or set aside and
segregated in trust by the Company (if the Company, a Note Guarantor or an
Affiliate of the Company is acting as Paying Agent) for the Holders of
such Notes; provided that, if Notes (or portions thereof) are to be
redeemed or purchased, notice of such redemption or purchase has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(3) Notes which have been surrendered pursuant to Section 2.9 or
in exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands such Notes are valid obligations of the Company; and
(4) solely to the extent provided in Article VIII, Notes which are
subject to Legal Defeasance or Covenant Defeasance as provided in Article
VIII;
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of the Outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Notes
owned by the Company or any other obligor upon the Notes or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, modification or waiver, only Notes which a Trust Officer of the Trustee
actually knows to be so owned shall be so disregarded. Notes 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 Notes and that the pledgee is not the Company or any other
obligor upon the Notes or any Affiliate of the Company or of such other obligor.
"Paying Agent" has the meaning assigned to it in Section 2.3(a).
"Payment Blockage Notice" has the meaning assigned to it in Section
10.3.
"Permitted Business" means the business or businesses conducted by
the Company and its Restricted Subsidiaries as of the Issue Date and any
business ancillary or complementary thereto, it being understood, for the
avoidance of doubt, that any business that permits the Company and its
Restricted Subsidiaries to vertically integrate its business or businesses
conducted as of the Issue Date shall be considered to be ancillary or
complementary thereto.
22
"Permitted Indebtedness" means, without duplication, each of the
following:
(1) Indebtedness of $175 million in respect of the Notes (other
than Additional Notes);
(2) Guarantees by any Note Guarantor of Indebtedness of the
Company or any other Note Guarantor permitted under the Indenture;
provided, that if any such Guarantee is of Subordinated Indebtedness, then
the Note Guarantee of such Note Guarantor shall be senior to such Note
Guarantor's Guarantee of such Subordinated Indebtedness;
(3) Indebtedness Incurred by the Company and any Note Guarantor
pursuant to the Bank Credit Facilities in an aggregate principal amount at
any time outstanding not to exceed $275 million, less the amount of any
prepayments or permanent reductions of commitments in respect of such
Indebtedness made with the Net Cash Proceeds of an Asset Sale in order to
comply with Section 3.11 and it being understood that amounts outstanding
under the Bank Credit Facilities on the Issue Date are deemed to be
Incurred under this clause (3);
(4) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date other than Indebtedness under
the Bank Credit Facilities or otherwise specified under any of the other
clauses of this definition of Permitted Indebtedness;
(5) Hedging Obligations entered into in the ordinary course of
business and not for speculative purposes;
(6) intercompany Indebtedness between the Company and any of its
Restricted Subsidiaries and between or among the Restricted Subsidiaries;
provided, that:
(a) if the Company or any Note Guarantor is the obligor on
such Indebtedness, such Indebtedness must be expressly subordinated
to the prior payment in full of all obligations under the Notes and
the Indenture, in the case of the Company, or such Note Guarantor's
Note Guarantee, in the case of any such Note Guarantor, and
(b) in the event that at any time any such Indebtedness
ceases to be held by the Company or a Restricted Subsidiary, such
Indebtedness shall be deemed to be Incurred and not permitted by
this clause (6) at the time such event occurs;
(7) Indebtedness of the Company or any of its Restricted
Subsidiaries arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently
(including in the case of daylight overdrafts so long as such overdrafts
are paid in full by close of business on the day such overdraft was
incurred) drawn against insufficient funds in the ordinary course of
business; provided, that such Indebtedness is extinguished within two
Business Days of Incurrence;
23
(8) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or any Restricted Subsidiary, as the case may be, in order to
provide security for workers' compensation claims, payment obligations in
connection with self-insurance or similar requirements in the ordinary
course of business;
(9) Refinancing Indebtedness in respect of:
(a) Indebtedness (other than Indebtedness owed to the
Company or any Subsidiary) Incurred pursuant to Section 3.9(a) (it
being understood that no Indebtedness outstanding on the Issue Date
is Incurred pursuant to such Section 3.9(a)), or
(b) Indebtedness Incurred pursuant to clause (1) or (4)
above;
(10) Indebtedness of the Company or any Restricted Subsidiary in
respect of any Limited Recourse Receivables Transaction, so long as the
aggregate Indebtedness reflected on the balance sheet of the Company and
its Restricted Subsidiaries in respect of all Indebtedness Incurred under
this clause (10) does not exceed $100 million at any time;
(11) Guarantees of, or other contingent liabilities relating to,
loans or other obligations Incurred by customers of the Company and its
Restricted Subsidiaries to finance the purchase of inventory or services
from the Company and its Restricted Subsidiaries; provided that the amount
of such loans or other obligations does not exceed in the aggregate at any
one time outstanding (including as outstanding amounts paid by the Company
or any of its Restricted Subsidiaries in respect of such loans or other
obligations that are not subsequently reimbursed to the Company or any of
its Restricted Subsidiaries unless the Company and its consolidated
Subsidiaries could Incur $1.00 of additional Indebtedness pursuant to
Section 3.9(a) at the time of such payment) $100 million (including such
loans or other obligations outstanding on the Issue Date);
(12) Indebtedness of the Company or any Restricted Subsidiary in an
aggregate principal amount not to exceed $25 million at any one time
outstanding (which amount may, but need not, be Incurred in whole or in
part under the Bank Credit Facilities).
"Permitted Investment" means:
(1) Investments by the Company or any Restricted Subsidiary in any
Person that is, or that result in any Person becoming, immediately after
such Investment, a Restricted Subsidiary or constituting a merger or
consolidation of such Person into the Company or with or into a Restricted
Subsidiary, except for a Guarantee of Indebtedness of a Restricted
Subsidiary that is not a Note Guarantor;
(2) Investments by any Restricted Subsidiary in the Company;
(3) Investments in cash and Cash Equivalents;
24
(4) any extension, modification or renewal of any Investments
existing as of the Issue Date (but not Investments involving additional
advances, contributions or other investments of cash or property or other
increases thereof, other than as a result of the accrual or accretion of
interest or original issue discount or payment-in-kind pursuant to the
terms of such Investment as of the Issue Date);
(5) Investments permitted pursuant to Section 3.17(b)(2) or (5);
(6) Investments received as a result of the bankruptcy or
reorganization of any Person or taken in settlement of or other resolution
of claims or disputes, and, in each case, extensions, modifications and
renewals thereof;
(7) Investments made by the Company or its Restricted Subsidiaries
(a) in the form of non-cash consideration permitted to be received in
connection with an Asset Sale made in compliance with the covenant
described in Section 3.11 or (b) in a Receivables Subsidiary in connection
with a Receivables Transaction so long as (i) any such Investment is made
substantially concurrently with a disposition of the Receivables Assets in
such Receivables Transaction and (ii) the Company and its Restricted
Subsidiaries receive cash consideration for such disposition at the time
thereof such that the total Investment of the Company and its Restricted
Subsidiaries in such Receivables Subsidiary in connection with such
Receivables Transaction after receipt of such cash consideration does not
exceed 25% of the Fair Market Value of such Receivables Assets;
(8) Investments made solely in the form of common equity of the
Company constituting Qualified Capital Stock;
(9) Guarantees or other contingent obligations which are Incurred
under clause (11) of the definition of "Permitted Indebtedness"; and
(10) other Investments not to exceed $15 million at any one time
outstanding.
"Permitted Junior Securities" means any securities of the Company or
any other Person that are:
(1) equity securities without special covenants; or
(2) unsecured debt securities expressly subordinated in right of
payment to all Senior Indebtedness that may at the time be outstanding, to
substantially the same extent as, or to a greater extent than, the Notes
are subordinated as provided in the Indenture, and that have a final
maturity date and a Weighted Average Life to Maturity which is at least
six months greater than the final maturity of such Senior Indebtedness (as
modified or issued in exchange for Senior Indebtedness by the plan of
reorganization or other court order pursuant to which such securities are
issued).
"Permitted Liens" means any of the following:
(1) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law (including
25
Liens for taxes, assessments and other governmental charges) incurred in
the ordinary course of business for sums not yet delinquent or as to which
the period of grace, if any, related thereto has not expired 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;
(2) Liens Incurred or deposits or pledges made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security or similar legislation or
obligations under customer servicer contracts, including any Lien securing
letters of credit issued in the ordinary course of business consistent
with past practice in connection therewith, or to secure the performance
of tenders, statutory obligations, surety and appeal bonds, bids, leases,
government performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(3) Liens securing a Capitalized Lease Obligation; provided, that
such Liens do not extend to any property which is not leased property
subject to such Capitalized Lease Obligation and property related thereto;
(4) purchase money Liens securing Purchase Money Indebtedness
Incurred to finance the acquisition of property of the Company or a
Restricted Subsidiary used in a Permitted Business; provided, that:
(a) the related Purchase Money Indebtedness shall not exceed
the cost of such property and shall not be secured by any property
of the Company or any Restricted Subsidiary other than the property
so acquired, and
(b) the Lien securing such Indebtedness shall be created
within 90 days of such acquisition;
(5) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(6) 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;
(7) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or a Restricted Subsidiary, including rights of offset and
set-off;
(8) Liens existing on the Issue Date and Liens to secure any
Refinancing Indebtedness which is Incurred to Refinance any Indebtedness
which has been secured by a Lien permitted under Section 3.16 and which
Indebtedness has been Incurred in accordance with Section 3.9; provided,
that such new Liens:
26
(a) are not materially less favorable to the Holders of
Notes and are not materially more favorable to the lienholders with
respect to such Liens than the Liens in respect of the Indebtedness
being Refinanced, and
(b) do not extend to any property or assets other than the
property or assets securing the Indebtedness Refinanced by such
Refinancing Indebtedness;
(9) Liens securing Acquired Indebtedness Incurred in accordance
with Section 3.9 not Incurred in connection with, or in anticipation or
contemplation of, the relevant acquisition, merger or consolidation;
provided, that:
(a) such Liens secured such Acquired Indebtedness at the
time of and prior to the Incurrence of such Acquired Indebtedness by
the Company or a Restricted Subsidiary and were not granted in
connection with, or in anticipation of the Incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary,
(b) such Liens do not extend to or cover any property of the
Company or any Restricted Subsidiary other than the property that
secured the Acquired Indebtedness prior to the time such
Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary and are no more favorable to the lienholders
than the Liens securing the Acquired Indebtedness prior to the
Incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary;
(10) Liens on Receivables Assets or Capital Stock of a Receivables
Subsidiary, in each case granted in connection with a Receivables
Transaction; and
(11) Any interest of a lessor in property subject to any operating
lease.
"Person" means an individual, partnership, corporation, company,
limited liability company, unincorporated organization, trust or joint venture,
or a governmental agency or political subdivision thereof.
"Post-Petition Interest" means all interest accrued or accruing
after the commencement of any insolvency or liquidation proceeding (and interest
that would accrue but for the commencement of any insolvency or liquidation
proceeding) in accordance with and at the contract rate (including any rate
applicable upon default) specified in the agreement or instrument creating,
evidencing or governing any Indebtedness, whether or not, pursuant to applicable
law or otherwise, the claim for such interest is allowed as a claim in such
insolvency or liquidation proceeding.
27
"Preferred Stock" of any Person means any Capital Stock of such
Person that has preferential rights over any other Capital Stock of such Person
with respect to dividends, distributions or redemptions or upon liquidation.
"Private Exchange Notes" shall have the meaning assigned to such
term in the Issue Date Registration Rights Agreement and any other Registration
Rights Agreement.
"Private Placement Legend" has the meaning assigned to it in Section
2.7(b).
"Purchase Money Indebtedness" means Indebtedness of the Company or
any Restricted Subsidiary Incurred for the purpose of financing all or any part
of the purchase price, or other cost of construction or improvement of any
property; provided, that the aggregate principal amount of such Indebtedness
does not exceed the lesser of the Fair Market Value of such property or such
purchase price or cost, including any Refinancing of such Indebtedness that does
not increase the aggregate principal amount (or accreted amount, if less)
thereof as of the date of Refinancing.
"QIB" means any "qualified institutional buyer" (as defined in Rule
144A).
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock and any warrants, rights or options to purchase or
acquire Capital Stock that is not Disqualified Capital Stock that are not
convertible into or exchangeable into Disqualified Capital Stock.
"Qualified Receivables Transaction" means any transaction or series
of transactions that may be entered into by the Company or any Restricted
Subsidiary pursuant to which the Company or any Restricted Subsidiary may sell,
convey, assign or otherwise transfer to a Receivables Entity any Receivables
Assets:
(1) for which no term of any portion of the Indebtedness or any
other obligations (contingent or otherwise) or securities Incurred or
issued by any Person in connection therewith:
(a) directly or indirectly provides for recourse to, or any
obligation of, the Company or any Restricted Subsidiary in any way,
whether pursuant to a Guarantee or otherwise, except for Standard
Undertakings,
(b) directly or indirectly subjects any property or asset of
the Company or any Restricted Subsidiary (other than Capital Stock
of a Receivables Subsidiary) to the satisfaction thereof, except for
Standard Undertakings, or
(c) results in such Indebtedness, other obligations or
securities constituting Indebtedness of the Company or a Restricted
Subsidiary, including following a default thereunder, and
28
(2) for which the terms of any Affiliate Transaction between
the Company or any Restricted Subsidiary, on the one hand, and any
Receivables Entity, on the other, other than Standard Undertakings
and Permitted Investments, are no less favorable than those that
could reasonably be expected to be obtained in a comparable
transaction at such time on an arm's length basis from a Person that
is not an Affiliate of the Company, and
(3) in connection with which, neither the Company nor any
Restricted Subsidiary has any obligation to maintain or preserve a
Receivables Entity's financial condition, cause a Receivables Entity
to achieve certain levels of operating results, fund losses of a
Receivables Entity or except in connection with Standard
Undertakings, purchase assets of a Receivables Entity.
"Receivables Assets" means (i) accounts receivable, leases,
conditional sale agreements instruments, chattel paper, installment sale
contracts, obligations, general intangibles, and other similar assets, in each
case relating to inventory or services of the Company and its Subsidiaries, (ii)
equipment and equipment residuals relating to any of the foregoing, (iii)
related contractual rights, guarantees, letters of credit, security interests,
liens, insurance proceeds, collections and other related assets and (iv)
proceeds of all of the foregoing.
"Receivables Entity" means a Receivables Subsidiary or any Person
not an Affiliate of the Company that engages in a Receivables Transaction or
issues securities or other interests in connection with a Receivables
Transaction.
"Receivables Subsidiary" means an Unrestricted Subsidiary of the
Company that engages in no activities other than Receivables Transactions and
activities related thereto and that is designated by the Board of Directors of
the Company as a Receivables Subsidiary. Any such designation by the Board of
Directors shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officer's Certificate.
"Receivables Transaction" means a Limited Recourse Receivables
Transaction or a Qualified Receivables Transaction.
"Record Date" has the meaning assigned to it in the Form of Face of
Note contained in Exhibit A.
"Redemption Date" means, with respect to any redemption of Notes,
the date fixed for such redemption pursuant to this Indenture and the Notes.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or
any Restricted Subsidiary, to the extent that such Refinancing does not:
29
(1) result in an increase in the Indebtedness of such Person which
exceeds an amount equal to the aggregate principal amount of the
Indebtedness of such Person as of the date of such proposed Refinancing
(plus the amount of any premium required to be paid under the terms of the
instrument governing such Indebtedness and plus the amount of reasonable
expenses incurred by the Company in connection with such Refinancing); or
(2) create Indebtedness with:
(a) a Weighted Average Life to Maturity that is less than
the Weighted Average Life to Maturity of the Indebtedness being
Refinanced or
(b) a final maturity earlier than the final maturity of the
Indebtedness being Refinanced; provided, that:
(i) if such Indebtedness being Refinanced is
Indebtedness of the Company, then such Refinancing
Indebtedness shall be Indebtedness of the Company,
(ii) if such Indebtedness being Refinanced is
Indebtedness of a Note Guarantor, then such Indebtedness
shall be Indebtedness of the Company and/or such Note
Guarantor, and
(iii) if such Indebtedness being Refinanced is
Subordinated Indebtedness, then such Refinancing
Indebtedness shall be subordinate to the Notes or the
relevant Note Guarantee, if applicable, at least to the
same extent and in the same manner as the Indebtedness
being Refinanced.
"Registered Exchange Offer" means an exchange offer by the Company
registered under the Securities Act pursuant to which Notes originally issued
pursuant to an exemption from registration under the Securities Act are
exchanged for Notes of like principal amount not bearing the Private Placement
Legend.
"Registrar" has the meaning assigned to it in Section 2.3(a).
"Registration Rights Agreement" means any registration rights
agreement between the Company, the Note Guarantors and one or more investment
banks acting as initial purchasers in connection with any issuance of Notes
under this Indenture, including the Issue Date Registration Rights Agreement.
"Registration Statement" means an effective Exchange Offer
Registration Statement or Shelf Registration Statement.
"Regulation S" means Regulation S under the Securities Act or any
successor regulation.
30
"Regulation S Global Note" has the meaning assigned to it in Section
2.1(e).
"Resale Restriction Termination Date" means, for any Restricted Note
that is an Issue Date Note (or beneficial interest therein), two years (or such
other period specified in Rule 144(k)) from the Issue Date or, for any
Additional Notes (or beneficial interests therein) that are Restricted Notes two
years (or such other period specified in Rule 144(k)) from the latest such
original issue date of such Additional Notes.
"Responsible Officer" means, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Note" means any Issue Date Note (or beneficial interest
therein) or any Additional Note (or beneficial interest therein) not originally
issued and sold pursuant to an effective registration statement under the
Securities Act until such time as:
(i) such Issue Date Note (or beneficial interest therein) or
Additional Note (or beneficial interest therein) has been exchanged for a
corresponding Exchange Note pursuant to an Exchange Offer Registration
Statement or has been transferred pursuant to a Shelf Registration
Statement;
(ii) the Resale Restriction Termination Date therefor has passed;
(iii) such Note is a Regulation S Global Note and the Distribution
Compliance Period therefor has terminated; or
(iv) the Private Placement Legend therefor has otherwise been
removed pursuant to Section 2.8(d) or, in the case of a beneficial
interest in a Global Note, such beneficial interest has been exchanged for
an interest in a Global Note not bearing a Private Placement Legend.
"Restricted Payment" has the meaning set forth in Section 3.10.
"Restricted Subsidiary" means any Subsidiary of the Company which at
the time of determination is not an Unrestricted Subsidiary.
"Revocation" has the meaning set forth in Section 3.13.
"Rule 144" means Rule 144 under the Securities Act (or any successor
rule).
"Rule 144A" means Rule 144A under the Securities Act (or any
successor rule).
"Rule 144A Global Note" has the meaning assigned to it in Section
2.1(d).
31
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party providing for
the leasing to the Company or a Restricted Subsidiary of any property, whether
owned by the Company or any Restricted Subsidiary at the Issue Date or later
acquired, which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person by whom funds have
been or are to be advanced on the security of such Property.
"SEC" means the Securities and Exchange Commission, or any successor
agency thereto with respect to the regulation or registration of securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means, at any date, with respect to the
Company or any Note Guarantor, as the case may be:
(1) all Obligations of the Company or such Note Guarantor, as the
case may be, under the Bank Credit Facilities, including all Hedging
Obligations with respect thereto;
(2) all Obligations in respect of Indebtedness of the Company or
such Note Guarantor, as the case may be, for borrowed money (including
Obligations in respect of Sale and Leaseback Transactions and Capitalized
Lease Obligations) and all Indebtedness (whether or not for borrowed
money) specified in clause (9) of the definition of "Indebtedness"; and
(3) all Obligations pursuant to Standard Undertakings.
Notwithstanding the preceding, Senior Indebtedness shall not include any
liability or Obligation of the Company or such Note Guarantor, as the case may
be, in respect of the following:
(1) U.S. federal, state, local, non-U.S. or other taxes;
(2) any Indebtedness among or between the Company and any
Subsidiary or Affiliate of the Company;
(3) any trade payables;
(4) that portion of any Indebtedness that is Incurred in violation
of the Indenture;
(5) any Disqualified Capital Stock;
(6) any Indebtedness that, when Incurred and without respect to
any election under Section 1111(b) of Title 11, United States Code, is
without recourse to the Company or such Note Guarantor, as the case may
be; or
(7) any Indebtedness that, by its express terms, is not senior in
right of payment to the Notes, in the case of the Company, or the relevant
Note Guarantee, in the
32
case of such Note Guarantor, or is subordinated in right of payment to any
other Indebtedness of the Company or such Note Guarantor, as the case may
be.
"Senior Subordinated Indebtedness" means, with respect to the
Company, the Notes and, with respect to any Note Guarantor, such Note
Guarantor's Note Guarantee, and any other Indebtedness of the Company or such
Note Guarantor, as the case may be that specifically provides that such
Indebtedness is to rank equal in right of payment with the Notes or such Note
Guarantor, as the case may be and is not subordinated by its terms in right of
payment to any Indebtedness or other obligation of the Company or such Note
Guarantor, as the case may be which is not Senior Indebtedness.
"Shelf Registration Statement" shall have the meaning assigned to
such term in the Issue Date Registration Rights Agreement and any other
Registration Rights Agreement.
"Significant Subsidiary" shall mean a Subsidiary of the Company
constituting a "Significant Subsidiary" in accordance with Rule 1-02(w) of
Regulation S-X under the Securities Act in effect on the date hereof, except
that all references to 10% in Rule 1-02(w) are replaced with 5%.
"Special Record Date" has the meaning assigned to it in Section
2.12(a).
"Standard Undertakings" means representations, warranties, covenants
and indemnities and similar obligations entered into by the Company or any
Subsidiary of the Company in connection with a Receivables Transaction and
which, in the case of a Qualified Receivables Transaction, are customary in
similar receivables securitization transactions and do not cause the
Indebtedness Incurred in connection therewith to constitute Indebtedness of the
Company or any Restricted Subsidiary, including following a default thereunder.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Indebtedness" means, with respect to the Company or
any Note Guarantor, any Indebtedness of the Company or such Note Guarantor, as
the case may be which is expressly subordinated in right of payment to the Notes
or the relevant Note Guarantee, as the case may be.
"Subsidiary," with respect to any Person, means any other Person of
which such Person owns, directly or indirectly, more than 50% of the voting
power of the other Person's outstanding Voting Stock.
"Successor Entity" has the meaning assigned to it in Section 4.1.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of
1939, as amended, as in effect on the date of this Indenture (except as
otherwise provided in this Indenture).
33
"Trustee" means the party named as such in the introductory
paragraph of this Indenture until a successor replaces it in accordance with the
terms of this Indenture and, thereafter, means the successor.
"U.S. Government Obligations" means (i) securities that are (a)
direct obligations of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (b)
obligations 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, are not callable or redeemable at the
option of the issuer thereof; and (ii) depositary receipts 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 (i) 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 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 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 of the U.S. Government Obligation evidenced by such
depositary receipt.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Unrestricted Subsidiary" means Fulton Funding Corporation, each
Receivables Subsidiary and any Subsidiary of the Company Designated as such
pursuant to Section 3.13. Any such Designation may be revoked by a Board
Resolution of the Company, subject to the provisions of such covenant.
"Voting Stock" with respect to any Person, means securities of any
class of Capital Stock of such Person entitling the holders thereof (whether at
all times or only so long as no senior class of stock has voting power by reason
of any contingency) to vote in the election of members of the Board of Directors
of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years (calculated to the nearest
one-twelfth) obtained by dividing:
(1) the then outstanding aggregate principal amount or liquidation
preference, as the case may be, of such Indebtedness into
(2) the sum of the products obtained by multiplying:
(a) the amount of each then remaining installment, sinking
fund, serial maturity or other required payment of principal or
liquidation preference, as the case may be, including payment at
final maturity, in respect thereof, by
34
(b) the number of years (calculated to the nearest
one-twelfth) which will elapse between such date and the making of
such payment.
"Wholly Owned Restricted Subsidiary" of the Company means any
Restricted Subsidiary of which all the outstanding Capital Stock (other than in
the case of a Restricted Subsidiary not organized in the United States,
directors' qualifying shares or an immaterial amount of shares required to be
owned by other Persons pursuant to applicable law) are owned by the Company or
any other Person that satisfies this definition of Wholly Owned Restricted
Subsidiary.
Section 1.2. Incorporation by Reference of Trust Indenture Act. If
any provision of this Indenture limits, qualifies or conflicts with the duties
that would be imposed by any of Sections 310 to 317 of the TIA through operation
of Section 318(c) thereof on any person if this Indenture were qualified under
the TIA, such imposed duties shall control.
"obligor" on the indenture securities means the Company and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by Rules or
Regulations of the SEC Rule have the meanings assigned to them by such
definitions.
Section 1.3. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "premium" means "premium, if any";
(4) "or" is not exclusive;
(5) "include", "includes", "including" means "include, without
limitation", "includes, without limitation", and "including, without
limitation";
(6) "will" means and has the same effect as the word "shall";
(7) words in the singular include the plural and words in the
plural include the singular; and
(8) references to the payment of principal of the Notes shall
include applicable premium, if any; and
(9) whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms.
35
ARTICLE II
THE NOTES
Section 2.1. Form and Dating.
(a) The Issue Date Notes are being originally offered and sold by
the Company pursuant to a Purchase Agreement, dated as of June 12, 2002, between
the Company, the Note Guarantors party hereto and First Union Securities, Inc.,
Credit Suisse First Boston Corporation, J.P. Morgan Securities Inc., Banc One
Capital Markets, Inc., BMO Nesbitt Burns Corp., BNY Capital Markets, Inc. and
Credit Lyonnais Securities (USA) Inc. The Notes will be issued in
fully-registered certificated form without coupons, and only in denominations of
$1,000 and any integral multiple thereof. The Notes and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A.
(b) The terms and provisions of the Notes, the form of which is in
Exhibit A, shall constitute, and are hereby expressly made, a part of this
Indenture, and, to the extent applicable, the Company, the Note Guarantors and
the Trustee, by their execution and delivery of this Indenture expressly agree
to such terms and provisions and to be bound thereby. Except as otherwise
expressly permitted in this Indenture, all Notes shall be identical in all
respects. Notwithstanding any differences among them, all Notes issued under
this Indenture shall vote and consent together on all matters as one class.
(c) The Notes may have notations, legends or endorsements as
specified in Section 2.7 or as otherwise required by law, stock exchange rule or
DTC rule or usage. The Company and the Trustee shall approve the form of the
Notes and any notation, legend or endorsement on them. Each Note shall be dated
the date of its authentication.
(d) Notes originally offered and sold to QIBs in reliance on Rule
144A will be issued in the form of one or more permanent Global Notes (each, a
"Rule 144A Global Note").
(e) Notes originally offered and sold outside the United States of
America will be issued in the form of one or more permanent Global Notes (each,
a "Regulation S Global Note").
Section 2.2. Execution and Authentication.
(a) Two Officers, one of whom shall be the Chairman of the Board,
the President, the Chief Executive Officer or the Chief Financial Officer of the
Company, shall sign the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the
time the Trustee authenticates the Note, the Note shall be valid nevertheless.
(b) A Note shall not be valid until an authorized signatory of the
Trustee manually authenticates the Note. The signature of the Trustee on a Note
shall be conclusive evidence that such Note has been duly and validly
authenticated and delivered under this Indenture.
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(c) At any time and from time to time after the execution and
delivery of this Indenture, the Trustee shall authenticate and make available
for delivery Notes upon a written order of the Company signed by two Officers or
by an Officer and either an Assistant Treasurer or an Assistant Secretary of the
Company (the "Company Order"). A Company Order shall specify the amount of the
Notes to be authenticated and the date on which the original issue of Notes is
to be authenticated. The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is limited to $275,000,000.
(d) The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Notes. Unless limited
by the terms of such appointment, any such Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by the Authenticating
Agent.
(e) In case a Successor Entity has executed an indenture
supplemental hereto with the Trustee pursuant to Article IV, any of the Notes
authenticated or delivered prior to such transaction may, from time to time, at
the request of the Successor Entity, be exchanged for other Notes executed in
the name of the Successor Entity with such changes in phraseology and form as
may be appropriate, but otherwise identical to the Notes surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Order of
the Successor Entity, shall authenticate and deliver Notes as specified in such
order for the purpose of such exchange. If Notes shall at any time be
authenticated and delivered in any new name of a Successor Entity pursuant to
this Section 2.2 in exchange or substitution for or upon registration of
transfer of any Notes, such Successor Entity, at the option of the Holders but
without expense to them, shall provide for the exchange of all Notes at the time
Outstanding for Notes authenticated and delivered in such new name.
Section 2.3. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency in the Borough
of Manhattan, City of New York, where Notes may be presented for registration of
transfer or for exchange (the "Registrar"), where Notes may be presented or
surrendered for payment (the "Paying Agent") and for the service of notices and
demands to or upon the Company in respect of the Notes and this Indenture. The
Registrar shall keep a register of the Notes and of their transfer and exchange
(the "Note Register"). The Company may have one or more co-Registrars and one or
more additional paying agents. The term "Paying Agent" includes any additional
paying agent.
(b) The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-Registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.7. The
Company or any Note Guarantor may act as Paying Agent, Registrar, co-Registrar
or transfer agent.
37
(c) The Company initially appoints the Trustee at its principal
corporate trust office in the Borough of Manhattan, City of New York (the
"Corporate Trust Office") as Registrar, Paying Agent and agent for service of
demands and notices in connection with the Notes and this Indenture, until such
time as another Person is appointed as such.
Section 2.4. Paying Agent to Hold Money in Trust. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that such
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
money held by such Paying Agent for the payment of principal of, or interest on,
the Notes and shall notify the Trustee in writing of any Default by the Company
or any Note Guarantor in making any such payment. If the Company or any Note
Guarantor or an Affiliate of the Company or any Note Guarantor acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent (other
than the Trustee) to pay all money held by it to the Trustee and to account for
any funds disbursed by such Paying Agent. Upon complying with this Section 2.4,
the Paying Agent (if other than the Company or a Note Guarantor) shall have no
further liability for the money delivered to the Trustee. Upon any proceeding
under any Bankruptcy Law with respect to the Company or any Note Guarantor or
any Affiliate of the Company or any Note Guarantor, if the Company, a Note
Guarantor or such Affiliate is then acting as Paying Agent, the Trustee shall
replace the Company, such Note Guarantor or such Affiliate as Paying Agent.
Section 2.5. Holder Lists. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Registrar, or to the
extent otherwise required under the TIA, the Company shall furnish to the
Trustee, in writing at least seven Business Days before each Interest Payment
Date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Holders.
Section 2.6. Global Note Provisions.
(a) Each Global Note initially shall: (i) be registered in the
name of DTC or the nominee of DTC, (ii) be delivered to the Note Custodian, and
(iii) bear the appropriate legend, as set forth in Section 2.7 and Exhibit A.
Any Global Note may be represented by more than one certificate. The aggregate
principal amount of each Global Note may from time to time be increased or
decreased by adjustments made on the records of the Note Custodian, as provided
in this Indenture.
(b) Members of, or participants in, DTC ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by DTC or by the Note Custodian under such Global Note, and DTC may
be treated by the Company, the Trustee, the Paying Agent and the Registrar and
any of their agents as the absolute owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee, the Paying Agent or the Registrar or any of their agents
from giving effect to any written certification, proxy or other authorization
furnished by DTC or impair, as between DTC and its Agent Members, the operation
of customary practices of DTC governing the exercise of the rights of an owner
of a beneficial interest in any Global Note. The registered
38
Holder of a Global Note may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent
Members, to take any action that a Holder is entitled to take under this
Indenture or the Notes.
(c) Except as provided below, owners of beneficial interests in
Global Notes will not be entitled to receive Certificated Notes. Certificated
Notes shall be issued to all owners of beneficial interests in a Global Note in
exchange for such interests if:
(i) DTC notifies the Company that it is unwilling or unable to
continue as depositary for such Global Note or DTC ceases to be a clearing
agency registered under the Exchange Act, at a time when DTC is required
to be so registered in order to act as depositary, and in each case a
successor depositary is not appointed by the Company within 90 days of
such notice,
(ii) the Company executes and delivers to the Trustee and Registrar
an Officers' Certificate stating that such Global Note shall be so
exchangeable, or
(iii) an Event of Default has occurred and is continuing and the
Registrar has received a request from DTC.
In connection with the exchange of an entire Global Note for Certificated Notes
pursuant to this paragraph (c), such Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
upon Company Order the Trustee shall authenticate and deliver, to each
beneficial owner identified by DTC in exchange for its beneficial interest in
such Global Note, an equal aggregate principal amount of Certificated Notes of
authorized denominations.
(d) In connection with the exchange of a portion of a Certificated
Note for a beneficial interest in a Global Note, the Trustee shall cancel such
Certificated Note, and the Company shall execute, and the Trustee shall
authenticate and deliver to the exchanging Holder, a new Certificated Note
representing the principal amount not so exchanged unless such principal amount
is to be exchanged for a beneficial interest in a Global Note pursuant to
Section 2.8(d).
Section 2.7. Legends.
(a) Each Global Note shall bear the legend specified therefor in
Exhibit A on the face thereof.
(b) Each Restricted Note shall bear the private placement legend
specified therefor in Exhibit A on the face thereof.
Section 2.8. Transfer and Exchange.
(a) The following provisions shall apply with respect to any
proposed transfer of an interest in a Rule 144A Global Note that is a Restricted
Note: If (1) the owner of a beneficial interest in a Rule 144A Global Note
wishes to transfer such interest (or portion thereof) to a Non-U.S. Person
pursuant to Regulation S and (2) such Non-U.S. Person wishes to
39
hold its interest in the Notes through a beneficial interest in the Regulation S
Global Note, (i) upon receipt by the Note Custodian and Registrar of:
(A) instructions from the Holder of the Rule 144A Global Note
directing the Note Custodian and Registrar to credit or cause to be
credited a beneficial interest in the Regulation S Global Note equal to
the principal amount of the beneficial interest in the Rule 144A Global
Note to be transferred, and
(B) a certificate in the form of Exhibit C from the transferor,
and (ii) subject to the rules and procedures of DTC, the Note Custodian and
Registrar shall increase the Regulation S Global Note and decrease the Rule 144A
Global Note by such amount in accordance with the foregoing.
(b) If the owner of an interest in a Regulation S Global Note
wishes to transfer such interest (or any portion thereof) to a QIB pursuant to
Rule 144A prior to the expiration of the Distribution Compliance Period
therefor, (i) upon receipt by the Note Custodian and Registrar of:
(A) instructions from the Holder of the Regulation S Global Note
directing the Note Custodian and Registrar to credit or cause to be
credited a beneficial interest in the Rule 144A Global Note equal to the
principal amount of the beneficial interest in the Regulation S Global
Note to be transferred, and
(B) a certificate in the form of Exhibit B duly executed by the
transferor,
and (ii) in accordance with the rules and procedures of DTC, the
Note Custodian and Registrar shall increase the Rule 144A Global Note and
decrease the Regulation S Global Note by such amount in accordance with the
foregoing.
(c) Other Transfers. Any transfer of Restricted Notes not
described above (other than a transfer of a beneficial interest in a Global Note
that does not involve an exchange of such interest for a Certificated Note or a
beneficial interest in another Global Note, which must be effected in accordance
with applicable law and the rules and procedures of DTC, but is not subject to
any procedure required by this Indenture) shall be made only upon receipt by the
Registrar of such opinions of counsel, certificates and/or other information
reasonably required by and satisfactory to it in order to ensure compliance with
the Securities Act or in accordance with Section 2.8(d).
(d) Use and Removal of Private Placement Legends. Upon the
transfer, exchange or replacement of Notes (or beneficial interests in a Global
Note) not bearing (or not required to bear upon such transfer, exchange or
replacement) a Private Placement Legend, the Note Custodian and Registrar shall
exchange such Notes (or beneficial interests) for beneficial interests in a
Global Note (or Certificated Notes if they have been issued pursuant to Section
2.6(c)) that does not bear a Private Placement Legend. Upon the transfer,
exchange or replacement of Notes (or beneficial interests in a Global Note)
bearing a Private Placement Legend, the Note Custodian and Registrar shall
deliver only Notes (or beneficial interests in a Global Note) that bear a
Private Placement Legend unless:
40
(i) such Notes (or beneficial interests) are exchanged in a
Registered Exchange Offer;
(ii) such Notes (or beneficial interests) are transferred pursuant
to a Shelf Registration Statement;
(iii) such Notes (or beneficial interests) are transferred pursuant
to Rule 144 upon delivery to the Registrar of a certificate of the
transferor in the form of Exhibit D and an Opinion of Counsel reasonably
satisfactory to the Registrar;
(iv) such Notes (or beneficial interests) are transferred, replaced
or exchanged after the Resale Restriction Termination Date therefor; or
(v) in connection with such transfer, exchange or replacement the
Registrar shall have received an Opinion of Counsel and other evidence
reasonably satisfactory to it, the Company and the Note Guarantors to the
effect that neither such Private Placement Legend nor the related
restrictions on transfer are required in order to maintain compliance with
the provisions of the Securities Act.
The Private Placement Legend on any Note shall be removed at the request of the
Holder on or after the Resale Restriction Termination Date therefor. The Holder
of a Global Note may exchange an interest therein for an equivalent interest in
a Global Note not bearing a Private Placement Legend (other than a Regulation S
Global Note) upon transfer of such interest pursuant to any of clauses (i)
through (v) of this paragraph (d). The Company and the Note Guarantors shall
deliver to the Trustee an Officers' Certificate promptly upon effectiveness,
withdrawal or suspension of any Registration Statement.
(e) Consolidation of Global Notes and Exchange of Certificated
Notes for Beneficial Interests in Global Notes. If a Global Note not bearing a
Private Placement Legend (other than a Regulation S Global Note) is Outstanding
at the time of a Registered Exchange Offer, any interests in a Global Note
exchanged in such Registered Exchange Offer shall be exchanged for interests in
such Outstanding Global Note.
(f) Retention of Documents. The Registrar shall retain copies of
all letters, notices and other written communications received pursuant to this
Article II. 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 written notice to the Registrar.
(g) Execution, Authentication of Notes, etc.
(i) Subject to the other provisions of this Section 2.8,
when Notes are presented to the Registrar or a co-Registrar with a request
to register the transfer of such Notes or to exchange such Notes for an
equal principal amount of Notes of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange
as requested if its requirements for such transaction are met; provided
that any Notes presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the
41
Registrar or co-Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing. To permit registrations of transfers
and exchanges and subject to the other terms and conditions of this
Article II, the Company will execute and upon Company Order, the Trustee
will authenticate Certificated Notes and Global Notes at the Registrar's
or co-Registrar's request. In accordance with the Issue Date Registration
Rights Agreement, upon the effectiveness of any Exchange Offer
Registration Statement, the Company will execute and upon Company Order,
the Trustee will authenticate Exchange Notes or Private Exchange Notes, as
the case may be, in exchange for Issue Date Notes. In accordance with a
Registration Rights Agreement in respect of Additional Notes, upon the
effectiveness of any Exchange Offer Registration Statement in respect of
such Additional Notes, the Company will execute and upon Company Order,
the Trustee will authenticate Exchange Notes in exchange for such
Additional Notes.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental charges payable upon
exchange or transfer pursuant to a Registered Exchange Offer or to Section
3.8, 3.11, 5.1 or 9.5).
(iii) The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of any Note for a period beginning:
(1) 15 days before the mailing of a notice of an offer to repurchase or
redeem Notes and ending at the close of business on the day of such
mailing or (2) 15 days before an Interest Payment Date and ending on such
Interest Payment Date.
(iv) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent, the
Registrar or any co-Registrar may deem and treat the person in whose name
a Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Note and for all
other purposes whatsoever, whether or not such Note is overdue, and none
of the Company, the Trustee, the Paying Agent, the Registrar or any
co-Registrar shall be affected by notice to the contrary.
(v) All Notes issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation
to any beneficial owner of an interest in a Global Note, a member of, or a
participant in, DTC or other Person with respect to the accuracy of the
records of DTC or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes or with respect to the
delivery to any participant, member, beneficial owner or other Person
(other than DTC) of any notice (including any notice of redemption) or the
payment of any amount or delivery of any Notes (or other security or
property) under or with respect
42
to such Notes. All notices and communications to be given to the Holders
and all payments to be made to Holders in respect of the Notes shall be
given or made only to or upon the order of the registered Holders (which
shall be DTC or its nominee in the case of a Global Note). The rights of
beneficial owners in any Global Note shall be exercised only through DTC
subject to the applicable rules and procedures of DTC. The Trustee may
rely and shall be fully protected in relying upon information furnished by
DTC with respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among DTC participants, members or beneficial owners in any Global Note)
other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes.
(a) If a mutilated Note is surrendered to the Registrar or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall execute and upon Company Order the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 of the
Uniform Commercial Code are met and the Holder satisfies any other reasonable
requirements of the Trustee. If required by the Trustee or the Company, such
Holder shall furnish an affidavit of loss and indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-Registrar from any loss that any of them
may suffer if a Note is replaced, and, in the absence of notice to the Company
or the Trustee that such Note has been acquired by a protected purchaser, the
Company shall execute and upon Company Order the Trustee shall authenticate and
make available for delivery, in exchange for any such mutilated Note or in lieu
of any such destroyed, lost or stolen Note, a new Note of like tenor and
principal amount, bearing a number not contemporaneously Outstanding.
(b) Upon the issuance of any new Note under this Section 2.9, 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) in connection
therewith.
(c) Every new Note issued pursuant to this Section 2.9 in exchange
for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, shall
constitute an original additional contractual obligation of the Company, any
Note Guarantor and any other obligor upon the Notes, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
Section 2.10. Temporary Notes. Until definitive Notes are ready for
delivery, the Company may execute and upon Company Order the Trustee will
authenticate temporary Notes.
43
Temporary Notes will be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company will prepare and execute and upon
Company Order the Trustee will authenticate definitive Notes. After the
preparation of definitive Notes, the temporary Notes will be exchangeable for
definitive Notes upon surrender of the temporary Notes at any office or agency
maintained by the Company for that purpose and such exchange shall be without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company will execute and upon Company Order the Trustee
will authenticate and make available for delivery in exchange therefor one or
more definitive Notes representing an equal principal amount of Notes. Until so
exchanged, the Holder of temporary Notes shall in all respects be entitled to
the same benefits under this Indenture as a Holder of definitive Notes.
Section 2.11. Cancellation. The Company at any time may deliver
Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel and
dispose of cancelled Notes in accordance with its policy of disposal or return
to the Company all Notes surrendered for registration of transfer, exchange,
payment or cancellation. The Company may not issue new Notes to replace Notes it
has paid or delivered to the Trustee for cancellation for any reason other than
in connection with a transfer or exchange upon Company Order.
Section 2.12. Defaulted Interest. When any installment of interest
becomes Defaulted Interest, such installment shall forthwith cease to be payable
to the Holders in whose names the Notes were registered on the Record Date
applicable to such installment of interest. Defaulted Interest (including any
interest on such Defaulted Interest) may be paid by the Company, at its
election, as provided in clause (a) or (b) below.
(a) The Company may elect to make payment of any Defaulted
Interest (including any interest on such Defaulted Interest) to the
Holders in whose names the Notes are registered at the close of business
on a special record date for the payment of such Defaulted Interest (a
"Special Record Date"), which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid 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 Holders entitled
to such Defaulted Interest as provided in this clause (a). Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest, which shall be not more than 15 calendar days and not less than
ten calendar days prior to the date of the proposed payment and not less
than ten calendar 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 sent, first-class
mail, postage prepaid, to each Holder at such Holder's address as it
appears in the registration books of the Registrar, not less than ten
calendar days prior to such Special Record Date. Notice of the proposed
payment of such
44
Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Holders in
whose names the Notes are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (b).
(b) Alternatively, the Company may make payment of any Defaulted
Interest (including any interest on such Defaulted Interest) in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes 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 (b), such manner
of payment shall be deemed practicable by the Trustee.
Section 2.13. Additional Notes. The Company may, from time to time,
subject to compliance with any other applicable provisions of this Indenture,
without the consent of the Holders, create and issue pursuant to this Indenture
additional notes ("Additional Notes") having terms and conditions set forth in
Exhibit A identical to those of the other Outstanding Notes, except that
Additional Notes:
(i) may have a different issue date from other Outstanding Notes;
(ii) may have a different amount of interest payable on the first
Interest Payment Date after issuance than is payable on other Outstanding
Notes;
(iii) may have terms specified in the Additional Note Board
Resolution or Additional Note Supplemental Indenture for such Additional
Notes making appropriate adjustments to this Article II and Exhibit A (and
related definitions) applicable to such Additional Notes in order to
conform to and ensure compliance with the Securities Act (or other
applicable securities laws) and any registration rights or similar
agreement applicable to such Additional Notes, which are not adverse in
any material respect to the Holder of any Outstanding Notes (other than
such Additional Notes), provided, that no such adjustment shall cause such
Additional Notes to constitute, as determined pursuant to an Opinion of
Counsel, a different class of securities than the Issue Date Notes for
U.S. federal income tax purposes except for Additional Notes that have a
separate CUSIP number from other Outstanding Notes pending performance
under a Registration Rights Agreement applicable thereto; and
(iv) may be entitled to additional interest as provided in Section
2.14 not applicable to other Outstanding Notes and may not be entitled to
such additional interest applicable to other Outstanding Notes.
Section 2.14. Additional Interest Under Registration Rights
Agreements. Under certain circumstances, the Company may be obligated to pay
additional interest to Holders, all as and to the extent set forth in the Issue
Date Registration Rights Agreement or any Registration Rights Agreement
applicable to Additional Notes. The terms thereof are hereby incorporated herein
by reference and such additional interest is deemed to be interest for purposes
of this Indenture.
45
ARTICLE III
COVENANTS
Section 3.1. Payment of Notes.
(a) The Company shall pay the principal of and interest (including
Defaulted Interest) on the Notes in U.S. Legal Tender on the dates and in the
manner provided in the Notes and in this Indenture. Subject to the provisions of
Section 2.12, prior to 10:00 a.m. New York City time on each Interest Payment
Date and the Maturity Date, the Company shall deposit with the Paying Agent in
immediately available funds U.S. Legal Tender sufficient to make cash payments
due on such Interest Payment Date or Maturity Date, as the case may be. If the
Company, a Note Guarantor or an Affiliate of the Company or a Note Guarantor is
acting as Paying Agent, the Company, such Note Guarantor or such Affiliate
shall, prior to 10:00 a.m. New York City time on each Interest Payment Date and
the Maturity Date, segregate and hold in trust U.S. Legal Tender sufficient to
make cash payments due on such Interest Payment Date or Maturity Date, as the
case may be. Principal and interest shall be considered paid on the date due if
on such date the Trustee or the Paying Agent (other than the Company, a Note
Guarantor or an Affiliate of the Company or a Note Guarantor) holds in
accordance with this Indenture U.S. Legal Tender designated for and sufficient
to pay all principal and interest then due and the Trustee or the Paying Agent,
as the case may be, is not prohibited from paying such money to the Holders on
that date pursuant to the terms of this Indenture.
(b) Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
Section 3.2. Maintenance of Office or Agency.
(a) The Company shall maintain each office or agency required
under Section 2.3. The Company will give prompt written notice to the Trustee of
any change in the location of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the 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.
(b) The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such other
office or agency.
46
Section 3.3. Corporate Existence. Subject to Article IV, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence.
Section 3.4. Payment of Taxes and Other Claims. The Company will pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all material taxes, assessments and governmental charges levied
or imposed upon the Company or any Restricted Subsidiary or for which it or any
of them are otherwise liable, or upon the income, profits or property of the
Company or any Restricted Subsidiary and (ii) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a liability or
Lien upon the property of the Company or any Restricted Subsidiary; 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 and for which appropriate reserves, if necessary (in the good faith
judgment of management of the Company), are being maintained in accordance with
GAAP or where the failure to effect such payment will not be disadvantageous to
the Holders.
Section 3.5. Compliance Certificate. (a) The Company and each Note
Guarantor shall deliver to the Trustee within 105 days after the end of each
fiscal year of the Company an Officers' Certificate, one of the signers of which
is the chief executive, chief financial or chief accounting officer of the
Company, that complies with TIA Section 314(a)(4), stating that in the course of
the performance by the signers of their duties as Officers of the Company or the
Note Guarantor they would normally have knowledge of any Default or Event of
Default and whether or not the signers know of any Default or Event of Default
that occurred during such period. If they do, the certificate shall describe the
Default or Event of Default, its status and what action the Company or such Not
Guarantor is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current generally
applicable recommendations of the American Institute of Certified Public
Accountants (or any successor organization) or to the generally applicable
policies of the Company's independent accountants, the annual Officers'
Certificate delivered pursuant to this Section 3.5 to the Trustee shall be
accompanied by a written report of the Company's independent accountants (who
shall be a firm of established national reputation) that in conducting their
audit of the financial statements of the Company for the most recent fiscal year
nothing has come to their attention that would lead them to believe that a
Default or Event of Default under this Indenture has occurred insofar as they
relate to accounting matters or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation that would not be disclosed
in the course of an audit examination conducted in accordance with GAAP.
Section 3.6. Further Instruments and Acts. The Company and each Note
Guarantor will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper or as the Trustee may reasonably
request to carry out more effectively the purpose of this Indenture.
Section 3.7. Waiver of Stay, Extension or Usury Laws. The Company
and each Note Guarantor covenants (to the extent that it may lawfully do so)
that it will not at any time
47
insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law that would
prohibit or forgive the Company or such Note Guarantor from paying all or any
portion of the principal of or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture. The Company and each Note
Guarantor hereby expressly waives (to the extent that it may lawfully do so) all
benefit or advantage of any such law, and covenants (to the extent that it may
lawfully do so) that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 3.8 Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will
have the right to require that the Company purchase all or a portion (in
integral multiples of $1,000) of the Holder's Notes at a purchase price equal to
101% of the principal amount thereof, plus accrued and unpaid interest thereon
to, but excluding, the date of purchase (the "Change of Control Payment").
(b) Within 20 days following the date upon which the Change of
Control occurred, the Company must send, by first-class mail, postage prepaid, a
notice to the record Holders as shown on the Note Register, with a copy to the
Trustee, offering to purchase the Notes as described above (a "Change of Control
Offer"). The Change of Control Offer shall state, among other things, the
purchase date, which must be no earlier than 30 days nor later than 60 days from
the date the notice is mailed, other than as may be required by law (the "Change
of Control Payment Date").
(c) On the Change of Control Payment Date, the Company will, to
the extent lawful:
(1) accept for payment all Notes or portions thereof properly
tendered and not withdrawn pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent funds in an amount equal to the
Change of Control Payment in respect of all Notes or portions thereof so
tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the
Company.
(d) If only a portion of a Note is purchased pursuant to a Change
of Control Offer, a new Note in a principal amount equal to the portion thereof
not purchased will be issued in the name of the Holder thereof upon cancellation
of the original Note (or appropriate adjustments to the amount and beneficial
interests in a Global Note will be made, as appropriate). Notes (or portions
thereof) purchased pursuant to a Change of Control Offer will be cancelled and
cannot be reissued.
48
(e) Holders will not be entitled to require the Company to
purchase their Notes in the event of a takeover, recapitalization, leveraged
buyout or similar transaction which is not a Change of Control.
(f) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other applicable securities laws and regulations
in connection with the purchase of Notes in connection with a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations
conflict with this Section 3.8, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under this Indenture by doing so.
Section 3.9 Limitation on Incurrence of Additional Indebtedness.
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness,
including Acquired Indebtedness, or permit any Restricted Subsidiary to Incur
Preferred Stock, other than Permitted Indebtedness, except that:
(1) the Company and any Note Guarantor may Incur Indebtedness,
including Acquired Indebtedness, and
(2) any Restricted Subsidiary may Incur Acquired Indebtedness not
Incurred in connection with, or in anticipation or contemplation of, the
relevant acquisition, merger or consolidation,
if, at the time of and immediately after giving pro forma effect to the
Incurrence thereof and the application of the proceeds therefrom, the
Consolidated Fixed Charge Coverage Ratio of the Company and its consolidated
Subsidiaries is greater than 2.25 to 1.0.
(b) Notwithstanding Section 3.9(a), the Company and its Restricted
Subsidiaries may Incur Permitted Indebtedness as provided in the definition
thereof.
(c) For purposes of determining compliance with, and the
outstanding principal amount of, any particular Indebtedness Incurred pursuant
to and in compliance with this covenant, the amount of Indebtedness issued at a
price that is less than the principal amount thereof will be equal to the amount
of the liability in respect thereof determined in accordance with GAAP. Accrual
of interest, accretion of original issue discount, payment of regularly
scheduled interest in the form of additional Indebtedness of the same instrument
or payment of regularly scheduled dividends on Disqualified Stock or Preferred
Stock in the form of additional Disqualified Stock or Preferred Stock of the
same series will not be deemed to be an Incurrence of Indebtedness or Preferred
Stock for purposes of this covenant. For purposes of determining compliance with
this covenant, in the event that an item of Indebtedness meets more than one of
the types of Permitted Indebtedness, the Company, in its sole discretion, shall
classify such item of Indebtedness and only be required to classify the amount
and type of such Indebtedness under one type of Permitted Indebtedness and may
allocate portions of such Indebtedness to more than one type of Permitted
Indebtedness to the extent applicable.
Section 3.10 Limitation on Restricted Payments.
49
(a) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, take any of the following
actions (each, a "Restricted Payment"):
(1) declare or pay any dividend or return of capital or make any
distribution on or in respect of shares of Capital Stock of the Company or
any Restricted Subsidiary to holders of such Capital Stock, other than:
(i) dividends or distributions payable in Qualified Capital Stock
of the Company,
(ii) dividends or distributions payable to the Company and/or a
Restricted Subsidiary, or
(iii) pro rata dividends or distributions to the Company and/or a
Restricted Subsidiary and minority holders of Capital Stock of
a Restricted Subsidiary;
(2) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company or any Restricted Subsidiary, or any direct
or indirect parent of the Company, other than Capital Stock held by the
Company or another Restricted Subsidiary;
(3) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund
payment, as the case may be, any Subordinated Indebtedness; or
(4) make any Investment (other than Permitted Investments);
if at the time of the Restricted Payment immediately after giving effect
thereto:
(A) a Default or an Event of Default shall have occurred and be
continuing;
(B) the Company is not able to Incur at least $1.00 of additional
Indebtedness pursuant to Section 3.9(a); or
(C) the aggregate amount (the amount expended for these purposes,
if other than in cash, being the Fair Market Value of the relevant property) of
the proposed Restricted Payment and Restricted Payments, including Restricted
Payments made pursuant to Section 3.10(b)(1), (4) and (5), made subsequent to
the Issue Date up to the date thereof, less any Investment Return calculated as
of the date thereof, shall exceed the sum of:
(i) 50% of cumulative Consolidated Net Income or, if cumulative
Consolidated Net Income is a loss, minus 100% of the loss,
accrued during the period, treated as one accounting period,
beginning on the first full fiscal quarter
50
after the Issue Date to the end of the most recent fiscal
quarter for which consolidated financial information of the
Company is available;
plus
(ii) 100% of the aggregate net cash proceeds received by the
Company from any Person from any:
(x) (a) contribution to the equity capital of the Company
not representing an interest in Disqualified Capital
Stock or (b) issuance and sale of Qualified Capital
Stock of the Company, in each case, subsequent to the
Issue Date, or
(y) issuance and sale subsequent to the Issue Date (and, in
the case of Indebtedness of a Restricted Subsidiary, at
such time as it was a Restricted Subsidiary) of any
Indebtedness for borrowed money of the Company or any
Restricted Subsidiary that has been converted into or
exchanged for Qualified Capital Stock of the Company,
excluding, in each case, any net cash proceeds:
(1) received from a Subsidiary of the Company,
(2) from an Equity Offering and used to redeem Notes
pursuant to paragraph 5 of the Form of Reverse Side of
Note contained in Exhibit A,
(3) used to acquire assets or Capital Stock from an
Affiliate of the Company, or
(4) applied in accordance with Section 3.10(b)(2) or (3);
plus
(iii) $15 million (less the amount of Restricted Payments made
pursuant to Section 3.10(b)(5)).
(b) Notwithstanding the preceding Section 3.10(a), this covenant
does not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration of such dividend if the dividend would have been permitted
pursuant to Section 3.10(a) on the date of declaration;
(2) if no Default or Event of Default shall have occurred and be
continuing, the acquisition of any shares of Capital Stock of the Company,
(i) in exchange for Qualified Capital Stock of the Company or
51
(ii) through the application of the net cash proceeds received by
the Company from a substantially concurrent sale of Qualified
Capital Stock of the Company or a contribution to the equity
capital of the Company not representing an interest in
Disqualified Capital Stock, in each case not received from a
Subsidiary of the Company;
provided, that the value of any such Qualified Capital Stock issued in
exchange for such acquired Capital Stock and any such net cash proceeds
shall be excluded from Section 3.10(a)(C)(ii); and
(3) if no Default or Event of Default shall have occurred and be
continuing, the voluntary prepayment, purchase, defeasance, redemption or
other acquisition or retirement for value of any Subordinated Indebtedness
solely in exchange for, or through the application of net cash proceeds of
a substantially concurrent sale, other than to a Subsidiary of the
Company, of:
(i) Qualified Capital Stock of the Company or
(ii) Refinancing Indebtedness for such Subordinated Indebtedness;
provided, that the value of any Qualified Capital Stock issued in exchange
for Subordinated Indebtedness and any net cash proceeds referred to above
shall be excluded from Section 3.10(a)(C)(ii);
(4) if no Default or Event of Default shall have occurred and be
continuing, repurchases by the Company of Common Stock of the Company or
options, warrants or other securities exercisable or convertible into
Common Stock of the Company from employees or directors of the Company or
any of its Subsidiaries or their authorized representatives upon the
death, disability or termination of employment or directorship of the
employees or directors, in an amount not to exceed $2.5 million in the
aggregate (excluding any amount reimbursed to the Company pursuant to
insurance policies or other third party payments); and
(5) Restricted Payments of up to $200,000 in the aggregate.
(c) In determining the aggregate amount of Restricted Payments
made subsequent to the Issue Date, amounts expended pursuant to Section
3.10(b)(1) (without duplication for the declaration of the relevant dividend),
(4) and (5) shall be included in such calculation, and amounts expended pursuant
to Section 3.10(b)(2) and (3) shall not be included in such calculation.
Section 3.11 Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
52
(1) the Company or the applicable Restricted Subsidiary, as the
case may be, receives consideration at the time of the Asset Sale at least
equal to the Fair Market Value of the assets sold or otherwise disposed
of, and
(2) at least 75% of the consideration received for the assets sold
by the Company or the Restricted Subsidiary, as the case may be, in the
Asset Sale shall be in the form of cash or Cash Equivalents received at
the time of such Asset Sale.
(b) The Company or such Restricted Subsidiary, as the case may be,
may apply the Net Cash Proceeds of any such Asset Sale within 365 days thereof
to:
(1) repay any Senior Indebtedness of the Company or any Note
Guarantor or Indebtedness of any Restricted Subsidiary that is not a Note
Guarantor, in each case for borrowed money or constituting a Capitalized
Lease Obligation, and permanently reduce the commitments with respect
thereto without Refinancing, or
(2) purchase:
(i) assets (other than current assets as determined in accordance
with GAAP) to be used by the Company or any Restricted
Subsidiary in connection with its ongoing business operations,
(ii) Capital Stock of a Person engaged solely in a Permitted
Business that will become, upon purchase, a Restricted
Subsidiary
from a Person other than the Company and its Restricted Subsidiaries.
(c) To the extent all or a portion of the Net Cash Proceeds of any
Asset Sale are not applied within the 365 days of the Asset Sale as described in
Section 3.11(b)(1) or (2), the Company will make an offer to purchase Notes (the
"Asset Sale Offer"), at a purchase price equal to 100% of the principal amount
of the Notes to be purchased, plus accrued and unpaid interest thereon, to, but
excluding, the date of purchase (the "Asset Sale Offer Amount"). Pursuant to an
Asset Sale Offer, the Company shall purchase from all tendering Holders on a pro
rata basis, and, at the Company's option, on a pro rata basis with the holders
of any other Senior Subordinated Indebtedness with similar provisions requiring
the Company to offer to purchase the other Senior Subordinated Indebtedness with
the proceeds of Asset Sales, that principal amount (or accreted value in the
case of Indebtedness issued with original issue discount) of Notes and the other
Senior Subordinated Indebtedness to be purchased equal to such unapplied Net
Cash Proceeds.
(d) The purchase of Notes pursuant to an Asset Sale Offer shall
occur not less than 20 Business Days following the date thereof, or any longer
period as may be required by law, nor more than 45 days following the 365th day
following the Asset Sale. The Company may, however, defer an Asset Sale Offer
until there is an aggregate amount of unapplied Net Cash Proceeds from one or
more Asset Sales equal to or in excess of $5 million. At that time, the entire
amount of unapplied Net Cash Proceeds, and not just the amount in excess of $5
million, shall be applied as required pursuant to this covenant. Pending
application in
53
accordance with this covenant, Net Cash Proceeds shall be applied to temporarily
reduce revolving credit borrowings which can be reborrowed or invested in Cash
Equivalents.
(e) Each Asset Sale Offer Notice will be mailed first class,
postage prepaid, to the record Holders as shown on the Note Register within 20
days following such 365th day, with a copy to the Trustee offering to purchase
the Notes as described in Section 3.11(c). Each notice of an Asset Sale Offer
shall state, among other things, the purchase date, which must be no earlier
than 30 days nor later than 60 days from the date the notice is mailed, other
than as may be required by law (the "Asset Sale Offer Payment Date"). Upon
receiving an Asset Sale Offer Notice, Holders may elect to tender their Notes in
whole or in part in integral multiples of $1,000 in exchange for cash.
(f) On the Asset Sale Offer Payment Date, the Company will, to the
extent lawful:
(1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Asset Sale Offer;
(2) deposit with the Paying Agent funds in an amount equal to the
Asset Sale Offer Amount in respect of all Notes or portions thereof so
tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the
Company.
(g) To the extent Holders of Notes and holders of other Senior
Subordinated Indebtedness, if any, which are the subject of an Asset Sale Offer
properly tender and do not withdraw Notes or the other Senior Subordinated
Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash
Proceeds, the Company will purchase the Notes and the other Senior Subordinated
Indebtedness on a pro rata basis (based on amounts so tendered). If only a
portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a
principal amount equal to the portion thereof not purchased will be issued in
the name of the Holder thereof upon cancellation of the original Note (or
appropriate adjustments to the amount and beneficial interests in a Global Note
will be made, as appropriate). Notes (or portions thereof) purchased pursuant to
an Asset Sale Offer will be cancelled and cannot be reissued.
(h) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other applicable securities laws in connection
with the purchase of Notes pursuant to an Asset Sale Offer. To the extent that
the provisions of any applicable securities laws or regulations conflict with
this Section 3.11, the Company shall comply with these laws and regulations and
shall not be deemed to have breached its obligations under this Section 3.11 of
the Indenture by doing so.
(i) Upon completion of an Asset Sale Offer, the amount of Net Cash
Proceeds will be reset at zero. Accordingly, to the extent that the aggregate
amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer
is less than the aggregate amount of unapplied Net Cash Proceeds, the Company
may use any remaining Net Cash Proceeds for general corporate purposes of the
Company and its Restricted Subsidiaries.
54
(j) In the event of the transfer of substantially all (but not
all) of the property and assets of the Company and its Restricted Subsidiaries
as an entirety to a Person in a transaction permitted under Section 4.1, the
Successor Entity shall be deemed to have sold the properties and assets of the
Company and its Restricted Subsidiaries not so transferred for purposes of this
covenant, and shall comply with the provisions of this covenant with respect to
the deemed sale as if it were an Asset Sale. In addition, the Fair Market Value
of properties and assets of the Company or its Restricted Subsidiaries so deemed
to be sold shall be deemed to be Net Cash Proceeds for purposes of this
covenant.
(k) If at any time any non-cash consideration received by the
Company or any Restricted Subsidiary, as the case may be, in connection with any
Asset Sale is converted into or sold or otherwise disposed of for cash (other
than interest received with respect to any non-cash consideration), the
conversion or disposition shall be deemed to constitute an Asset Sale hereunder
and the Net Cash Proceeds thereof shall be applied in accordance with this
covenant within 365 days of conversion or disposition.
Section 3.12 Limitation on Ownership and Sale of Capital Stock of
Restricted Subsidiaries.
(a) The Company will not permit any Person other than the Company
or another Restricted Subsidiary to, directly or indirectly, own or control any
Capital Stock of any Restricted Subsidiary, except for:
(1) in the case of a Restricted Subsidiary not organized in the
United States, directors' qualifying shares or an immaterial number of
shares required to be owned by other Persons pursuant to applicable law;
(2) the sale of 100% of the shares of the Capital Stock of any
Restricted Subsidiary held by the Company and its Restricted Subsidiaries
to any Person other than the Company or another Restricted Subsidiary
effected in accordance with, as applicable, Section 3.11 and Section 4.1;
and
(3) in the case of a Restricted Subsidiary other than a Wholly
Owned Restricted Subsidiary, the issuance by that Restricted Subsidiary of
Capital Stock on a pro rata basis to the Company and its Restricted
Subsidiaries, on the one hand, and minority shareholders of the Restricted
Subsidiary, on the other hand, (or on less than a pro rata basis to any
minority shareholder if the minority shareholder does not acquire its pro
rata amount).
Section 3.13 Limitation on Designation of Unrestricted Subsidiaries.
(a) The Company may designate after the Issue Date any Subsidiary
of the Company as an "Unrestricted Subsidiary" under this Section 3.13 (a
"Designation") only if:
(1) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation and
any transactions between the Company or any of its Restricted Subsidiaries
and such Unrestricted Subsidiary are in compliance with Section 3.17;
55
(2) at the time of and after giving effect to such Designation,
the Company could Incur $1.00 of additional Indebtedness pursuant to
Section 3.9(a); and
(3) the Company would be permitted to make an Investment at the
time of Designation (assuming the effectiveness of such Designation and
treating such Designation as an Investment at the time of Designation)
pursuant to Section 3.10(a) (other than a Permitted Investment) in an
amount (the "Designation Amount") equal to the amount of the Company's
Investment in such Subsidiary on such date.
(b) Neither the Company nor any Restricted Subsidiary will at any
time 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, except (1) for any non-recourse
guarantee given solely to support the pledge by the Company or any Restricted
Subsidiary of the Capital Stock of any Unrestricted Subsidiary or (2) to the
extent that the ability to declare a default or accelerate the payment is
limited to a default or acceleration on the obligation or instrument of the
Company or a Restricted Subsidiary treated as a Restricted Payment and
Incurrence of Indebtedness incurred in accordance with Section 3.9 and Section
3.10.
(c) The Company may revoke any Designation of a Subsidiary (other
than a Receivables Subsidiary) as an Unrestricted Subsidiary (a "Revocation")
only if:
(1) No Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such Revocation; and
(2) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if Incurred at
such time, have been permitted to be Incurred for all purposes of the
Indenture.
(d) The Designation of a Subsidiary of the Company as an
Unrestricted Subsidiary shall be deemed to include the Designation of all of the
Subsidiaries of such Subsidiary. All Designations and Revocations must be
evidenced by a Board Resolution delivered to the Trustee certifying compliance
with the preceding provisions.
Section 3.14. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.
(a) Except as provided in Section 3.14(b), the Company will not,
and will not cause or permit any of its Restricted Subsidiaries to, directly or
indirectly, create or otherwise cause or permit to exist or become effective any
encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on or in respect
of its Capital Stock to the Company or any other Restricted Subsidiary or
pay any Indebtedness owed to the Company or any other Restricted
Subsidiary;
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(2) make loans or advances to, or Guarantee any Indebtedness or
other obligations of, or make any Investment in, the Company or any other
Restricted Subsidiary; or
(3) transfer any of its property or assets to the Company or any
other Restricted Subsidiary.
(b) Section 3.14(a) will not apply to encumbrances or restrictions
existing under or by reason of:
(1) applicable law;
(2) the Indenture;
(3) the Bank Credit Facilities as in effect on the Issue Date, and
any amendments, restatements, renewals, replacements or refinancings
thereof; provided, that any amendment, restatement, renewal, replacement
or refinancing is not materially more restrictive with respect to such
encumbrances or restrictions than those in existence on the Issue Date;
(4) customary non-assignment provisions of any contract and
customary provisions restricting assignment or subletting in any lease
governing a leasehold interest of any Restricted Subsidiary, or any
customary restriction on the ability of a Restricted Subsidiary to
dividend, distribute or otherwise transfer any asset which secures
Indebtedness secured by a Lien, in each case permitted to be Incurred
under the Indenture;
(5) any instrument governing Acquired Indebtedness not Incurred in
connection with, or in anticipation or contemplation of, the relevant
acquisition, merger or consolidation, which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person,
other than the Person or the properties or assets of the Person so
acquired;
(6) restrictions with respect to a Restricted Subsidiary of the
Company imposed pursuant to a binding agreement which has been entered
into for the sale or disposition of Capital Stock or assets of such
Restricted Subsidiary; provided, that such restrictions apply solely to
the Capital Stock or assets of such Restricted Subsidiary being sold;
(7) customary restrictions imposed on the transfer of copyrighted
or patented materials or other intellectual property; or
(8) an agreement governing Indebtedness Incurred to Refinance the
Indebtedness issued, assumed or Incurred pursuant to an agreement referred
to in Section 3.14(b)(3) or (5); provided, that such Refinancing agreement
is not materially more restrictive with respect to such encumbrances or
restrictions than those contained in the agreement referred to in such
clause (3) or (5).
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Section 3.15. Limitation on Layered Indebtedness.
The Company will not Incur any Indebtedness that is
subordinate or junior in right of payment to any Senior Indebtedness and senior
in any respect in right of payment to the Notes. No Note Guarantor will Incur
any Indebtedness that is subordinate or junior in right of payment to any Senior
Indebtedness of such Note Guarantor and senior in any respect in right of
payment to such Note Guarantor's Note Guarantee.
Section 3.16. Limitation on Liens.
(a) The Company will not, and will not cause or permit any of
its Restricted Subsidiaries to, directly or indirectly, incur any Liens of any
kind (except for Liens securing Senior Indebtedness and Permitted Liens) against
or upon any of their respective properties or assets, whether owned on the Issue
Date or acquired after the Issue Date, or any proceeds therefrom, to secure any
Indebtedness or trade payables unless contemporaneously therewith effective
provision is made:
(1) in the case of the Company or any Restricted Subsidiary
other than a Note Guarantor, to secure the Notes and all other amounts
due under the Indenture; and
(2) in the case of a Note Guarantor, to secure such Note
Guarantor's Note Guarantee of the Notes and all other amounts due under
the Indenture;
in each case, equally and ratably with such Indebtedness (or, in the event that
such Indebtedness is subordinated in right of payment to the Notes or such Note
Guarantee, as the case may be, prior to such Indebtedness) with a Lien on the
same properties and assets securing such Indebtedness for so long as such
Indebtedness is secured by such Lien.
Section 3.17. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into any transaction
or series of related transactions (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with, or for the
benefit of, any of its Affiliates (each an "Affiliate Transaction"), unless:
(1) the terms of such Affiliate Transaction are no less
favorable than those that could reasonably be expected to be obtained
in a comparable transaction at such time on an arm's-length basis from
a Person that is not an Affiliate of the Company;
(2) in the event that such Affiliate Transaction involves
aggregate payments, or transfers of property or services with a Fair
Market Value, in excess of $2 million, the terms of such Affiliate
Transaction shall be approved by a majority of the members of the Board
of Directors of the Company (including a majority of the disinterested
members thereof), the approval to be evidenced by a Board Resolution
stating that the Board of Directors has determined that such
transaction complies with the preceding provisions; and
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(3) in the event that such Affiliate Transaction involves
aggregate payments, or transfers of property or services with a Fair
Market Value, in excess of $10 million, the Company shall, prior to the
consummation thereof, obtain a favorable opinion as to the fairness of
such Affiliate Transaction to the Company and the relevant Restricted
Subsidiary (if any) from a financial point of view from an Independent
Financial Advisor and file the same with the Trustee.
(b) Section 3.17(a) above shall not apply to:
(1) transactions with or among the Company and any Restricted
Subsidiary or between or among Restricted Subsidiaries;
(2) reasonable fees and compensation paid to, and any
indemnity provided on behalf of, officers, directors, employees,
consultants or agents of the Company or any Restricted Subsidiary as
determined in good faith by the Company's Board of Directors;
(3) any transactions undertaken pursuant to any contractual
obligations or rights in existence on the Issue Date as in effect on
the Issue Date;
(4) any Restricted Payments made in accordance with Section
3.10;
(5) 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 and not exceeding $1 million outstanding at any one
time;
(6) any Qualified Receivables Transaction or any Investment in
a Receivables Subsidiary permitted under the Indenture in connection
with a Receivables Transaction;
(7) transactions with Ri-Rent Europe B.V. and Canlift Co. Ltd.
in connection with the ordinary operations of those businesses and
which are not material to the Company and its Restricted Subsidiaries,
taken as a whole; and
(8) the issuance of Capital Stock of the Company (other than
Disqualified Capital Stock).
Section 3.18 Conduct of Business.
The Company and its Restricted Subsidiaries will not engage in
any businesses other than a Permitted Business.
Section 3.19. Reports to Holders.
(a) Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as
any Notes remain outstanding, the Company will:
59
(1) provide the Trustee and the Holders with the annual
reports and information, documents and other reports as are specified
in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S.
corporation subject to such Sections within 15 days after the times
specified for the filing of the information, documents and reports
under such Sections; and
(2) file with the SEC, to the extent permitted, the
information, documents and reports referred to in Section 3.19(a)(1)
within the periods specified for such filings under the Exchange Act
(whether or not applicable to the Company).
(b) In addition, at any time when the Company is not subject
to or is not current in its reporting obligations under Section 3.19(a)(2), the
Company will make available, upon request, to any holder and any prospective
purchaser of Notes the information required pursuant to Rule 144A(d)(4) under
the Securities Act.
ARTICLE IV
SUCCESSOR ENTITY
Section 4.1. Merger, Consolidation and Sale of Assets.
(a) The Company will not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person (whether or
not the Company is the surviving or continuing Person), or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise
dispose of) all or substantially all of the Company's properties and assets
(determined on a consolidated basis for the Company and its Restricted
Subsidiaries), to any Person unless:
(1) either:
(i) the Company shall be the surviving or continuing
corporation, or
(ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or
the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition the
properties and assets of the Company and of the
Company's Restricted Subsidiaries substantially as an
entirety (the "Successor Entity"):
(x) shall be a corporation organized and validly
existing under the laws of the United States
or any State thereof or the District of
Columbia and
(y) shall expressly assume, by supplemental
indenture (in form and substance
satisfactory to the Trustee), executed and
delivered to the Trustee, the due and
punctual payment of the principal of, and
premium and interest on all of the Notes and
the performance and observance of every
covenant of the Notes, the Indenture and the
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Registration Rights Agreement on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
the assumption contemplated by Section 4.1(a)(1)(ii)(y) (including
giving effect on a pro forma basis to any Indebtedness, including any
Acquired Indebtedness, Incurred or anticipated to be Incurred in
connection with or in respect of such transaction), the Company or such
Successor Entity, as the case may be:
(i) shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of the
Company immediately prior to such transaction, and
(ii) shall be able to Incur at least $1.00 of additional
Indebtedness pursuant to Section 3.9(a);
(3) immediately before and immediately after giving effect to
such transaction and the assumption contemplated by Section
4.1(a)(1)(ii)(y) (including giving effect on a pro forma basis to any
Indebtedness, including any Acquired Indebtedness, Incurred or
anticipated to be Incurred and any Lien granted in connection with or
in respect of the transaction), no Default or Event of Default shall
have occurred or be continuing;
(4) each Note Guarantor (including Persons that become Note
Guarantors as a result of the transaction) shall have confirmed by
supplemental indenture that its Note Guarantee shall apply to the
Obligations of the Successor Entity in respect of the Indenture and the
Notes; and
(5) the Company or the Successor Entity shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that the consolidation, merger, sale, assignment, transfer,
lease, conveyance or other disposition and, if required in connection
with such transaction, the supplemental indenture, comply with the
applicable provisions of the Indenture and that all conditions
precedent in the Indenture relating to the transaction have been
satisfied.
For purposes of this covenant, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries (other than, for the avoidance of doubt, in connection with
Receivables Transactions) of the Company, the Capital Stock of which constitutes
all or substantially all of the properties and assets of the Company and its
Restricted Subsidiaries, taken as a whole, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
(b) Section 4.1(a)(2)(ii) shall not apply to:
(1) any transfer of the properties or assets of a Restricted
Subsidiary to the Company or to a Note Guarantor;
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(2) any merger of a Restricted Subsidiary into the Company or
a Note Guarantor;
(3) any merger of the Company into a Wholly Owned Restricted
Subsidiary created for the purpose of holding the Capital Stock of the
Company;
(4) a merger between the Company and a newly-created Affiliate
incorporated solely for the purpose of reincorporating the Company in
another State of the United States,
so long as, in each case the Indebtedness of the Company and its
Restricted Subsidiaries is not increased thereby.
(c) Upon any consolidation, combination or merger or any
transfer of all or substantially all of the properties and assets of the Company
and its Restricted Subsidiaries in accordance with this covenant, in which the
Company is not the continuing corporation, the Successor Entity formed by such
consolidation or into which the Company is merged or to which such conveyance,
lease or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under the Indenture and the Notes
with the same effect as if such Successor Entity had been named as such. For the
avoidance of doubt, compliance with this covenant shall not affect the
obligations of the Company (including a Successor Entity, if applicable) under
Section 3.8, if applicable.
(d) Each Note Guarantor will not, and the Company will not
cause or permit any Note Guarantor to, consolidate with or merge into, or sell
or dispose of all or substantially all of its assets to, any Person (other than
the Company) that is not a Note Guarantor unless:
(1) such Person (if such Person is the surviving entity)
assumes all of the obligations of such Note Guarantor in respect of its
Note Guarantee by executing a supplemental indenture and providing the
Trustee with an Officers' Certificate and Opinion of Counsel, and such
transaction is otherwise in compliance with the Indenture;
(2) such Note Guarantee is to be released as provided under
Section 11.2; or
(3) such sale or other disposition of substantially all of
such Note Guarantor's assets is made in accordance with Section 3.11 or is a
"disposition" that is not deemed to be an Asset Sale pursuant to the definition
of Asset Sale.
ARTICLE V
OPTIONAL REDEMPTION OF NOTES
Section 5.1. Optional Redemption. The Company may redeem the
Notes, as a whole or from time to time in part, subject to the conditions and at
the redemption prices specified in paragraph 5 of the Form of Reverse Side of
Note contained in Exhibit A.
Section 5.2. Election to Redeem. The Company shall evidence
its election to redeem any Notes pursuant to Section 5.1 by a Board Resolution.
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Section 5.3. Notice of Redemption.
(a) The Company shall give or cause the Trustee to give notice
of redemption, in the manner provided for in Section 13.2, first-class mail,
postage prepaid not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed. If the Company itself gives the
notice, it shall also deliver a copy to the Trustee.
(b) If either (i) the Company is not redeeming all Outstanding
Notes, or (ii) the Company elects to have the Trustee give notice of redemption,
then the Company shall deliver to the Trustee, at least 45 days prior to the
Redemption Date (unless the Trustee is satisfied with a shorter period), an
Officers' Certificate requesting that the Trustee select the Notes to be
redeemed and/or give notice of redemption and setting forth the information
required by Section 5.3(c) (with the exception of the identification of the
particular Notes, or portions of the particular Notes, to be redeemed in the
case of a partial redemption). If the Company elects to have the Trustee give
notice of redemption, the Trustee shall give the notice in the name of the
Company and at the Company's expense.
(c) All notices of redemption shall state:
(1) the Redemption Date,
(2) the redemption price and the amount of any accrued
interest payable as provided in Section 5.6,
(3) whether or not the Company is redeeming all Outstanding
Notes,
(4) if the Company is not redeeming all Outstanding Notes, the
aggregate principal amount of Notes that the Company is redeeming and
the aggregate principal amount of Notes that will be Outstanding after
the partial redemption, as well as the identification of the particular
Notes, or portions of the particular Notes, that the Company is
redeeming,
(5) if the Company is redeeming only part of a Note, the
notice that relates to that Note shall state that on and after the
Redemption Date, upon surrender of that Note, the Holder will receive,
without charge, a new Note or Notes of authorized denominations for the
principal amount of the Note remaining unredeemed,
(6) that on the Redemption Date the redemption price and any
accrued interest payable to the Redemption Date as provided in Section
5.6 will become due and payable in respect of each Note, or the portion
of each Note, to be redeemed, and, unless the Company defaults in
making the redemption payment, that interest on each Note, or the
portion of each Note, to be redeemed, will cease to accrue on and after
the Redemption Date,
(7) the place or places where a Holder must surrender the
Holder's Notes for payment of the redemption price, and
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(8) the CUSIP or ISIN number, if any, listed in the notice or
printed on the Notes, and that no representation is made as to the
accuracy or correctness of such CUSIP or ISIN number.
Section 5.4. Selection of Notes to Be Redeemed in Part.
(a) If the Company is not redeeming all Outstanding Notes, the
Trustee shall select the Notes to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not then listed on a national securities
exchange, on a pro rata basis, by lot or in another fair and reasonable manner
chosen at the discretion of the Trustee; provided, however, that if a partial
redemption is made with the proceeds of a Equity Offering, selection of the
Notes, or portions of the Notes, for redemption shall be made by the Trustee
only on a pro rata basis, or on as nearly a pro rata basis as is practicable
(subject to the procedures of DTC) unless that method is prohibited. The Trustee
shall make the selection from the Outstanding Notes not previously called for
redemption. The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Notes selected for partial
redemption, the principal amount of the Notes to be redeemed. In the event of a
partial redemption by lot, the Trustee shall select the particular Notes to be
redeemed not less than 30 nor more than 60 days prior to the relevant Redemption
Date from the Outstanding Notes not previously called for redemption. The
Company may redeem Notes in denominations of $1,000 only in whole. The Trustee
may select for redemption portions (equal to $1,000 or any integral multiple of
$1,000) of the principal of Notes that have denominations larger than $1,000.
(b) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall relate,
in the case of any Note redeemed or to be redeemed only in part, to the portion
of the principal amount of that Note which has been or is to be redeemed.
Section 5.5. Deposit of Redemption Price. Prior to 10:00 a.m.
New York City time on the relevant Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as Paying
Agent, segregate and hold in trust as provided in Section 2.4) an amount of
money in immediately available funds sufficient to pay the redemption price of,
and accrued interest on, all the Notes that the Company is redeeming on that
date.
Section 5.6. Notes Payable on Redemption Date. If the Company,
or the Trustee on behalf of the Company, gives notice of redemption in
accordance with this Article V, the Notes, or the portions of Notes, called for
redemption, shall, on the Redemption Date, become due and payable at the
redemption price specified in the notice (together with accrued interest, if
any, to the Redemption Date), and from and after the Redemption Date (unless the
Company shall default in the payment of the redemption price and accrued
interest) the Notes or the portions of Notes shall cease to bear interest. Upon
surrender of any Note for redemption in accordance with the notice, the Company
shall pay the Notes at the redemption price, together with accrued interest, if
any, to the Redemption Date (subject to the rights of Holders of record on the
relevant record date to receive interest due on the relevant Interest Payment
Date). If the
64
Company shall fail to pay any Note called for redemption upon its surrender for
redemption, the principal shall, until paid, bear interest from the Redemption
Date at the rate borne by the Notes.
Section 5.7. Unredeemed Portions of Partially Redeemed Note.
Upon surrender of a Note that is to be redeemed in part, the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of the Note at the expense of the Company, a new Note or Notes, of
any authorized denomination as requested by the Holder, in an aggregate
principal amount equal to, and in exchange for, the unredeemed portion of the
principal of the Note surrendered, provided that each new Note will be in a
principal amount of $1,000 or integral multiple of $1,000.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
(a) The following are "Events of Default":
(1) default in the payment when due of the principal of or
premium on any Notes, including the failure to make a required payment
to purchase Notes tendered pursuant to an optional redemption, Change
of Control Offer or an Asset Sale Offer and whether or not prohibited
by the provisions of the Indenture described under Articles X and XII.
(2) default for 30 days or more in the payment when due of
interest on any Notes (including additional interest payable under a
Registration Rights Agreement), whether or not prohibited by the
provisions of the Indenture described under Articles X and XII.
(3) the failure to perform or comply with any of the
provisions described in Section 3.11 or Section 4.1;
(4) the failure by the Company or any Restricted Subsidiary to
comply with any other covenant or agreement contained in the Indenture
or in the Notes for 30 days or more after written notice to the Company
from the Trustee or the Holders of at least 25% in aggregate principal
amount of the outstanding Notes;
(5) default by the Company or any Restricted Subsidiary under
any Indebtedness (which, in the case of a Limited Recourse Receivables
Transaction, shall be the recourse obligations of the Company and its
Restricted Subsidiaries thereunder) which:
(a) is caused by a failure to pay principal of or
premium or interest on such Indebtedness prior to the
expiration of any applicable grace period provided in such
Indebtedness on the date of such default; or
65
(b) results in the acceleration of such Indebtedness
prior to its Stated Maturity;
and the principal or accreted amount of Indebtedness covered by (a) or
(b) at the relevant time, aggregates $20 million or more.
(6) failure by the Company or any of its Restricted
Subsidiaries to pay one or more final judgments against any of them
which are not covered by adequate insurance by a solvent insurer of
national or international reputation which has acknowledged its
obligations in writing, aggregating $20 million or more, which
judgment(s) are not paid, discharged or stayed for a period of 60 days
or more;
(7) a Bankruptcy Law Event of Default; or
(8) except as permitted by the Indenture, any Note Guarantee
is held to be unenforceable or invalid in a judicial proceeding or
ceases for any reason to be in full force and effect or any Note
Guarantor, or any Person acting on behalf of any Note Guarantor, denies
or disaffirms such Note Guarantor's obligations under its Note
Guarantee.
The foregoing will constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is 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.
(b) The Company shall deliver to the Trustee upon becoming
aware of any Default or Event of Default written notice in the form of an
Officers' Certificate of any Default or Event of Default, their status and what
action the Company proposes to take in respect thereof.
Section 6.2. Acceleration.
(a) If an Event of Default (other than an Event of Default
specified in Section 6.1(a)(7) with respect to the Company) shall occur and be
continuing, the Trustee or the Holders of at least 25% in principal amount of
outstanding Notes may declare the unpaid principal of (and premium) and accrued
and unpaid interest on all the Notes to be immediately due and payable by notice
in writing to the Company and the Trustee specifying the Event of Default and
that it is a "notice of acceleration." If an Event of Default specified in
Section 6.1(a)(7) occurs with respect to the Company, then the unpaid principal
of (and premium) and accrued and unpaid interest on all the Notes will become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
(b) At any time after a declaration of acceleration with
respect to the Notes as described in the preceding paragraph (a), the Holders of
a majority in principal amount of the Notes may rescind and cancel such
declaration and its consequences:
(1) if the rescission would not conflict with any judgment or
decree;
66
(2) if all existing Events of Default have been cured or
waived, except nonpayment of principal or interest that has become due
solely because of the acceleration;
(3) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of
acceleration, has been paid; and
(4) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its reasonable expenses,
disbursements and advances.
No rescission shall affect any subsequent Default or impair any rights relating
thereto.
Section 6.3. Other Remedies.
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of
and interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 6.4. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Notes by
written consent of such majority may waive any existing Default or Event of
Default under this Indenture, and its consequences, except a default in the
payment of the principal of, premium or interest on any Notes.
Section 6.5. Control by Majority. The Holders of a majority in
principal amount of the Outstanding Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. Subject to Sections 7.1
and 7.2, however, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture; provided, however, that the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such
direction.
Section 6.6. Limitation on Suits. No Holder of any Notes will
have any right to institute any proceeding with respect to the Indenture or for
any remedy thereunder, unless:
(a) such Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to pursue the remedy;
67
(c) such Holders of the Notes provide to the Trustee indemnity
satisfactory to it;
(d) the Trustee does not comply within 60 days; and
(e) during such 60-day period the Holders of a majority in
principal amount of the outstanding Notes do not give the Trustee a
written direction which, in the opinion of the Trustee, is inconsistent
with the request;
provided, that a Holder of a Note may institute suit for enforcement of payment
of principal of and premium or interest on such Note on or after the respective
due dates expressed in such Note.
Section 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture (including Section 6.6),
the right of any Holder to receive payment of principal of or interest on the
Notes held by such Holder, on or after the respective due dates, Redemption
Dates or repurchase date expressed in this Indenture or the Notes, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
Section 6.8. Collection Suit by Trustee. If an Event of
Default specified in Section 6.1(a)(1) and (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company and each Note Guarantor for the whole amount then due and
owing (together with applicable interest on any overdue principal and, to the
extent lawful, interest on overdue interest) and the amounts provided for in
Section 7.7.
Section 6.9. Trustee May File Proofs of Claim, etc.
(a) The Trustee may (irrespective of whether the principal of
the Notes is then due):
(i) file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee and the Holders under this Indenture and the Notes allowed in
any bankruptcy, insolvency, liquidation or other judicial proceedings
relative to the Company, any Note Guarantor or any Subsidiary of the
Company or their respective creditors or properties; and
(ii) collect and receive any moneys or other property payable
or deliverable in respect of any such claims and distribute them in
accordance with this Indenture.
Any receiver, trustee, liquidator, sequestrator (or other similar official) in
any such 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 to
it for the reasonable compensation, expenses, taxes, disbursements and advances
of the Trustee, its agent and counsel, and any other amounts due to the Trustee
pursuant to Section 7.7.
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(b) Nothing in 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
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities . If the Trustee collects any money
or property pursuant to this Article VI, it shall pay out the money or property
in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: if the Holders proceed against the Company directly
without the Trustee in accordance with this Indenture, to Holders for
their collection costs;
THIRD: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for
principal and interest, respectively; and
FOURTH: to the Company or, to the extent the Trustee collects
any amount pursuant to Article XI from any Note Guarantor, to such Note
Guarantor, or to such party as a court of competent jurisdiction shall
direct.
The Trustee may, upon notice to the Company, fix a record date and payment date
for any payment to Holders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit
by Holders of more than 10% in principal amount of Outstanding Notes.
ARTICLE VII
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise 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 man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
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(1) 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
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates or
opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of Section
7.1(b);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.2, 6.4 or 6.5.
(d) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(e) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(g) 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 Article VII and to the provisions of the TIA.
(h) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(i) 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 unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs,
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expenses (including reasonable attorneys' fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction.
Section 7.2. Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may conclusively rely on any document
reasonably believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting at the
direction of the Company, it may require an Officers' Certificate or an Opinion
of Counsel. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on an Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) If the Trustee shall determine, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney.
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
(h) The rights, privileges, protections, immunities and
benefits given to the Trustee, including its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
(i) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
Section 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the
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Company, the Note Guarantors or any of their Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar or co-Registrar
may do the same with like rights. However, the Trustee must comply with Sections
7.10 and 7.11.
Section 7.4. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee's
certificate of authentication.
Section 7.5. Notice of Defaults. If a Default or Event of
Default occurs and is continuing and if a Responsible Officer has actual
knowledge thereof, the Trustee shall mail to each Holder notice of the Default
or Event of Default within 90 days after the occurrence thereof. Except in the
case of a Default or Event of Default in payment of principal of or interest on
any Note (including payments pursuant to the optional redemption or required
repurchase provisions of such Note, if any), the Trustee may withhold the notice
if and so long as a committee of its Trust Officers in good faith determines
that withholding the notice is in the interests of the Holders.
Section 7.6. Reports by Trustee to Holders. The Trustee shall
comply with TIA Section 313. The Company agrees to notify promptly the Trustee
whenever the Notes become listed on any stock exchange and of any delisting
thereof.
Section 7.7. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time
such compensation for its acceptance of this Indenture and services hereunder as
the Company and the Trustee shall from time to time agree in writing. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, costs of preparing and reviewing reports,
certificates and other documents, costs of preparation and mailing of notices to
Holders and reasonable costs of counsel retained by the Trustee in connection
with the delivery of an Opinion of Counsel or otherwise, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts.
(b) The Company and the Note Guarantors shall jointly and
severally indemnify the Trustee against any and all loss, damage, claim
liability, expense (including reasonable attorneys' fees and expenses) and taxes
(other than those measured by or determined by the income of the Trustee)
incurred by it without negligence, willful misconduct or bad faith on its part
in connection with the acceptance and administration of this trust and the
performance of its duties hereunder, including the costs and expenses of
enforcing this Indenture (including this Section 7.7) and of defending itself
against any claims (whether asserted by any Holder, the Company, any Note
Guarantor or otherwise). The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company
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shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim and the Trustee may have separate counsel and the Company shall
pay the fees and expenses of such counsel. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own negligence, willful misconduct or bad faith.
(c) To secure the Company's payment obligations in this
Section 7.7, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee other than money or property held in
trust to pay principal of and interest on particular Notes. The Trustee's right
to receive payment of any amounts due under this Section 7.7 shall not be
subordinate to any other liability or Indebtedness of the Company.
(d) The Company's payment obligations pursuant to this Section
7.7 shall survive the discharge of this Indenture and the resignation or removal
of the Trustee. When the Trustee incurs expenses after the occurrence of a
Bankruptcy Law Event of Default specified in Section 6.1(a)(7), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law;
provided, however, that this shall not affect the Trustee's rights as set forth
in this Section 7.7 or Section 6.10.
Section 7.8. Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying the
Company. The Holders of a majority in principal amount of the Outstanding Notes
may remove the Trustee by so notifying the Trustee and may appoint a successor
Trustee reasonably acceptable to the Company. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns or is removed by the Company or by
the Holders of a majority in principal amount of the Outstanding Notes and such
Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy
exists in the office of the Trustee for any reason (the Trustee in such event
being referred to herein as the retiring Trustee), the Company shall promptly
appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.7.
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(d) If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Outstanding Notes may petition, at the
Company's expense, any court of competent jurisdiction for the appointment of a
successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, any
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to
this Section 7.8, the Company's obligations under Section 7.7 shall continue for
the benefit of the retiring Trustee.
Section 7.9. Successor Trustee by Merger.
(a) If the Trustee consolidates with, merges or converts into,
or transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
(b) In case at the time such successor or successors to the
Trustee shall succeed to the trusts created by this Indenture, any of the Notes
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have.
Section 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least $50 million as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
Section 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
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ARTICLE VIII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 8.1. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option, at any time, elect to have
either Section 8.1(b) or (c) be applied to all Outstanding Notes upon compliance
with the conditions set forth in Section 8.2.
(b) Upon the Company's exercise under paragraph (a) of this
Section 8.1 of the option applicable to this paragraph (b), the Company shall,
subject to the satisfaction of the conditions set forth in Section 8.2, be
deemed to have been discharged from its obligations with respect to all
Outstanding Notes on the date all of the conditions set forth in Section 8.2
(including Section 8.2(4)(b)) are satisfied (hereinafter, "Legal Defeasance").
For this purpose, Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the Outstanding
Notes, which shall thereafter be deemed to be Outstanding only for the purposes
of Section 8.3 and the other Sections of this Indenture referred to in clause
(i) or (ii) of this paragraph (b), and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions, which shall
survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of Outstanding Notes to receive
solely from the trust fund described in Section 8.3, and as more fully
set forth in Section 8.3, payments in respect of the principal of,
premium, and interest on such Notes when such payments are due,
(ii) the Company's obligations with respect to such Notes
under Article II and Section 3.2,
(iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection
therewith, and
(iv) this Article VIII.
Subject to compliance with this Article VIII, the Company may exercise its
option under this paragraph (b) notwithstanding the prior exercise of its option
under paragraph (c) of this Section 8.1.
(c) Upon the Company's exercise under paragraph (a) of this
Section 8.1 of the option applicable to this paragraph (c), the Company shall,
subject to the satisfaction of the applicable conditions set forth in Section
8.2, be released from its obligations under the covenants contained in Sections
3.4, 3.5, 3.8 through 3.19, and 4.1(a)(2), (3) and (4) with respect to the
Outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not Outstanding for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be
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Outstanding for all other purposes hereunder (it being understood that such
Notes shall not be deemed Outstanding for accounting purposes). For this
purpose, such Covenant Defeasance means that, with respect to the Outstanding
Notes, the Company, its Restricted Subsidiaries and the Note Guarantors may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
or Default under Section 6.1(a)(3), (4), (5), (6), (8) and 6.2, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.
Section 8.2. Conditions to Defeasance. The Company may
exercise its Legal Defeasance option or its Covenant Defeasance option only if:
(1) the Company irrevocably deposits with the Trustee, in
trust for the benefit of the Holders, U.S. Legal Tender, U.S.
Government Obligations or a combination thereof in such amounts as will
be sufficient without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, and interest on the Notes on the stated date for payment
thereof or on the applicable redemption date, as the case may be; the
Company specifies whether the Notes are being defeased to maturity or
to a particular redemption date; and the Trustee has a perfected first
priority security interest under applicable law in such U.S. Legal
Tender and U.S. Government Obligations;
(2) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
acceptable to the Trustee confirming that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the Issue Date, there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the
Holders of the Outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
acceptable to the Trustee confirming that the Holders of the
Outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on (a) the date of such deposit pursuant to Section 8.2(i)
(other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit), or (b) in the case of Legal
Defeasance, insofar as Events of Default from bankruptcy or insolvency
76
events are concerned, at any time in the period ending on the 91st day
after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under this
Indenture or any other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or any Subsidiary of the Company or with the
intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel reasonably acceptable
to the Trustee, each stating that all conditions precedent provided for
or relating to the Legal Defeasance or the Covenant Defeasance have
been complied with;
(8) the Company shall have delivered to the Trustee an Opinion
of Counsel reasonably acceptable to the Trustee 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;
and
(9) the Company shall have delivered to the Trustee an Opinion
of Counsel that is not an employee of the Company (subject to customary
assumptions and exclusions) to the effect that the trust resulting from
the deposit either does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940.
Section 8.3. Application of Trust Money. The Trustee shall
hold in trust U.S. Legal Tender or U.S. Government Obligations, together with
earnings thereon deposited with it pursuant to this Article VIII. It shall apply
the deposited money and the U.S. Legal Tender from U.S. Government Obligations,
together with earnings thereon, through the Paying Agent and in accordance with
this Indenture to the payment of principal of and interest on the Notes. The
U.S. Legal Tender or U.S. Government Obligations so held in trust and deposited
with the Trustee in compliance with Section 8.2 shall not be part of the trust
estate under this Indenture, but shall constitute a separate trust fund for the
benefit of all Holders entitled thereto.
Section 8.4. Repayment to Company.
(a) The Trustee and the Paying Agent shall promptly turn over
to the Company, or if deposited with the Trustee by any Note Guarantor, to such
Note Guarantor, upon request any excess money or securities held by them upon
payment of all the obligations under this Indenture.
(b) Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company or any Note Guarantor, as
the case may be, upon
77
request, any money held by them for the payment of principal of, premium or
interest on the Notes that remains unclaimed for two years, and, thereafter,
Holders entitled to money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another Person.
Section 8.5. Indemnity for U.S. Government Obligations The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
Section 8.6. Reinstatement. If the Trustee or Paying Agent is
unable to apply any U.S. Legal Tender or U.S. Government Obligations in
accordance with this Article VIII by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then and only then the
obligations of the Company and each Note Guarantor under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to this Article VIII until such time as the Trustee or Paying Agent is permitted
to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance
with this Article VIII; provided, however, that, if the Company or the Note
Guarantors, as the case may be, have made any payment of principal of, premium
or interest on any Notes because of the reinstatement of its obligations, the
Company or the Note Guarantors, as the case may be, shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the U.S. Legal
Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
Section 8.7. Satisfaction and Discharge. The Indenture will be
discharged and will cease to be of further effect (except as to surviving rights
or registration of transfer or exchange of the Notes, as expressly provided for
in the Indenture) as to all Outstanding Notes when:
(a) either:
(1) all the Notes theretofore executed, authenticated and
delivered (except lost, stolen or destroyed Notes which have been
replaced or paid and Notes 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) have
been delivered to the Trustee for cancellation, or
(2) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable, and the Company has
irrevocably deposited or caused to be deposited with the Trustee U.S.
Legal Tender or U.S. Government Obligations sufficient to pay and
discharge the entire Indebtedness on the Notes not theretofore
delivered to the Trustee for cancellation, for principal of, premium
and interest on the Notes to the date of deposit, together with
irrevocable instructions from the Company directing the Trustee to
apply such funds to the payment;
(b) the Company has paid all other sums payable under this
Indenture and the Notes by the Company; and
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(c) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent under this Indenture relating
to the satisfaction and discharge of this Indenture have been complied with.
ARTICLE IX
AMENDMENTS
Section 9.1. Without Consent of Holders.
(a) The Company, the Note Guarantors and the Trustee may amend
or supplement this Indenture or the Notes without notice to or consent of any
Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article IV in respect of the assumption by
a Successor Entity of the obligations of the Company under the Notes
and this Indenture;
(3) to provide for uncertificated Notes in addition to or in
place of certificated Notes; provided, however, that the uncertificated
Notes are issued in registered form for purposes of Section 163(f) of
the Code;
(4) to add guarantees with respect to the Notes or to secure
the Notes;
(5) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(6) to comply with any requirements of the SEC in connection
with qualifying this Indenture under the TIA;
(7) to make any change that does not, in the opinion of the
Trustee, adversely affect the rights of any Holder in any material
respect (it being understood that the Trustee will be entitled to rely
on such evidence it deems appropriate in formulating this opinion,
including an Opinion of Counsel and Officer's Certificate);
(8) to provide for the issuance of the Exchange Notes and
Private Exchange Notes, which will have terms substantially identical
to the other Outstanding Notes except for the requirement of a Private
Placement Legend and related transfer restrictions under the Securities
Act and this Indenture and as to the applicability of additional
interest payable as provided in Section 2.14, and which will be
treated, together with any other Outstanding Notes, as a single issue
of securities; or
(9) to provide for the issuance of Additional Notes as
permitted by Sections 2.2(c) and 2.13, which will have terms
substantially identical to the other Outstanding Notes except as
specified in Section 2.13 or 2.14, and which will be treated, together
with any other Outstanding Notes, as a single issue of securities.
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(b) After an amendment or supplement under this Section 9.1
becomes effective, the Company shall mail to Holders a notice briefly describing
such amendment or supplement. The failure to give such notice to all Holders, or
any defect therein, shall not impair or affect the validity of an amendment or
supplement under this Section 9.1.
Section 9.2. With Consent of Holders.
(a) The Company, the Note Guarantors and the Trustee may amend
or supplement this Indenture or the Notes without notice to any Holder but with
the written consent of the Holders of at least a majority in principal amount of
the Outstanding Notes (including consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes). Subject to Section 6.4, the
Holder or Holders of a majority in aggregate principal amount of the Outstanding
Notes may waive compliance by the Company with any provision of this Indenture
or the Notes without notice to any other Holder. However, without the consent of
each Holder affected, an amendment, supplement or waiver may not:
(1) reduce the amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(2) reduce the rate of or change or have the effect of
changing the time for payment of interest, including Defaulted
Interest, on any Notes;
(3) reduce the principal of or change or have the effect of
changing the fixed maturity of any Notes, or change the date on which
any Notes may be subject to redemption, or reduce the redemption price
therefor;
(4) make any Notes payable in money other than that stated in
the Notes;
(5) make any change in the provisions of this Indenture
entitling each Holder to receive payment of principal of, premium and
interest on such Notes on or after the due date thereof or to bring
suit to enforce such payment, or permitting Holders of a majority in
principal amount of Outstanding Notes to waive Defaults or Events of
Default;
(6) amend, change or modify in any material respect any
obligation of the Company to make and consummate a Change of Control
Offer in respect of a Change of Control that has occurred or make and
consummate an Asset Sale Offer with respect to any Asset Sale that has
been consummated;
(7) eliminate or modify in any manner the obligations of a
Note Guarantor with respect to its Note Guarantee, which adversely
affects Holders in any material respect, except as expressly otherwise
provided for in this Indenture; or
(8) make any change to the rights of the Holders under Article
X or Article XII that adversely affects the Holders in any material
respect, except as otherwise provided for in this Indenture.
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(b) It shall not be necessary for the consent of the Holders
under this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(c) After an amendment, supplement or waiver under this
Section 9.2 becomes effective, the Company shall mail to Holders a notice
briefly describing such amendment, supplement or waiver. The failure to give
such notice to all Holders, or any defect therein, shall not impair or affect
the validity of an amendment, supplement or waiver under this Section 9.2.
(d) An amendment or supplement under this Section 9.2 may not
make any change that adversely affects the rights under Article X or Article XII
of any holder of Senior Indebtedness then outstanding unless the holders of such
Senior Indebtedness (or any Representative thereof authorized to give a consent)
consent to such change.
Section 9.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Notes shall comply with the TIA as then in
effect.
Section 9.4. Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment or a supplement or a waiver by a
Holder of a Note shall bind the Holder and every subsequent Holder of that Note
or portion of the Note that evidences the same debt as the consenting Holder's
Note, even if notation of the consent or waiver is not made on the Note.
However, any such Holder or subsequent Holder may revoke the consent or waiver
as to such Holder's Note or portion of the Note if the Trustee receives the
notice of revocation before the date the amendment, a supplement or waiver
becomes effective. After an amendment, a supplement or waiver becomes effective,
it shall bind every Holder. An amendment, a supplement or waiver shall become
effective upon receipt by the Trustee of the requisite number of written
consents under Section 9.2.
(b) The Company may, but shall not be obligated to, fix a
record date, which need not be the date provided in 316(c) of the TIA to the
extent it would otherwise be applicable, for the purpose of determining the
Holders entitled to give their consent or take any other action described above
or required or permitted to be taken pursuant to this Indenture. If a record
date is fixed, then notwithstanding the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to give such consent or to revoke any
consent previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall become
valid or effective more than 90 days after such record date or, if none is set,
after the date given.
Section 9.5. Notation on or Exchange of Notes. If an amendment
or a supplement changes the terms of a Note, the Trustee may require the Holder
of the Note to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Note regarding the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Note will execute and upon Company Order the Trustee will
authenticate a new Note that reflects the changed terms. Failure to make the
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appropriate notation or to issue a new Note shall not affect the validity of
such amendment or supplement.
Section 9.6. Trustee to Sign Amendments or Supplements. The
Trustee shall sign any amendment or supplement authorized pursuant to this
Article IX if the amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may
but need not sign it. In signing such amendment or supplement the Trustee shall
be entitled to receive indemnity reasonably satisfactory to it and to receive,
and (subject to Sections 7.1 and 7.2) shall be fully protected in relying upon,
such evidence as it deems appropriate, including solely on an Opinion of Counsel
stating that such amendment or supplement is authorized or permitted by this
Indenture.
ARTICLE X
SUBORDINATION OF THE NOTES
Section 10.1. Agreement to Subordinate. The Company agrees,
and each Holder by accepting a Note agrees, that the Indebtedness evidenced by
the Notes is subordinated in right of payment, to the extent and in the manner
provided in this Article X, to the prior payment in full in cash or Cash
Equivalents of all Senior Indebtedness of the Company and that the subordination
is for the benefit of and enforceable by the holders of such Senior
Indebtedness. Only Senior Indebtedness of the Company shall rank senior to the
Notes in accordance with the provisions set forth herein. The Notes shall in all
respects rank pari passu with, or be senior to, all other Indebtedness of the
Company. All provisions of this Article X shall be subject to Section 10.12.
Section 10.2. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or dissolution of the Company, in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property, an assignment by the Company for the benefit of its
creditors or the marshaling of the assets and liabilities of the Company:
(1) holders of Senior Indebtedness of the Company shall be
entitled to receive payment in full in cash or Cash Equivalents of all
Obligations due in respect thereof before Holders shall be entitled to
receive any payment of principal of, premium or interest on the Notes;
and
(2) until such Senior Indebtedness is paid in full in cash or
Cash Equivalents, any distribution to which Holders would be entitled
but for this Article X shall be made to holders of such Senior
Indebtedness as their interests may appear;
except that Holders may receive (a) Permitted Junior Securities and (b) payments
and other distributions made from any defeasance trust created pursuant to
Article VIII.
Section 10.3. Default on Designated Senior Indebtedness of the
Company
(a) The Company may not pay the principal of, premium or
interest on the Notes or make any deposit pursuant to Section 8.1 and may not
repurchase, redeem or otherwise
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retire any Notes (collectively, "pay the Notes"), other than payments and other
distributions in the form of Permitted Junior Securities or from any defeasance
trust created pursuant to Section 8.1 if:
(1) a payment default on Designated Senior Indebtedness of the
Company occurs and is continuing beyond any applicable grace period; or
(2) any other default occurs and is continuing on Designated
Senior Indebtedness of the Company that permits the holders thereof to
accelerate its maturity and the Trustee receives a notice of that
default (a "Payment Blockage Notice") from the Company or the holders
of such Designated Senior Indebtedness.
(b) Payments on the Notes may and shall be resumed:
(1) in the case of a Payment Blockage Notice relating to a
payment default, upon the date on which it is cured or waived; and
(2) in case of a Payment Blockage Notice relating to a
nonpayment default, the earlier of the date on which it is cured or
waived or 179 days after the date on which such Payment Blockage Notice
is received, unless the maturity of the relevant Designated Senior
Indebtedness of the Company has been accelerated.
(c) No new Payment Blockage Notice may be delivered unless and until:
(1) 360 days have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice; and
(2) all scheduled payments of principal of and interest on the
Notes that have come due have been paid in full in cash.
(d) No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the
basis for a subsequent Payment Blockage Notice unless that default shall have
been cured or waived for a period of not less than 180 days.
Section 10.4. Acceleration of Payment of Notes. If payment of
the Notes is accelerated because of an Event of Default, the Company or the
Trustee shall promptly notify the holders of the Designated Senior Indebtedness
of the Company (or their Representative) of the acceleration.
Section 10.5. When Distribution Must Be Paid Over. If a
distribution is made to Holders that because of this Article X should not have
been made to them, the Holders who receive the distribution shall hold it in
trust for holders of Senior Indebtedness of the Company and pay it over to them
as their interests may appear.
Section 10.6. Subrogation. After all Senior Indebtedness of
the Company is paid in full in cash or Cash Equivalents and until the Notes are
paid in full in cash or Cash Equivalents, Holders shall be subrogated to the
rights of holders of such Senior Indebtedness to
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receive distributions applicable to such Senior Indebtedness. A distribution
made under this Article X to holders of such Senior Indebtedness which otherwise
would have been made to Holders is not, as between the Company and Holders, a
payment by the Company on such Senior Indebtedness.
Section 10.7. Relative Rights. This Article X defines the
relative rights of Holders and holders of Senior Indebtedness of the Company.
Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay its
Obligations in respect of this Indenture and the Notes in accordance
with their terms; or
(2) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness of the Company to receive distributions otherwise
payable to Holders as provided in this Article X.
Section 10.8. Subordination May Not Be Impaired by Company. No
right of any holder of Senior Indebtedness of the Company to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or by its failure to comply with this
Indenture.
Section 10.9. Rights of Trustee and Paying Agent.
(a) Notwithstanding Section 10.3, the Trustee or Paying Agent
may continue to make payments on the Notes and shall not be charged with
knowledge of the existence of facts that would prohibit the making of any such
payments unless, not less than two Business Days prior to the date of such
payment, a Trust Officer of the Trustee receives notice satisfactory to it that
payments may not be made under this Article X. The Company, the Registrar or co-
registrar, the Paying Agent, a Representative or a holder of Senior Indebtedness
may give the notice; provided, however, that, if the holders of an issue of
Senior Indebtedness of the Company have a Representative, only the
Representative may give the notice.
(b) The Trustee in its individual or any other capacity may
hold Senior Indebtedness of the Company with the same rights it would have if it
were not Trustee. The Registrar and co-registrar and the Paying Agent may do the
same with like rights. The Trustee shall be entitled to all the rights set forth
in this Article X with respect to any Senior Indebtedness of the Company which
may at any time be held by it, to the same extent as any other holder of such
Senior Indebtedness, and nothing in Article VII shall deprive the Trustee of any
of its rights as such holder. Nothing in this Article X shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 7.7.
Section 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of the Company, the distribution may be made and the notice given
to their Representative (if any).
Section 10.11. Article X Not to Prevent Events of Default or
Limit Right to Accelerate. The failure to make a payment pursuant to the Notes
by reason of any provision in this Article X shall not be construed as
preventing the occurrence of a Default. Nothing in this
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Article X shall have any effect on the right of the Holders or the Trustee to
accelerate the maturity of the Notes.
Section 10.12. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article VIII by the Trustee
for the payment of principal of and interest on the Notes shall not be
subordinated to the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article X, and none of the Holders shall be
obligated to pay over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company.
Section 10.13. Trustee Entitled to Rely. Upon any payment or
distribution pursuant to this Article X, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.2
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representative for the holders of Senior Indebtedness
of the Company for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of such Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article X. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness of the Company to participate
in any payment or distribution pursuant to this Article X, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article X, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.1 and 7.2 shall be
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article X.
Section 10.14. Trustee to Effectuate Subordination. Each
Holder by accepting a Note authorizes and directs the Trustee on such Holder's
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders and the holders of Senior
Indebtedness of the Company as provided in this Article X and appoints the
Trustee as attorney-in-fact for any and all such purposes.
Section 10.15. 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 mistakenly pay over or distribute to Holders or the Company or any other
Person, money or assets to which any holders of Senior Indebtedness of the
Company shall be entitled by virtue of this Article X or otherwise.
Section 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Holder by accepting a Note acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness of
the Company, whether such Senior Indebtedness was
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created or acquired before or after the issuance of the Notes, to acquire and
continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of such Senior Indebtedness shall be deemed conclusively to have relied
on such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.
ARTICLE XI
NOTE GUARANTEES
Section 11.1. Note Guarantees.
(a) Each Note Guarantor hereby fully, unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety, jointly and
severally with each other Note Guarantor, to each Holder and the Trustee the
full and punctual payment when due, whether at maturity, by acceleration, by
redemption or otherwise, of the Obligations (such guaranteed Obligations, the
"Guaranteed Obligations"). Each Note Guarantor further agrees (to the extent
permitted by law) that the Obligations may be extended or renewed, in whole or
in part, without notice or further assent from it, and that it will remain bound
under this Article XI notwithstanding any extension or renewal of any
Obligation. Each Note Guarantor hereby agrees to pay, in addition to the amounts
stated above, any and all expenses (including reasonable counsel fees and
expenses) incurred by the Trustee or the Holders in enforcing any rights under
any Note Guarantee.
(b) Each Note Guarantor waives presentation to, demand of
payment from and protest to the Company of any of the Obligations and also
waives notice of protest for nonpayment. Each Note Guarantor waives notice of
any default under the Notes or the Obligations. The obligations of each Note
Guarantor hereunder shall not be affected by (i) the failure of any Holder to
assert any claim or demand or to enforce any right or remedy against the Company
or any other Person under this Indenture, the Notes or any other agreement or
otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Notes or any other agreement; (iv) the release of any security
held by any Holder or the Trustee for the Obligations or any of them; (v) the
failure of any Holder to exercise any right or remedy against any other Note
Guarantor; or (vi) any change in the ownership of the Company.
(c) Each Note Guarantor further agrees that its Note Guarantee
herein constitutes a guarantee of payment when due (and not a guarantee of
collection) and waives any right to require that any resort be had by any Holder
to any security held for payment of the Obligations.
(d) The obligations of each Note Guarantor hereunder shall not
be subject to any reduction, limitation, impairment or termination for any
reason (other than payment of the Obligations in full), 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 Obligations
or otherwise. Without limiting the generality of the foregoing, the obligations
of each Note Guarantor herein shall not be discharged or impaired or otherwise
affected by the failure of any
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Holder to assert any claim or demand or to enforce any remedy under this
Indenture, the Notes or any other agreement, by any waiver or modification of
any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the 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 Note Guarantor or would otherwise operate as a
discharge of such Note Guarantor as a matter of law or equity.
(e) Each Note Guarantor further agrees that its Note Guarantee
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 of
the Obligations is rescinded or must otherwise be restored by any Holder upon
the bankruptcy or reorganization of the Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of
any other right which any Holder has at law or in equity against each Note
Guarantor by virtue hereof, upon the failure of the Company to pay any of the
Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, each Note Guarantor hereby promises to
and will, upon receipt of written demand by the Trustee, forthwith pay, or cause
to be paid, in cash, to the Holders an amount equal to the sum of:
(i) the unpaid amount of such Obligations then due and owing;
and
(ii) accrued and unpaid interest on such Obligations then due
and owing (but only to the extent not prohibited by law).
(g) Each Note Guarantor further agrees that, as between such
Note Guarantor, on the one hand, and the Holders, on the other hand:
(i) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in this Indenture for the purposes of its Note
Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby; and
(ii) in the event of any such declaration of acceleration of
such Obligations, such Obligations (whether or not due and payable)
shall forthwith become due and payable by such Note Guarantor for the
purposes of its Note Guarantee.
(h) Each Note Guarantee is, to the extent and in the manner
set forth in Article XII, subordinated and subject in right of payment to the
prior payment in full in cash or Cash Equivalents of all Senior Indebtedness of
such Note Guarantor and is made subject to such provisions of this Indenture.
Section 11.2. Limitation on Liability; Termination, Release
and Discharge.
(a) The obligations of each Note Guarantor hereunder will be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Note Guarantor and after giving effect
to any collections from or payments made by or on behalf of any other Note
Guarantor in respect of the obligations of such other Note Guarantor under its
Note Guarantee or pursuant to its contribution obligations under this Indenture,
result in the
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obligations of such Note Guarantor under its Note Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law.
(b) A Note Guarantor will be released and relieved of its
obligations under its Note Guarantee in the event:
(1) there is a Legal Defeasance of the Notes as described in
Section 8.1;
(2) there is a sale or other disposition of Capital Stock of
such Note Guarantor following which such Note Guarantor is no longer a
direct or indirect Subsidiary of the Company;
(3) there is any sale or other disposition of all or
substantially all of the assets of such Note Guarantor to a third
party, other than the Company or an Affiliate of the Company (including
by way of merger or consolidation), if the Company applies the Net Cash
Proceeds of that sale or other disposition in accordance with the
applicable provisions of the Indenture and such Note Guarantor is no
longer a Material Domestic Subsidiary after giving effect thereto;
(4) there is a merger or dissolution of such Note Guarantor
into the Company or another Note Guarantor; or
(5) in the event such Note Guarantor is designated as an
Unrestricted Subsidiary in accordance with Section 3.13;
provided, that the transaction pursuant to which a Note Guarantor is released
and relieved of its obligations under its Note Guarantee is carried out pursuant
to and in accordance with any other applicable provisions of the Indenture.
Section 11.3. Right of Contribution. Each Note Guarantor that
makes a payment or distribution under a Note Guarantee will be entitled to a
contribution from each other Note Guarantor in a pro rata amount, based on the
net assets of each Note Guarantor determined in accordance with GAAP. The
provisions of this Section 11.3 shall in no respect limit the obligations and
liabilities of each Note Guarantor to the Trustee and the Holders and each Note
Guarantor shall remain liable to the Trustee and the Holders for the full amount
guaranteed by such Note Guarantor hereunder.
Section 11.4. No Subrogation. Each Note Guarantor agrees that
it shall not be entitled to any right of subrogation in respect of any
Guaranteed Obligations until payment in full in cash or Cash Equivalents of all
Obligations and all obligations to which the Obligations are subordinated. If
any amount shall be paid to any Note Guarantor on account of such subrogation
rights at any time when all of the Obligations and all obligations to which the
Obligations are subordinated shall not have been paid in full in cash or Cash
Equivalents, such amount shall be held by such Note Guarantor in trust for the
Trustee and the Holders, segregated from other funds of such Note Guarantor, and
shall, forthwith upon receipt by such Note Guarantor, be turned over to the
Trustee in the exact form received by such Note Guarantor (duly endorsed by such
Note Guarantor to the Trustee, if required), to be applied against the
Obligations or obligations to which the Obligations are subordinated.
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Section 11.5. Additional Note Guarantees. The Company will cause any
Person that shall become a Material Domestic Subsidiary (an "Additional Note
Guarantor") to concurrently grant a guarantee (an "Additional Note Guarantee")
of the Company's obligations under this Indenture, any applicable Registration
Rights Agreement and the Notes to the same extent that the Note Guarantors have
guaranteed the Company's obligations under this Indenture, the Issue Date
Registration Rights Agreement and the Notes by executing a Supplemental
Indenture substantially in the form of Exhibit E, it being understood that such
Additional Note Guarantee shall be subordinated in right of payment to Senior
Indebtedness of such Additional Note Guarantor, including guarantees
constituting Senior Indebtedness as provided in Article XII; provided, however,
that each Additional Note Guarantor will be automatically and unconditionally
released and discharged from its obligations under such Additional Note
Guarantee only in accordance with Section 11.2.
ARTICLE XII
SUBORDINATION OF THE NOTE GUARANTEES
Section 12.1. Agreement to Subordinate. Each Note Guarantor agrees, and
each Holder by accepting a Note agrees, that the obligations of such Note
Guarantor are subordinated in right of payment, to the extent and in the manner
provided in this Article XII, to the prior payment in full in cash or Cash
Equivalent of all Senior Indebtedness of such Note Guarantor and that the
subordination is for the benefit of and enforceable by the holders of such
Senior Indebtedness. Only Senior Indebtedness of such Note Guarantor shall rank
senior to the obligations of such Note Guarantor in accordance with the
provisions set forth herein. The obligations of each Note Guarantor shall in all
respects rank pari passu with, or be senior to, all other Indebtedness of such
Note Guarantor.
Section 12.2. Liquidation, Dissolution, Bankruptcy. Upon any payment or
distribution of the assets of any Note Guarantor to creditors upon a total or
partial liquidation or dissolution of such Note Guarantor, in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to such
Note Guarantor or its property, an assignment by such Note Guarantor for the
benefit of its creditors or the marshaling of the assets and liabilities of such
Note Guarantor:
(1) holders of Senior Indebtedness of such Note Guarantor shall be
entitled to receive payment in full in cash or Cash Equivalents of all
Obligations due in respect thereof before Holders shall be entitled to
receive any payment pursuant to the Note Guarantee of such Note Guarantor;
and
(2) until such Senior Indebtedness of such Note Guarantor is paid in
full in cash or Cash Equivalents, any distribution to which Holders would
be entitled but for this Article XII shall be made to holders of such
Senior Indebtedness as their interests may appear;
except that Holders may receive (a) Permitted Junior Securities and (b) payments
and other distributions made from any defeasance trust created pursuant to
Article VIII.
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Section 12.3. Default on Designated Senior Indebtedness of Note
Guarantors.
(a) Each Note Guarantor may not pay the principal of, premium or
interest on the Notes or make any deposit pursuant to Section 8.1 and may not
repurchase, redeem or otherwise retire any Notes (collectively, "pay its Note
Guarantee"), other than payments and other distributions in the form of
Permitted Junior Securities or from any defeasance trust created pursuant to
Section 8.1 if:
(1) a payment default on Designated Senior Indebtedness of such Note
Guarantor occurs and is continuing beyond any applicable grace period; or
(2) any other default occurs and is continuing on Designated Senior
Indebtedness of such Note Guarantor that permits the holders thereof to
accelerate its maturity and the Trustee receives a Payment Blockage Notice
from such Note Guarantor, the Company or the holders of such Senior
Indebtedness.
(b) Payments on such Note Guarantee may and shall be resumed:
(1) in the case of a Payment Blockage Notice relating to a payment
default, upon the date on which it is cured or waived; and
(2) in case of a Payment Blockage Notice relating to a nonpayment
default, the earlier of the date on which it is cured or waived or 179 days
after the date on which such Payment Blockage Notice is received, unless
the maturity of the relevant Designated Senior Indebtedness of such Note
Guarantor has been accelerated.
(c) No new Payment Blockage Notice may be delivered unless and until:
(1) 360 days have elapsed since the effectiveness of the immediately
prior Payment Blockage Notice; and
(2) all scheduled payments of principal of and interest on the Notes
that have come due have been paid in full in cash.
(d) No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice unless that
default shall have been cured or waived for a period of not less than 180
days.
Section 12.4. Demand for Payment. If a demand for payment is made on
any Note Guarantor pursuant to Article XI, the Trustee shall promptly notify the
holders of the Designated Senior Indebtedness (or their Representatives) of such
Note Guarantor of such demand.
Section 12.5. When Distribution Must Be Paid Over. If a distribution is
made to Holders that because of this Article XII should not have been made to
them, the Holders who receive the distribution shall hold it in trust for
holders of the Senior Indebtedness of the
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relevant Note Guarantor and pay it over to them or their Representative as their
interests may appear.
Section 12.6. Subrogation. After all Senior Indebtedness of each Note
Guarantor is paid in full in cash or Cash Equivalents and until the Notes are
paid in full in cash or Cash Equivalents, Holders shall be subrogated to the
rights of holders of such Senior Indebtedness to receive distributions
applicable to such Senior Indebtedness. A distribution made under this Article
XII to holders of such Senior Indebtedness which otherwise would have been made
to Holders is not, as between each Note Guarantor and Holders, a payment by such
Note Guarantor on such Senior Indebtedness.
Section 12.7. Relative Rights. This Article XII defines the relative
rights of Holders and holders of Senior Indebtedness of each Note Guarantor.
Nothing in this Indenture shall:
(1) impair, as between each Note Guarantor and the Holders, the
obligation of such Note Guarantor, which is absolute and unconditional, to
pay its Obligations in respect of this Indenture and the Notes to the
extent set forth in Article XI; or
(2) prevent the Trustee or any Holder from exercising its available
remedies upon a default by any Note Guarantor under its obligations,
subject to the rights of holders of Senior Indebtedness of such Note
Guarantor to receive distributions otherwise payable to Holders as provided
in this Article XII.
Section 12.8. Subordination May Not Be Impaired by Note Guarantors.
No right of any holder of Senior Indebtedness of any Note Guarantor to
enforce the subordination of the obligations of such Note Guarantor shall be
impaired by any act or failure to act by such Note Guarantor or by its failure
to comply with this Indenture.
Section 12.9. Rights of Trustee and Paying Agent.
(a) Notwithstanding Section 12.3, the Trustee or Paying Agent may
continue to make payments on each Note Guarantee and shall not be charged with
knowledge of the existence of facts that would prohibit the making of any such
payments unless, not less than two Business Days prior to the date of such
payment, a Trust Officer of the Trustee receives written notice satisfactory to
it that payments may not be made under this Article XII. The Company, any Note
Guarantor, the Registrar or co-registrar, the Paying Agent, a Representative or
a holder of Senior Indebtedness of any Note Guarantor may give the
notice; provided, however, that, if any Senior Indebtedness of any Note
Guarantor has a Representative, only the Representative may give the notice.
(b) The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and co- registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article XII with respect to any Senior Indebtedness of any Note Guarantor which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in Article VII shall deprive the Trustee of any of its
rights as such
91
holder. Nothing in this Article XII shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.7.
Section 12.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness
of any Note Guarantor, the distribution may be made and the notice given to
their Representative (if any).
Section 12.11. Article XII Not To Prevent Defaults Under the Note
Guarantees or Limit Right To Demand Payment. The failure to make a payment
pursuant to any Note Guarantee by reason of any provision in this Article XII
shall not be construed as preventing the occurrence of a Default under such Note
Guarantee. Nothing in this Article XII shall have any effect on the right of the
Holders or the Trustee to make a demand for payment on any Note Guarantor
pursuant to Article XI.
Section 12.12. Trustee Entitled to Rely. Upon any payment or
distribution pursuant to this Article XII, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.2
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representative for the holders of Senior Indebtedness
of any Note Guarantor for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of such Senior
Indebtedness and other indebtedness of such Note Guarantor, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article XII. In the event that the
Trustee determines, in good faith, that evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness of such Note Guarantor to
participate in any payment or distribution pursuant to this Article XII, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness of such Note
Guarantor held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article XII, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 7.1 and 7.2 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article XII.
Section 12.13. Trustee to Effectuate Subordination. Each Holder by
accepting a Note authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Senior Indebtedness of any
Note Guarantor as provided in this Article XII and appoints the Trustee as
attorney-in-fact for any and all such purposes.
Section 12.14. Trustee Not Fiduciary for Holders of Senior Indebtedness
of Note Guarantors. The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness of any Note Guarantor and shall not be liable
to any such holders if it shall mistakenly pay over or distribute to Holders or
the Company, any Note Guarantor or any other Person, money or assets to which
any holders of such Senior Indebtedness shall be entitled by virtue of this
Article XII or otherwise.
92
Section 12.15. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Holder by accepting a Note acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness of
any Note Guarantor, whether such Senior Indebtedness was created or acquired
before or after the issuance of the Note, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control.
Section 13.2. Notices.
(a) Any notice or communication shall be in writing and delivered
in person or mailed by first-class mail addressed as follows:
if to the Company:
JLG Industries, Inc.
1 JLG Drive
McConnellsburg, PA 17233-9533
if to the Trustee:
The Bank of New York
Corporate Trust Administration
101 Barclay Street
New York, NY 10286
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
(b) Any notice or communication mailed to a registered Holder
shall be mailed to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
(c) Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
(d) Any notice or communication delivered to the Company under the
provisions herein shall constitute notice to the Note Guarantors.
93
Section 13.3. Communication by Holders with Other Holders. Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect
to their rights under this Indenture, the Notes or the Note Guarantees. The
Company, the Note Guarantors, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
Section 13.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 13.5. Statements Required in Certificate or Opinion. Each
certificate or opinion, including any Opinion of Counsel, with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such 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
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters
on an Officers' Certificate or on certificates of public officials.
Section 13.6. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by, or a meeting of, Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
Section 13.7. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or other day on which commercial banking institutions are authorized or
required to be closed in New York City. If a payment date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record
date is a Legal Holiday, the record date shall not be affected.
94
Section 13.8. Governing Law, Waiver of Jury Trial, etc.
(a) THIS INDENTURE (INCLUDING EACH NOTE GUARANTEE) AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE,
EACH NOTE GUARANTEE OR THE NOTES OR ANY TRANSACTION RELATED HERETO OR THERETO.
(b) The Company and each Note Guarantor hereby:
(i) agrees that any suit, action or proceeding against it arising
out of or relating to this Indenture (including the Note Guarantees) or
the Notes, as the case may be, may be instituted in any Federal or state
court sitting in The City of New York,
(ii) waives to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any
such suit, action or proceeding, and any claim that any suit, action or
proceeding in such a court has been brought in an inconvenient forum,
(iii) irrevocably submits to the non-exclusive jurisdiction of such
courts in any suit, action or proceeding,
(iv) agrees that final judgment in any such suit, action or
proceeding brought in such a court shall be conclusive and binding may be
enforced in the courts of the jurisdiction of which it is subject by a
suit upon judgment, and
(v) agrees that service of process by mail to the addresses
specified herein shall constitute personal service of such process on it
in any such suit, action or proceeding.
(c) Nothing in this shall affect the right of the Trustee or any
Holder of the Notes to serve process in any other manner permitted by law.
Section 13.9. No Recourse Against Others. An incorporator, director,
officer, employee, stockholder or controlling person, as such, of the Company or
any Note Guarantor shall not have any liability for any obligations of the
Company under the Notes, this Indenture or the Note Guarantees or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Note, each Holder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the
Notes.
Section 13.10. Successors. All agreements of the Company and the
Note Guarantors in this Indenture and the Notes shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
Section 13.11. Duplicate and Counterpart Originals. The parties may
sign any number of copies of this Indenture. One signed copy is enough to prove
this Indenture. This
95
Indenture may be executed in any number of counterparts, each of which so
executed shall be an original, but all of them together represent the same
agreement.
Section 13.12. Severability. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 13.13. Qualification of Indenture. The Company shall qualify
this Indenture under the TIA in accordance with the terms and conditions of the
Issue Date Registration Rights Agreement and shall pay all reasonable costs and
expenses (including attorneys' fees and expenses for the Company, the Note
Guarantors, the Trustee and the Holders) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and the Notes and printing this Indenture and the Notes. The Trustee
shall be entitled to receive from the Company any such Officers' Certificates,
Opinions of Counsel or other documentation as it may reasonably request in
connection with any such qualification of this Indenture under the TIA.
Section 13.14. Table of Contents; Headings. The table of contents
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not intended to be considered a part
hereof and shall not modify or restrict any of the terms or provisions hereof.
96
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
JLG INDUSTRIES, INC.
By: /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: Executive Vice President and
Chief Financial Officer
By: /s/ Thomas D. Singer
-------------------------------------
Name: Thomas D. Singer
Title: Senior Vice President, General
Counsel and Secretary
ACCESS FINANCIAL SOLUTIONS, INC.
By: /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: President
By: /s/ Thomas D. Singer
-------------------------------------
Name: Thomas D. Singer
Title: Vice President and Secretary
FULTON INTERNATIONAL, INC.
By: /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: President
By: /s/ Thomas D. Singer
-------------------------------------
Name: Thomas D. Singer
Title: Vice President and Secretary
JLG EQUIPMENT SERVICES, INC.
By: /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: Secretary and Treasurer
By: /s/ Thomas D. Singer
-------------------------------------
Name: Thomas D. Singer
Title: Vice President and Assistant
Secretary
JLG MANUFACTURING, LLC
By: /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: Executive Vice President and
Chief Financial Officer
By: /s/ Thomas D. Singer
-------------------------------------
Name: Thomas D. Singer
Title: Senior Vice President, General
Counsel and Secretary
GRADALL INDUSTRIES, INC.
By: /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: Vice President
By: /s/ Thomas D. Singer
-------------------------------------
Name: Thomas D. Singer
Title: Vice President and Assistant
Secretary
THE GRADALL COMPANY
By: /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: Vice President
By: /s/ Thomas D. Singer
-------------------------------------
Name: Thomas D. Singer
Title: Vice President and
Assistant Secretary
THE GRADALL ORVILLE COMPANY
By: /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: Vice President
By: /s/ Thomas D. Singer
-------------------------------------
Name: Thomas D. Singer
Title: Vice President and
Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ Terence Rawlins
-------------------------------------
Name: Terence Rawlins
Title: Vice President
EXHIBIT A
FORM OF NOTE
[Include the following legend for Global Notes only:
"THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO
HEREINAFTER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF."]
[Include the following legend on all Notes that are Restricted Notes:]
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, THE
SECURITIES ACT, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER JURISDICTION AND IN ACCORDANCE WITH THE
TRANSFER RESTRICTIONS CONTAINED IN THE INDENTURE UNDER WHICH THIS NOTE WAS
ISSUED."]
FORM OF FACE OF NOTE
No. [___] Principal Amount $[______________]
[If the Note is a Global Note include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto]
CUSIP NO. 466210AA9
[If the Note is a Regulation S Global Note, delete the reference to CUSIP No.
and replace it with: ISIN NO. U09739AA8]
JLG Industries, Inc., a Pennsylvania corporation, promises to pay to
[___________], or registered assigns, the principal sum of [__________________]
Dollars [If the Note is a Global Note, add the following, as revised by the
Schedule of Increases and Decreases in Global Note attached hereto], on June 15,
2012.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
2
Additional provisions of this Note are set forth on the other side
of this Note.
JLG INDUSTRIES, INC.
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By:
-----------------------
Authorized Signatory Date:
------------------------
3
FORM OF REVERSE SIDE OF NOTE
8 3/8% SENIOR SUBORDINATED NOTES DUE 2012
1. Interest
JLG Industries, Inc., a Pennsylvania corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to, the
"Company"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above.
The Company will pay interest semiannually in arrears on each
Interest Payment Date of each year commencing December 15, 2002. Interest on the
Notes will accrue from the most recent date to which interest has been paid on
the Notes or, if no interest has been paid, from and including the Issue Date.
The Company shall pay interest on overdue principal (plus interest on such
interest to the extent lawful), at the rate borne by the Notes to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and, to the extent
such payments are lawful, interest on overdue installments of interest
("Defaulted Interest") without regard to any applicable grace periods at the
rate of 2.0% per annum in excess of the rate shown on this Note, as provided in
the Indenture.
2. Method of Payment
Prior to 10:00 a.m. New York City time on the date on which any
principal of or interest on any Note is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay
such principal and/or interest. The Company will pay interest (except Defaulted
Interest) to the Persons who are registered Holders of Notes at the close of
business on the Record Date preceding the Interest Payment Date even if Notes
are canceled, repurchased or redeemed after the Record Date and on or before the
relevant Interest Payment Date. Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company will pay principal and interest in
U.S. Legal Tender.
Payments in respect of Notes represented by a Global Note (including
principal and interest) will be made by the transfer of immediately available
funds to the accounts specified by DTC. The Company will make all payments in
respect of a Certificated Note (including principal and interest) by mailing a
check to the registered address of each Holder thereof; provided, however, that
payments on the Notes may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 15
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, The Bank of New York (the "Trustee"), will act as
Trustee, Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-Registrar without notice to any Holder. The
Company or any Note Guarantor may act as Paying Agent, Registrar or
co-Registrar.
4. Indenture; Guarantees
The Company issued the Notes under an Indenture, dated as of June
17, 2002 (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "Indenture"), between the Company, the Note
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the TIA.
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all such terms, and Holders
are referred to the Indenture and the TIA for a statement of those terms. Each
Holder by accepting a Note, agrees to be bound by all of the terms and
provisions of the Indenture, as amended or supplemented from time to time.
The Notes are general unsecured obligations of the Company limited
to $275,000,000 aggregate principal amount, of which $175,000,000 in aggregate
principal amount will be initially issued on the Issue Date. Subject to the
conditions set forth in the Indenture and without the consent of the Holders,
the Company may issue Additional Notes of up to an additional $100,000,000
aggregate principal amount of 8% Senior Subordinated Notes Due 2012. All Notes
will be treated as a single class of securities under the Indenture.
The Indenture imposes certain limitations on, among other things,
the ability of the Company and its Restricted Subsidiaries to: Incur
Indebtedness, make Restricted Payments, incur Liens, make Asset Sales, enter
into transactions with Affiliates, or consolidate or merge or transfer or convey
all or substantially all of the Company's and its Restricted Subsidiaries'
assets.
To guarantee the due and punctual payment of the principal of,
premium and interest on the Notes and all other amounts payable by the Company
under the Indenture and the Notes when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Notes and the Indenture, Access Financial Solutions, Inc., Fulton International,
Inc., JLG Equipment Services, Inc., JLG Manufacturing, LLC, Gradall Industries,
Inc., The Gradall Company, and The Gradall Orrville Company have unconditionally
guaranteed (and each future Material Domestic Subsidiary will unconditionally
guarantee), jointly and severally, such obligations pursuant to the terms of the
Indenture. Each Note Guarantee will be subject to release as provided in the
Indenture.
5. Redemption
Optional Redemption. Except as stated below, the Company may not
redeem the Notes prior to June 15, 2007. The Company may redeem the Notes, at
its option, in whole at any time or in part from time to time, on and after June
15, 2007, at the following redemption prices, expressed as percentages of the
principal amount thereof, plus accrued and unpaid interest to, but
2
excluding the date of redemption, if redeemed during the twelve-month period
commencing on June 15 of any year set forth below:
YEAR PERCENTAGE
---- ----------
2007 104.188%
2008 102.792%
2009 101.396%
2010 100.000%
and 2011
Optional Redemption upon Equity Offerings. At any time, or from time
to time, on or prior to June 15, 2005, the Company may, at its option, use the
net cash proceeds of one or more Equity Offerings to redeem in the aggregate up
to 35% of the aggregate principal amount of the Notes issued on or prior to such
date at a redemption price equal to 108.375% of the principal amount thereof,
plus accrued and unpaid interest thereon to, but excluding, the date of
redemption; provided, that:
(1) after giving effect to any such redemption at least 65%
of the aggregate principal amount of the Notes issued on or prior to such
date remains outstanding; and
(2) the Company shall make such redemption not more than 60
days after the consummation of such Equity Offering.
"Equity Offering" means an offering of Qualified Capital Stock of
the Company (other than pursuant to a registration statement filed on Form S-4
or S-8 or any issuance pursuant to employee benefit or compensation plans or
programs).
Partial Redemption. In the case of any partial redemption, selection
of the Notes for redemption will be made in accordance with Article V of the
Indenture. On and after the redemption date, interest will cease to accrue on
Notes or portions thereof called for redemption as long as the Company has
deposited with the Paying Agent funds in satisfaction of the applicable
redemption price pursuant to the Indenture.
6. Repurchase Provisions
Change Of Control Offer. Upon the occurrence of a Change of Control,
each Holder of Notes will have the right to require that the Company purchase
all or a portion (in integral multiples of $1,000) of the Holder's Notes at a
purchase price equal to 101% of the principal amount thereof, plus accrued and
unpaid interest through the date of purchase. Within 20 days following the date
upon which the Change of Control occurred, the Company must make a Change of
Control Offer pursuant to a Change of Control Offer Notice. As more fully
described in the Indenture, the Change of Control Offer Notice shall state,
among other things, the Change of Control Payment Date, which must be a Business
Day no earlier than 30 calendar days nor later than 60 calendar days from the
date the notice is mailed, other than as may be required by law.
3
Asset Sale Offer. The Indenture imposes certain limitations on the
ability of the Company and its Restricted Subsidiaries to make Asset Sales. In
the event the proceeds from a permitted Asset Sale exceed certain amounts and
are not applied as specified in the Indenture, the Company will be required to
make an Asset Sale Offer to purchase to the extent of such remaining proceeds
each Holder's Notes, and at the Company's option, on a pro rata basis other
Senior Subordinated Indebtedness with similar provisions requiring the Company
to offer to purchase the Senior Subordinated Indebtedness with the proceeds of
Asset Sales, at 100% of the principal amount thereof, plus accrued interest (if
any) to the Asset Sale Offer Payment Date, as more fully set forth in the
Indenture.
7. Subordination
This Note and the Note Guarantees are subordinated in right of
payment, as set forth in the Indenture, to the prior payment in full in cash or
Cash Equivalents of all existing and future Senior Indebtedness of the Company
or the relevant Note Guarantor, as the case may be. This Note and the Note
Guarantees in all respects rank pari passu with, or senior to, all other
Indebtedness of the Company or the relevant Note Guarantor, as the case may be.
By accepting a Note, each Holder agrees to the subordination provisions set
forth in the Indenture, authorizes the Trustee to acknowledge such subordination
provisions and give them effect and appoints the Trustee as attorney-in-fact for
such purpose.
8. Denominations; Transfer; Exchange
The Notes are in fully registered form without coupons, and only in
denominations of principal amount of $1,000 and any integral multiple thereof. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange (i) any Notes selected for redemption (except, in the case of a Note
to be redeemed in part, the portion of the Note not to be redeemed) for a period
beginning 15 days before the mailing of a notice of Notes to be redeemed and
ending on the date of such mailing or (ii) any Notes for a period beginning 15
days before an interest payment date and ending on such interest payment date.
9. Persons Deemed Owners
The registered holder of this Note may be treated as the owner of it
for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
4
11. Discharge Prior to Redemption or Maturity
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Company deposits with the Trustee U.S. Legal Tender or
U.S. Government Obligations for the payment of principal of and interest on the
Notes to redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended or supplemented with the written consent
of the Holders of at least a majority in principal amount of the then
Outstanding Notes and (ii) any default (other than with respect to nonpayment or
in respect of a provision that cannot be amended or supplemented without the
written consent of each Holder affected) or noncompliance with any provision may
be waived with the written consent of the Holders of a majority in aggregate
principal amount of the then Outstanding Notes. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, omission, defect or inconsistency, or to comply with
Article IV of the Indenture, or to provide for uncertificated Notes in addition
to or in place of certificated Notes, or to add guarantees with respect to the
Notes or to secure the Notes, or to add additional covenants or surrender rights
and powers conferred on the Company, or to comply with any request of the SEC in
connection with qualifying the Indenture under the TIA, or to make any change
that does not adversely affect the rights of any Holder, or to provide for the
issuance of Exchange Notes or Additional Notes.
13. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Notes may declare all the
Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Notes being due and
payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the
Outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
14. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
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15. No Recourse Against Others
An incorporator, director, officer, employee, stockholder or
controlling person, as such, of the Company or any Note Guarantor shall not have
any liability for any obligations of the Company under the Notes, the Indenture
or any Note Guarantee or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
16. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
17. Abbreviations
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
18. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
[18. ISIN Numbers
The Company has caused ISIN numbers to be printed on the Notes and
has directed the Trustee to use ISIN numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.]
19. Governing Law
This Note shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture which has in it the text of
this Note in larger type. Requests may be made to:
6
JLG Industries, Inc.
1 JLG Drive
McConnellsburg, PA 17233-9533
Attention: Corporate Secretary
7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. Number)
and irrevocably appoint _________________ agent to transfer this Note on the
books of the Company. The agent may substitute another to act for him.
Date: Your Signature:
-------------------- -------------------
Signature Guarantee:
--------------------------------------
(Signature must be guaranteed)
- --------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Exchange Act Rule 17Ad-15.
8
[To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Date of Amount of decrease Amount of increase in Principal Amount of Signature of
Exchange in Principal Amount Principal Amount of this Global Note authorized signatory
of this Global Note this Global Note following such of Trustee or Note
decrease or increase Custodian
]
- -------- -------------------- ------------------------ -------------------- --------------------
9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 3.8 or Section 3.11 of the Indenture, check either box:
[ ] [ ]
SECTION 3.8 SECTION 3.11
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 3.8 or Section 3.11 of the Indenture, state the
principal amount (which must be an integral multiple of $1,000) that you want to
have purchased by the Company: $
Date: Your Signature
---------- ----------------------------
(Sign exactly as your name appears on the
other side of the Note)
Signature Guarantee:
---------------------------------------
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Exchange Act Rule 17Ad-15.
10
EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO QIB
[Date]
The Bank of New York
Corporate Trust Administration
101 Barclay Street
New York, NY 10286
Re: 8 3/8% Senior Subordinated Notes Due 2012 (the "Notes")
of JLG Industries, Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of June 17, 2002
(as amended and supplemented from time to time, the "Indenture"), between the
Company, the Note Guarantors party thereto and The Bank of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to $___________ aggregate principal amount of
Notes [in the case of a transfer of an interest in a Regulation S Global Note:
which represents an interest in a Regulation S Global Note beneficially owned
by] the undersigned (the "Transferor") to effect the transfer of such Notes in
exchange for an equivalent beneficial interest in the Rule 144A Global Note.
In connection with such request, and with respect to such Notes, the
Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), to a transferee that the Transferor reasonably believes is purchasing
the Notes for its own account or an account with respect to which the transferee
exercises sole investment discretion, and the transferee, as well as any such
account, is a "qualified institutional buyer" within the meaning of Rule 144A,
in a transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
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.
Very truly yours,
[Name of Transferor]
By:
----------------------------
------------------------------
Authorized Signature
2
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
[Date]
The Bank of New York
Corporate Trust Administration
101 Barclay Street
New York, NY 10286
Re: 8 3/8% Senior Subordinated Notes Due 2012 (the "Notes")
of JLG Industries, Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of June 17, 2002
(as amended and supplemented from time to time, the "Indenture"), between the
Company, the Note Guarantors party thereto and The Bank of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
In connection with our proposed sale of $________ aggregate
principal amount of the Notes [in the case of a transfer of an interest in a
144A Global Note: , which represent an interest in a 144A Global Note
beneficially owned by] the undersigned ("Transferor"), we confirm that such sale
has been effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(a) the offer of the Notes was not made to a person in the United
States;
(b) either (i) at the time the buy order 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 (ii) the transaction was executed in, on or through the
facilities of a designated off-shore securities market 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;
(c) 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;
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of Notes
being transferred.
In addition, if the sale is made during a Distribution Compliance
Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S
are applicable thereto, we confirm that such sale has been made in accordance
with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case
may be.
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 letter have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
----------------------------
-------------------------------
Authorized Signature
2
EXHIBIT D
FORM OF RULE 144 CERTIFICATION
[Date]
The Bank of New York
Corporate Trust Administration
101 Barclay Street
New York, NY 10286
Re: 8 3/8% Senior Subordinated Notes Due 2012 (the "Notes")
of JLG Industries, Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of June 17, 2002
(as amended and supplemented from time to time, the "Indenture"), between the
Company, the Note Guarantors party thereto and The Bank of New York, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
In connection with our proposed sale of $________ aggregate
principal amount of the Notes [in the case of a transfer of an interest in a
144A Global Note: , which represent an interest in a 144A Global Note
beneficially owned by] the undersigned ("Transferor"), we confirm that such sale
has been effected pursuant to and in accordance with Rule 144 under the
Securities Act.
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.
Very truly yours,
[Name of Transferor]
By:
----------------------------
-------------------------------
Authorized Signature
EXHIBIT E
FORM OF ADDITIONAL NOTE GUARANTEE
This Supplemental Indenture, dated as of [__________] (this
"Supplemental Indenture"), between [name of Additional Note Guarantor], a
[________] [corporation][limited liability company] (the "New Note Guarantor"),
JLG Industries, Inc., a Pennsylvania corporation (together with its successors
and assigns, the "Company"), each other Note Guarantor under the Indenture
referred to below, and The Bank of New York, as Trustee under the Indenture
referred to below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered an Indenture, dated as of June 17, 2002 (as amended, supplemented,
waived or otherwise modified, the "Indenture"), providing for the issuance of
8 3/8% Senior Subordinated Notes Due 2012 of the Company (the "Notes");
WHEREAS, pursuant to Section 11.5 of the Indenture, the Company is
required to cause each Material Domestic Subsidiary created or acquired by the
Company to execute and deliver to the Trustee an Additional Note Guarantee
pursuant to which such Material Domestic Subsidiary will unconditionally
guarantee, jointly and severally with the other Note Guarantors, the Company's
full and prompt payment of the Obligations (as defined in the Indenture) in
respect of the Indenture and the Notes; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee, the
Company and the existing Note Guarantors are authorized to execute and deliver
this Supplemental Indenture to amend or supplement the Indenture, without the
consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Note Guarantor, the Company, each other Note Guarantor and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the Notes
as follows:
Article I
Definitions
Section 1.1. Defined Terms. Unless otherwise defined in this
Supplemental Indenture, terms defined in the Indenture are used herein as
therein defined.
Article II
Agreement to be Bound; Guarantee
Section 2.1. Agreement to be Bound. The New Note Guarantor hereby
becomes a party to the Indenture as a Note Guarantor and as such will have all
of the rights and be subject to all of the obligations and agreements of a Note
Guarantor under the Indenture. The New Note Guarantor hereby agrees to be bound
by all of the provisions of the Indenture applicable to a
Note Guarantor and to perform all of the obligations and agreements of a Note
Guarantor under the Indenture.
Section 2.2. Guarantee. The New Note Guarantor hereby fully,
unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety, jointly and severally with each other Note Guarantor, to each Holder of
the Notes and the Trustee, the full and punctual payment when due, whether at
maturity, by acceleration, by redemption or otherwise, of the Obligations, all
as more fully set forth in Article XI of the Indenture, subject to Article XII
of the Indenture.
Article III
Miscellaneous
Section 3.1. Notices. Any notice or communication delivered to the
Company under the provisions of the Indenture shall constitute notice to the New
Note Guarantor.
Section 3.2. Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.
Section 3.3. Governing Law, etc. This Supplemental Indenture shall
be governed by the provisions set forth in Section 13.8 of the Indenture.
Section 3.4. Severability. In case any provision in this
Supplemental Indenture 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 and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
Section 3.5. Ratification of Indenture; Supplemental Indenture Part
of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Notes
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
Section 3.6. Duplicate and Counterpart Originals. The parties may
sign any number of copies of this Supplemental Indenture. One signed copy is
enough to prove this Supplemental Indenture. This Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be an
original, but all of them together represent the same agreement.
Section 3.7. Headings. The headings of the Articles and Sections in
this Supplemental Indenture have been inserted for convenience of reference
only, are not intended to be considered as a part hereof and shall not modify or
restrict any of the terms or provisions hereof.
2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
JLG INDUSTRIES, INC.
By:
--------------------------------
Name:
Title:
[NAME OF NEW NOTE GUARANTOR],
as a Note Guarantor
By:
--------------------------------
Name:
Title:
[COMPLETE THE FOLLOWING SIGNATURE BLOCK FOR EACH EXISTING NOTE GUARANTOR:]
[NAME OF NOTE GUARANTOR],
as a Note Guarantor
By:
--------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------
Name:
Title:
3