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INDENTURE
Dated as of July 23, 1997
Between
UNITED AUTO GROUP, INC.,
THE GUARANTORS PARTY HERETO,
and
THE BANK OF NEW YORK, Trustee
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$150,000,000
11% Senior Subordinated Notes due 2007
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CROSS-REFERENCE TABLE
Indenture
Trust Indenture Act Section Section
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ss.310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(a) 7.08; 7.10; 13.02
(c) N.A.
ss.311 (a) 7.11
(a) 7.11
(c) N.A.
ss.312 (a) 2.05
(a) 13.03
(c) 13.03
ss.313 (a) 7.06
(a)(1) N.A.
(a)(2) 7.06
(c) 7.06; 13.02
(d) 7.06
ss.314 (a) 4.11; 4.12; 13.02
(a) N.A.
(c)(1) 13.04
(c)(2) 13.04
(c)(3) N.A.
(d) N.A.
(e) 13.05
(f) N.A.
ss.315 (a) 7.01
(a) 7.05; 13.02
(c) 7.01(a)
(d) 7.01(c)
(e) 6.11
ss.316 (a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(A) 6.04
(a)(2) N.A.
(a) 6.07
(c) 10.04
ss.317 (a)(1) 6.08
(a)(2) 6.09
(a) 2.04
ss.318 (a) 13.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
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Page
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ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions..................................................1
Section 1.2. Other Definitions...........................................19
Section 1.3. Incorporation by Reference of Trust Indenture Act...........19
Section 1.4. Rules of Construction.......................................20
ARTICLE 2
THE SECURITIES
Section 2.1. Form and Dating.............................................20
Section 2.2. Execution and Authentication................................22
Section 2.3. Registrar and Paying Agent..................................23
Section 2.4. Paying Agent To Hold Money in Trust.........................23
Section 2.5. Securityholder Lists........................................23
Section 2.6. Transfer and Exchange.......................................24
Section 2.7. Replacement Securities......................................33
Section 2.8. Outstanding Securities......................................33
Section 2.9. Treasury Securities.........................................33
Section 2.10. Temporary Securities........................................34
Section 2.11. Cancellation................................................34
Section 2.12. Defaulted Interest..........................................34
Section 2.13. CUSIP or CINS Number........................................35
Section 2.14. Payments of Interest........................................35
ARTICLE 3.
REDEMPTION
Section 3.1. Notices to Trustee..........................................36
Section 3.2. Selection of Securities To Be Redeemed......................36
Section 3.3. Notice of Redemption........................................36
Section 3.4. Effect of Notice of Redemption..............................37
Section 3.5. Deposit of Redemption Price.................................37
Section 3.6. Securities Redeemed in Part.................................38
ARTICLE 4.
COVENANTS
Section 4.1. Payment of Securities.......................................38
Section 4.2. Maintenance of Office or Agency.............................38
Section 4.3. Limitation on Transactions with Affiliates..................39
Section 4.4. Limitation on Incurrence of Indebtedness....................39
Section 4.5. Limitation on Certain Asset Dispositions....................41
Section 4.6. Limitation on Restricted Payments...........................42
Section 4.7. Corporate Existence.........................................46
Section 4.8. Payment of Taxes and Other Claims...........................46
Section 4.9. Notice of Defaults..........................................46
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Section 4.10. Maintenance of Properties...................................46
Section 4.11. Compliance Certificate......................................47
Section 4.12. Provision of Financial Information..........................47
Section 4.13. Waiver of Stay, Extension or Usury Laws.....................48
Section 4.14. Change of Control...........................................48
Section 4.15. Limitation on Senior Subordinated Indebtedness..............49
Section 4.16. Limitation on Restrictions Affecting Restricted
Subsidiaries..............................................50
Section 4.17. Limitation on Liens.........................................50
Section 4.18. Subsidiary Guarantees.......................................52
ARTICLE 5.
MERGERS; SUCCESSOR CORPORATION
Section 5.1. Restriction on Mergers, Consolidations and Certain
Sales of Assets...........................................52
Section 5.2. Successor Corporation Substituted...........................53
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.1. Events of Default...........................................53
Section 6.2. Acceleration................................................55
Section 6.3. Other Remedies..............................................56
Section 6.4. Waiver of Past Default......................................56
Section 6.5. Control by Majority.........................................57
Section 6.6. Limitation on Suits.........................................57
Section 6.7. Rights of Holders to Receive Payment........................58
Section 6.8. Collection Suit by Trustee..................................58
Section 6.9. Trustee May File Proofs of Claim............................58
Section 6.10. Priorities..................................................59
Section 6.11. Undertaking for Costs.......................................59
ARTICLE 7
TRUSTEE
Section 7.1. Duties of Trustee...........................................59
Section 7.2. Rights of Trustee...........................................61
Section 7.3. Individual Rights of Trustee................................62
Section 7.4. Trustee's Disclaimer........................................62
Section 7.5. Notice of Defaults..........................................62
Section 7.6. Reports by Trustee to Holders...............................62
Section 7.7. Compensation and Indemnity..................................63
Section 7.8. Replacement of Trustee......................................64
Section 7.9. Successor Trustee by Merger, etc............................65
Section 7.10. Eligibility; Disqualification...............................65
Section 7.11. Preferential Collection of Claims Against Company...........66
ARTICLE 8
SUBORDINATION OF SECURITIES
Section 8.1. Securities Subordinated to Senior Debt......................66
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Section 8.2. No Payment on Securities in Certain Circumstances...........66
Section 8.3. Payment Over of Proceeds upon Dissolution, etc..............67
Section 8.4. Subrogation.................................................69
Section 8.5. Obligations of Company Unconditional........................69
Section 8.6. Notice to Trustee...........................................70
Section 8.7. Reliance on Judicial Order or Certificate of
Liquidating Agent.........................................71
Section 8.8. Trustee's Relation to Senior Debt...........................71
Section 8.9. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt..................71
Section 8.10. Securityholders Authorize Trustee To
Effectuate Subordination of Securities....................72
Section 8.11. This Article Not to Prevent Events of Default...............72
Section 8.12. Trustee's Compensation Not Prejudiced.......................72
Section 8.13. No Waiver of Subordination Provisions.......................72
Section 8.14. Subordination Provisions Not Applicable to Money Held
in Trust for Securityholders; Payments May Be Paid
Prior to Dissolution......................................73
ARTICLE 9
DISCHARGE OF INDENTURE
Section 9.1. Termination of Company's Obligations........................73
Section 9.2. Application of Trust Money..................................75
Section 9.3. Repayment to Company........................................75
Section 9.4. Reinstatement...............................................76
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.1. Without Consent of Holders..................................76
Section 10.2. With Consent of Holders.....................................77
Section 10.3. Compliance with Trust Indenture Act.........................79
Section 10.4. Revocation and Effect of Consents...........................79
Section 10.5. Notation on or Exchange of Securities.......................79
Section 10.6. Trustee To Sign Amendments, etc.............................80
ARTICLE 11
GUARANTEE
Section 11.1. Unconditional Guarantee.....................................80
Section 11.2. Severability................................................81
Section 11.3. Release of a Guarantor......................................81
Section 11.4. Limitation of Guarantor's Liability.........................82
Section 11.5. Contribution................................................82
Section 11.6. Execution of Guarantee......................................82
Section 11.7. Subordination of Subrogation and Other Rights...............83
ARTICLE 12
SUBORDINATION OF GUARANTEE
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Section 12.1. Guarantee Obligations Subordinated to Senior Debt
of Guarantor..............................................83
Section 12.2. No Payment on Guarantees in Certain Circumstances...........83
Section 12.3. Payment Over of Proceeds upon Dissolution, etc..............85
Section 12.4. Subrogation.................................................86
Section 12.5. Obligations of Guarantors Unconditional.....................86
Section 12.6. Notice to Trustee...........................................87
Section 12.7. Reliance on Judicial Order or Certificate of
Liquidating Agent.........................................88
Section 12.8. Trustee's Relation to Senior Debt of Guarantors.............88
Section 12.9. Subordination Rights Not Impaired by Acts
or Omissions of the Guarantors or Holders
of Senior Debt of Guarantors..............................89
Section 12.10. Securityholders Authorize Trustee to
Effectuate Subordination of Guarantee.....................89
Section 12.11. This Article Not to Prevent Events of Default...............89
Section 12.12. Trustee's Compensation Not Prejudiced.......................89
Section 12.13. No Waiver of Guarantee Subordination Provisions.............90
Section 12.14. Payments May Be Paid Prior to Dissolution...................90
ARTICLE 13
MISCELLANEOUS
Section 13.1. Trust Indenture Act Controls................................90
Section 13.2. Notices.....................................................91
Section 13.3. Communications by Holders with Other Holders................92
Section 13.4. Certificate and Opinion as to Conditions Precedent..........92
Section 13.5. Statements Required in Certificate or Opinion...............92
Section 13.6. Rules by Trustee, Paying Agent, Registrar...................93
Section 13.7. Governing Law...............................................93
Section 13.8. No Recourse Against Others..................................93
Section 13.9. Successors..................................................93
Section 13.10. Counterpart Originals.......................................94
Section 13.11. Severability................................................94
Section 13.12. No Adverse Interpretation of Other Agreements...............94
Section 13.13. Legal Holidays..............................................94
EXHIBIT A - Form of Security A-1
EXHIBIT B - Form of Certificate of Transfer B-1
EXHIBIT C - Form of Certificate of Exchange C-1
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of this Indenture.
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INDENTURE dated as of July 23, 1997, between UNITED AUTO GROUP, INC.,
a Delaware corporation (the "Company"), the Guarantors party hereto and THE
BANK OF NEW YORK, a bank and trust company organized under the New York Banking
Law, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
11% Senior Subordinated Notes due 2007:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
connection with an Acquisition of such Person or (b) existing at the time such
Person becomes a Restricted Subsidiary or is merged or consolidated with or
into the Company or any Restricted Subsidiary; provided, however, that such
Indebtedness (x) was not Incurred in connection with, or in contemplation of,
such Acquisition, such Person becoming a Restricted Subsidiary or such merger
or consolidation and (y) is not recourse to any Person or assets other than
such Person or its assets (including its Subsidiaries and their assets).
"Acquisition" means (i) any capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) by the Company or any
Restricted Subsidiary to any other Person, or any acquisition or purchase of
Capital Stock of any other Person by the Company or any Restricted Subsidiary,
in either case pursuant to which such Person shall become a Restricted
Subsidiary or shall be consolidated or merged with or into the Company or any
Restricted Subsidiary or (ii) any acquisition by the Company or any Restricted
Subsidiary of the assets of any Person which constitute substantially all of an
operating unit or line of business of such Person or which is otherwise outside
of the ordinary course of business.
"Additional Interest" shall have the meaning set forth in the
Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar. See Section
2.03.
"Applicable Procedures" means with respect to any transfer or exchange
of interests in a Global Security, the rules and procedures of DTC, Euroclear
and Cedel that apply to such transfer or exchange.
"Asset Disposition" means any sale, transfer or other disposition
(including, without limitation, by merger, consolidation or sale-and-leaseback
transaction) of (i) shares of Capital Stock of any Restricted Subsidiary (other
than directors' qualifying shares) or (ii) property or assets (other than any
cash or Cash Equivalents) of the Company or any Restricted Subsidiary;
provided, however, that an Asset Disposition shall not include (a) any such
sale, transfer or other disposition to the Company or to any Restricted
Guarantor, (b) any sale, transfer or other disposition of defaulted receivables
for collection or any sale, transfer or other disposition of property or assets
in the ordinary course of business, (c) any sale, transfer or other disposition
that does not (together with all related sales, transfers or dispositions)
involve aggregate consideration in excess of $2.5 million, (d) the granting of
any Lien (or foreclosure thereon) to the extent that such Lien is granted in
compliance with Section 4.17, (e) any Restricted Payment permitted by Section
4.06, (f) the sale, assignment, lease, conveyance or disposition or other
transfer (however effected, including, without limitation, by merger or
consolidation) of all or substantially all of the assets of the Company and the
Restricted Subsidiaries, taken as a whole, in accordance with Section 5.01 or
(g) any disposition that constitutes a Change of Control.
"Atlantic Finance" means Atlantic Auto Finance Corporation
and its successors.
"Atlantic Finance Loan" means any loan by Atlantic Finance to
the Company which is due not later than the business day next following the day
such loan was made; provided, however, that (x) the proceeds of such loan are
deposited with a floor plan lender (including any bank holding Floor Plan
Notes) and (y) such loan bears interest at a rate not higher than that accruing
on such deposit.
"Average Life" means, as of the date of determination, with
respect to any Indebtedness for borrowed money or Preferred Stock, the quotient
obtained by dividing (i) the sum of the products of the number of years from
the date of determination to the dates of each successive scheduled principal
or liquidation value payments of such Indebtedness or Preferred Stock,
respectively, and the amount of such principal or liquidation value payments,
by (ii) the sum of all such principal or liquidation value payments.
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"Basket" has the meaning set forth in Section 4.06.
"Board of Directors" means the Board of Directors of the
Company or any Guarantor, as the case may be, or any authorized committee of
that Board.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in the
City of New York, New York are authorized or obligated by law or executive
order to close.
"Capital Lease Obligations" of any Person means the
obligations to pay rent or other amounts under a lease of (or other
Indebtedness arrangements conveying the right to use) real or personal property
of such Person which are required to be classified and accounted for as a
capital lease or liability on the face of a balance sheet of such Person in
accordance with GAAP. The amount of such obligations shall be the capitalized
amount thereof in accordance with GAAP and the stated maturity thereof shall be
the date of the last payment of rent or any other amount due under such lease
prior to the first date upon which such lease may be terminated by the lessee
without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, partnership interests, participations or other equivalents (however
designated) of ownership of such Person.
"Cash Equivalents" means (i) marketable direct obligations
issued or guaranteed by the United States of America, or any governmental
entity or agency or political subdivision thereof (provided, that the full
faith and credit of the United States of America is pledged in support
thereof), maturing within one year of the date of purchase; (ii) commercial
paper issued by corporations or financial institutions maturing within 180 days
from the date of the original issue thereof, and rated "P-1" or better by
Moody's Investors Service or "A-1" or better by Standard & Poor's Ratings Group
or an equivalent rating or better by any other nationally recognized securities
rating agency; (iii) certificates of deposit issued or acceptances accepted by
or guaranteed by any bank or trust company organized under the laws of the
United States of America or any state thereof or the District of Columbia, in
each case having capital, surplus and undivided profits totaling more than
$500,000,000, maturing within one year of the date of purchase; and (iv) money
market funds substantially all of whose assets comprise securities of the type
described in clauses (i) through (iii).
"Common Stock" of any Person means Capital Stock of such
Person that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary
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or involuntary liquidation, dissolution or winding up of such Person, to
shares of Capital Stock of any other class of such Person.
"Consolidated Cash Flow Available for Fixed Charges" means
for any period the Consolidated Net Income for such period (x) increased (to
the extent Consolidated Net Income for such period has been reduced thereby) by
the sum of (without duplication) (i) Consolidated Fixed Charges for such
period, plus (ii) Consolidated Income Tax Expense for such period, plus (iii)
the consolidated depreciation and amortization expense included in the income
statement of the Company prepared in accordance with GAAP for such period, plus
(iv) any other non-cash charges to the extent deducted from or reflected in
such Consolidated Net Income except for any non-cash charges that represent
accruals of, or reserves for, cash disbursements to be made in any future
accounting period and (y) decreased by interest income on deposits with floor
plan lenders (including any bank holding Floor Plan Notes) made with proceeds
of Atlantic Finance Loans.
"Consolidated Cash Flow Ratio" means for any period the ratio
of (i) Consolidated Cash Flow Available for Fixed Charges for such period to
(ii) Consolidated Fixed Charges for such period; provided, however, that all
Incurrences and repayments of Indebtedness (including the Incurrence giving
rise to such calculation and any repayments in connection therewith) and all
dispositions (including discontinued operations) or acquisitions of assets
(other than in the ordinary course of business) made during or after such
period and on or prior to the date of determination shall be given pro forma
effect as if they occurred on the first day of such four-quarter period, except
that Indebtedness under the Senior Credit Facility shall be deemed to be the
average daily balance of such Indebtedness during such four-quarter period.
Calculations of pro forma amounts in accordance with this definition may take
into account a reduction of cost of goods sold in the amount of interest earned
on financing proceeds deposited with any holder of Floor Plan Notes.
"Consolidated Fixed Charges" means for any period, without
duplication, (a) the consolidated interest expense included in a consolidated
income statement (without deduction of interest or finance charge income) of
the Company and the Restricted Subsidiaries for such period calculated on a
consolidated basis in accordance with GAAP (it being understood that the
foregoing does not include interest on Floor Plan Notes), but excluding (x) the
amortization of deferred financing costs and (y) interest on Atlantic Finance
Loans, and (b) dividend requirements of the Company and the Restricted
Subsidiaries with respect to Disqualified Stock and with respect to all other
Preferred Stock of Restricted Subsidiaries (in each case (i) whether in cash or
otherwise (except dividends payable solely in shares of Capital Stock (other
than any Disqualified Stock) of the Company or any Restricted Subsidiary) and
(ii) other than dividends with respect to Capital Stock held by the
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Company or any Restricted Guarantor) paid, declared, accrued or accumulated
during such period times, in the case of this clause (b), a fraction the
numerator of which is one and the denominator of which is one minus the then
effective consolidated federal, state and local income tax rate of the
Company, expressed as a decimal.
"Consolidated Income Tax Expense" means for any period the
consolidated provision for income taxes of the Company and the Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with GAAP.
"Consolidated Net Income" means for any period the
consolidated net income (or loss) of the Company and the Restricted
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP; provided, however, that there shall be excluded therefrom (a) the
net income (or loss) of any Person acquired by the Company or any Restricted
Subsidiary in a pooling-of-interests transaction for any period prior to the
date of such transaction, (b) the net income (or loss) of any Restricted
Subsidiary (other than any Guarantor) which is then subject to restrictions
that prevent or limit the payment of dividends or the making of distributions
to such Person to the extent of such restrictions (regardless of any waiver
thereof), (c) non-cash gains and losses due solely to fluctuations in currency
values, (d) the net income (or loss) of any Person that is not a Restricted
Subsidiary, except to the extent of the amount of dividends or other
distributions representing the Company's proportionate share of such Person's
net income for such period actually paid in cash to the Company by such Person
during such period, (e) other than for calculating the Basket, gains or losses
on Asset Dispositions by the Company or any Restricted Subsidiary, (f) other
than for calculating the Basket, all extraordinary or non-recurring gains or
losses determined in accordance with GAAP, (g) the effect of FASB 52
(hyperinflationary accounting) and interpretations by the SEC thereof and (h)
in the case of a successor to the Company by consolidation or merger or as a
transferee of the Company's assets, any earnings (or losses) of the successor
corporation prior to such consolidation, merger or transfer of assets.
"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 Stock of such Person or attributable to Unrestricted
Subsidiaries.
"Continuing Director" means a director who either was a
member of the Board of Directors of the Company on the Issue Date or who became
a director of the Company subsequent to the Issue Date and whose election, or
nomination for election by the Company's stockholders, was duly approved by a
majority of the Continuing Directors then on the Board of Directors of the
Company, either by a specific vote or by approval of the proxy
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statement issued by the Company on behalf of the entire Board of Directors of
the Company in which such individual is named as nominee for director.
"Currency Agreement" means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement
or arrangement, which may include the use of derivatives, designed to protect
such Person against, or to expose such Person to, fluctuations in currency
values.
"Default" means any event that is, or after notice or lapse
of time or both would become, an Event of Default.
"Designated Senior Debt" means (i) so long as the Senior
Credit Facility is in effect, the Senior Debt incurred thereunder and (ii) any
other Senior Debt which has at the time of initial issuance an aggregate
outstanding principal amount in excess of $25 million which has been so
designated as Designated Senior Debt by the Board of Directors of the Company
at the time of initial issuance in a resolution delivered to the Trustee.
"Disinterested Director" means a member of the Board of
Directors of the Company who does not have any material direct or indirect
financial interest in or with respect to the transaction being considered.
"Disqualified Stock" of any Person means any Capital Stock of
such Person which, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the final maturity of the Notes; provided,
however, that any such Capital Stock that so matures or is redeemable in part
shall be deemed Disqualified Stock only to the extent that it so matures or is
so redeemable.
"DTC" means The Depository Trust Company or its successors.
"Euroclear" means Morgan Guaranty Trust Company of New York
(Brussels Office) as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Exchange Registration Statement" has the meaning set forth
in the Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset, the
price (after taking into account any liabilities relating to such asset) which
could be negotiated in an arm's-length transaction, for cash, between a willing
seller and a willing and
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able buyer, neither of which is under any compulsion to complete the
transaction; provided, however, that the Fair Market Value of any such asset
or assets shall be determined conclusively (i) for any determination pursuant
to the covenant described under Section 4.05 or 4.06 by the Board of Directors
of the Company acting in good faith, which determination shall be evidenced by
a resolution of such Board delivered to the Trustee, and (ii) for any other
determination by an officer of the Company acting in good faith.
"Floor Plan Notes" means Indebtedness of the Company or any
Restricted Subsidiary all of the proceeds of which are used to purchase
vehicles and/or vehicle parts and supplies to be sold in the ordinary course of
business of the Company and the Restricted Subsidiaries.
"GAAP" means generally accepted accounting principles,
consistently applied, as in effect on the Issue Date in the United States of
America, as 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 is approved by a significant
segment of the accounting profession in the United States.
"Guarantee" means a guarantee of the Notes by a Guarantor
under this Indenture.
"guarantee" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of negotiable instruments for collection
in the ordinary course of business), direct or indirect, in any manner, of any
part or all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any way
the payment or performance (or payment of damages in the event of
non-performance) of all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of credit.
A guarantee shall include, without limitation, any agreement to maintain or
preserve any other Person's financial condition or to cause any other Person to
achieve certain levels of operating results. It is understood that the
obligations of the Company under the Support Agreement dated as of June 14,
1996 between the Company and Atlantic Auto Second Funding Corporation
constitute a guarantee for purposes of this Indenture only to the extent of the
accrued liability, if any, of the Company for any breach of the representations
and warranties of Atlantic Finance contained in Section 3.2 of the Purchase
Agreement dated as of June 14, 1996 between Atlantic Auto Second Funding
Corporation and Atlantic Finance, and that obligations of the Company under
similar agreements will constitute a guarantee for purposes of this Indenture
only to the extent of similar accrued liabilities.
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"Guarantor" means (i) each Subsidiary of the Company that, on
the Issue Date, is an obligor (including as guarantor) under, or in respect of,
the Senior Credit Facility and (ii) each Subsidiary of the Company that
pursuant to the terms of this Indenture executes a supplemental indenture to
this Indenture as a Guarantor, in each case, until such Subsidiary is released
from its Guarantee.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"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 or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "Incurrence," "Incurred" and "Incurring"
shall have meanings correlative to the foregoing). Indebtedness of any Person
or any of its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary (or is merged into or consolidates with the Company or
any Restricted Subsidiary), whether or not such Indebtedness was incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary (or being merged into or consolidated with the Company or any
Restricted Subsidiary), shall be deemed Incurred at the time any such Person
becomes a Restricted Subsidiary or merges into or consolidates with the Company
or any Restricted Subsidiary. Neither the accrual of interest, nor the
accretion of accreted value, shall be deemed to be an Incurrence.
"Indebtedness" means (without duplication), with respect to
any Person, whether recourse is to all or a portion of the assets of such
Person and whether or not contingent, (i) all indebtedness of such Person for
money borrowed, (ii) all indebtedness of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses, (iii)
every reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such Person, (iv) all indebtedness of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business), (v)
every Capital Lease Obligation of such Person, (vi) every net obligation under
interest rate swap or similar agreements or foreign currency hedge, exchange or
similar agreements of such Person and (vii) every obligation of the type
referred to in clauses (i) through (vi) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable for, directly or indirectly, as obligor, guarantor
or otherwise. Indebtedness (a) shall include (without duplication) the
-8-
liquidation preference and any mandatory redemption payment obligations in
respect of any Disqualified Stock of the Company, and any Preferred Stock of a
Subsidiary of the Company, (b) shall never be calculated taking into account
any cash and cash equivalents held by such Person, (c) shall not include
obligations arising from agreements of the Company or a Subsidiary to provide
for indemnification, adjustment of purchase price, earn-out or other similar
obligations, in each case, Incurred in connection with the acquisition or
disposition of any business or assets of a Subsidiary, (d) which provides that
an amount less than the principal amount thereof shall be due upon any
declaration of acceleration thereof shall be deemed to be incurred or
outstanding in an amount equal to the accreted value thereof at the date of
determination determined in accordance with GAAP and (e) shall not be deemed to
be Incurred upon the issuance of a guarantee by the Company, in connection with
an Acquisition, of the price of its Common Stock, unless such guarantee is
evidenced by a bond, debenture, note or similar instrument.
"Indenture" means this Indenture as amended or supplemented
from time to time in accordance with its terms.
"Initial Global Securities" means the Regulation S Global
Security and the 144A Global Security, each of which contains a Securities Act
Legend.
"Initial Securities" means the Securities containing a
Securities Act Legend.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D promulgated under the Securities Act.
"interest" means, with respect to the Notes, the sum of any
cash interest and any Additional Interest on the Notes.
"Interest Payment Date" has the meaning given to such term
in the Securities.
"Interest Rate Obligations" means, with respect to any
Person, the obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and (ii)
other agreements or arrangements designed to protect such Person against, or to
expose such Person to, fluctuations in interest rates.
"Investment" by any Person means any direct or indirect loan,
advance, guarantee or other extension of credit or capital contribution to (by
means of transfers of cash or other property to others or payments for property
or services for the account or use of others, or otherwise), or purchase or
acquisition of
-9-
Capital Stock, bonds, notes, debentures or other securities or evidence of
Indebtedness issued by, any other Person.
"Issue Date" means July 23, 1997, the original issue date of
the Securities.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Net Available Proceeds" from any Asset Disposition by any
Person means cash or Cash Equivalents received (including by way of sale or
discounting of a note, installment receivable or other receivable, but
excluding any other consideration received (x) in the form of assumption by the
acquiror of Indebtedness or other obligations relating to such properties or
assets or (y) in any other non-cash form) therefrom by such Person, including
any cash received by way of deferred payment or upon the monetization or other
disposition of any non-cash consideration (including notes or other securities)
received in connection with such Asset Disposition, net of (i) all legal, title
and recording tax expenses, commissions, any relocation expenses incurred as a
result thereof and other fees and expenses incurred and all federal, state,
foreign and local taxes required to be accrued as a liability as a consequence
of such Asset Disposition, (ii) all payments made by such Person or any of its
Restricted Subsidiaries on, or in respect of, any Indebtedness (A) which is
secured by such assets in accordance with the terms of any Lien upon or with
respect to such assets or (B) which must, by the terms of such Lien or
otherwise (including the obtaining of any necessary consent in respect thereof
to such Asset Disposition) or by applicable law, be repaid as a result of such
Asset Disposition, (iii) all payments made with respect to liabilities
associated with the assets which are the subject of the Asset Disposition,
including, without limitation, trade payables and other accrued liabilities,
(iv) appropriate amounts to be provided by such Person or any Restricted
Subsidiary thereof, as the case may be, as a reserve in accordance with GAAP
against any liabilities associated with such assets and retained by such Person
or any Restricted Subsidiary thereof, as the case may be, after such Asset
Disposition, including, without limitation, liabilities under any
indemnification obligations and severance and other employee termination costs
associated with such Asset Disposition, until such time as such amounts are no
longer reserved or such reserve is no longer necessary (at which time any
remaining amounts will become Net Available Proceeds to be allocated in
accordance with the provisions of the second and third sentences of Section
4.05) and (v) all distributions and
-10-
other payments made to minority interest holders in Restricted Subsidiaries of
such Person or joint ventures as a result of such Asset Disposition.
"Net Investment" means, in respect of any Investment and the
issuer thereof (and its Subsidiaries), the excess of (i) the aggregate amount
of all Investments made therein by the Company or any Restricted Subsidiary on
or after the Issue Date (including the Fair Market Value of all such
Investments not made in cash or Cash Equivalents, valued at the time of each
such Investment) over (ii) the aggregate amount returned in cash or Cash
Equivalents on or with respect to Investments in such Person (whenever such
Investment was made) whether through the sale or other disposition of the
Investment in such Person (or portion thereof) or through interest payments,
principal payments, dividends or other distributions or payments; provided,
however, that such payments or distributions shall not be (and have not been)
included in Section 4.06(a)(3)(D).
"Offer to Purchase" means a written offer (the "Offer") sent
by the Company by first class mail, postage prepaid, to each Holder at his
address appearing in the register for the Securities on the date of the Offer
offering to purchase up to the principal amount of Securities specified in such
Offer at the purchase price specified in such Offer (as determined pursuant to
this Indenture). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "Expiration Date") of the Offer to Purchase
which shall be not less than 30 days nor more than 60 days after the date of
such Offer and a settlement date (the "Purchase Date") for purchase of
Securities within five Business Days after the Expiration Date. The Company
shall notify the Trustee in writing at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of
the Company's obligation to make an Offer to Purchase, and the Offer shall be
mailed by the Company or, at the Company's written request, by the Trustee in
the name and at the expense of the Company. The Offer shall contain all the
information required by applicable law to be included therein. The Offer shall
contain all instructions and materials necessary to enable such holders to
tender Securities pursuant to the Offer to Purchase. The Offer shall also
state:
(i) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(ii) the Expiration Date and the Purchase Date;
(iii) the aggregate principal amount of the outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section of this Indenture requiring the Offer to
Purchase) (the "Purchase Amount");
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(iv) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(v) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal amount;
(vi) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(vii) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(viii) that on the Purchase Date the Purchase Price will become due
and payable upon each Security being accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on and after
the Purchase Date;
(ix) that each Holder electing to tender all or any portion of a
Security pursuant to the Offer to Purchase will be required to surrender such
Security at the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Security being duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing);
(x) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not later
than the close of business on the fifth Business Day next preceding the
Expiration Date, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Securities the holder tendered, the
certificate number of the Securities the Holder tendered and a statement that
such Holder is withdrawing all or a portion of his tender;
(xi) that (a) if Securities in an aggregate principal amount less
than or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities in an aggregate principal amount in excess of
the Purchase Amount are tendered and not withdrawn pursuant to the Offer to
Purchase, the Company shall purchase Securities having an aggregate principal
amount equal to the Purchase Amount on a pro rata basis (with such adjustments
as may be deemed appropriate so that only Securities in denominations of $1,000
or integral multiples thereof shall be purchased); and
-12-
(xii) that in the case of any Holder whose Security is purchased only
in part, the Company shall execute and the Trustee shall authenticate and
deliver to the holder of such Security without service charge, a new Security
or Securities, of any authorized denomination as requested by such holder in
writing, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
An Offer to Purchase shall be governed by and effected in
accordance with the provisions above pertaining to any Offer. An Offer to
Purchase may be conditioned on the consummation of the applicable Change of
Control events.
"Officer" means the Chairman of the Board, the Chief
Executive Officer, any Executive Vice President, any Senior Vice President, the
Chief Financial Officer, the Treasurer, or the Secretary of the Company.
"Officers' Certificate" means a certificate, signed by two
Officers (at least one of whom shall be the Chief Financial Officer or Senior
Vice President-Finance of the Company) or by an Officer and an Assistant
Treasurer or Assistant Secretary of the Company, complying with Sections 13.04
and 13.05.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Participant" means any Person who has an account with DTC.
"Permitted Holder" means any of Trace, Harvard Private
Capital Group, Inc., Aeneas Venture Corporation and Apollo Advisors, L.P. and
their Affiliates.
"Permitted Investments" means (i) Investments in Cash
Equivalents; (ii) Investments representing Capital Stock or obligations issued
to the Company or any Restricted Subsidiary in the course of the good faith
settlement of claims against any other Person or by reason of a composition or
readjustment of debt or a reorganization of any debtor of the Company or any
Restricted Subsidiary; (iii) deposits, including interest-bearing deposits,
maintained in the ordinary course of business in banks or with floor plan
lenders; (iv) trade receivables and prepaid expenses, in each case arising in
the ordinary course of business; provided, however, that such receivables and
prepaid expenses would be recorded as assets of such Person in accordance with
GAAP; (v) endorsements for collection or deposit in the ordinary course of
business by such Person of bank drafts and similar negotiable instruments of
such other Person received as payment for ordinary course of business trade
receivables; (vi) any Interest Rate Obligations or Currency Agreements with an
unaffiliated Person permitted by Section 4.14; (vii) Investments received as
consideration for an Asset Disposition in compliance
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with Section 4.05; (viii) Investments in the Company or any Restricted
Subsidiary or any Person that after giving effect to such Investment will be a
Restricted Subsidiary; and (ix) prepaid expenses and loans or advances to
employees of the Company or any Restricted Subsidiary in the ordinary course
of business.
"Permitted Refinancing" means, with respect to any
Indebtedness, Indebtedness to the extent representing a Refinancing of such
Indebtedness; provided, however, that (a) such Indebtedness does not exceed the
amount of Indebtedness so Refinanced plus the amount of any premium required to
be paid in connection with such Refinancing pursuant to the terms of the
Indebtedness Refinanced or the amount of any premium reasonably determined by
the issuer of such Indebtedness as necessary to accomplish such Refinancing by
means of a tender offer, exchange offer or privately negotiated repurchase,
plus the expenses of such issuer reasonably incurred in connection therewith,
(b) in the case of any Refinancing of Indebtedness that is pari passu with the
Securities, such Refinancing Indebtedness is made pari passu with or
subordinate in right of payment to the Securities, and, in the case of any
Refinancing of Indebtedness that is subordinate in right of payment to the
Securities, such Refinancing Indebtedness is subordinate in right of payment to
the Securities on terms no less favorable to the Holders than those contained
in the Indebtedness being Refinanced, (c) the Refinancing Indebtedness by its
terms, or by the terms of any agreement or instrument pursuant to which such
Indebtedness is issued, does not have an Average Life that is less than the
remaining Average Life of the Indebtedness being Refinanced and does not permit
redemption or other retirement (including pursuant to any required offer to
purchase to be made by the Company or a Restricted Subsidiary) of such
Indebtedness at the option of the holder thereof prior to the final stated
maturity of the Indebtedness being Refinanced, other than a redemption or other
retirement at the option of the holder of such Indebtedness (including pursuant
to a required offer to purchase made by the Company or a Restricted Subsidiary)
which is conditioned upon a change of control of the Company pursuant to
provisions substantially similar to those contained in Section 4.14 or which is
otherwise on terms substantially similar to those in such Indebtedness being
Refinanced and (d) such Refinancing Indebtedness is Incurred by the obligor on
the Indebtedness being Refinanced or by the Company or any Restricted
Guarantor.
"Person" means any individual, corporation, limited or
general partnership, limited liability company, limited liability partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Stock" means Capital Stock of any Person of any
class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding
-14-
up of such Person, to Capital Stock of any other class of such Person.
"principal" of any Security means principal of, and premium,
if any, with respect to, such Security.
"Private Exchange Securities" has the meaning set forth in
the Registration Rights Agreement.
"Public Equity Offering" means an underwritten public
offering of Common Stock of the Company pursuant to an effective registration
statement filed under the Securities Act (excluding any registration statements
filed on Form S-8 or any successor form).
"Purchase Date" has the meaning set forth in the definition
of "Offer to Purchase."
"Purchase Money Debt" means Indebtedness of the Company or
any Restricted Subsidiary Incurred for the purpose of financing all or any part
of the purchase price, or the cost of construction or improvement, of any
property; provided, however, that the aggregate amount of such Indebtedness
shall not exceed the lesser of (x) the Fair Market Value of such property or
(y) such purchase price or cost.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified under Rule 144A under the Securities Act.
"Qualified Stock" means any Capital Stock of the Company
other than Disqualified Stock.
"Refinance" means refinance, renew, extend, replace, defease
or refund; and "Refinancing" and "Refinanced" have correlative meanings.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof among the Company, J.P. Morgan Securities Inc.,
Salomon Brothers Inc, CIBC Wood Gundy Securities Corp., Montgomery Securities
and Scotia Capital Markets (USA) Inc.
"Regulation S" means Regulation S under the Securities Act.
"Replacement Assets" means (x) properties and assets (other
than cash or any Capital Stock or other security) that will be used in a
business of the Company and the Restricted Subsidiaries conducted on the Issue
Date or in a business reasonably related thereto or (y) Capital Stock of any
Person that will become on the date of Acquisition thereof a Restricted
Subsidiary as a result of such Acquisition.
-15-
"Restricted Guarantor" means, at any time of determination, a
Restricted Subsidiary that is a Guarantor at such time.
"Restricted Physical Security" means a Physical Security
containing, or required to contain, a Securities Act Legend.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 11% Senior Subordinated Notes due 2007
issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Senior Credit Facility" means the Credit Agreement, dated as
of March 20, 1997, among the Company, as borrower, the guarantors party
thereto, The Bank of Nova Scotia, as administrative agent, Morgan Guaranty
Trust Company of New York, as documentation agent, and the lenders named
therein, including any deferrals or Refinancings thereof, or amendments,
modifications or supplements thereto (including, without limitation, any
amendment increasing the amount borrowed thereunder), and any agreement
providing therefor whether by or with the same or any other lender, creditors
or group of creditors and including related notes, guarantee agreements and
other instruments and agreements executed in connection therewith.
"Senior Debt" means, with respect to any Person at any date,
(i) in the case of the Company or any Guarantor, all Indebtedness under the
Senior Credit Facility, including principal, premium, if any, and interest on
such Indebtedness and all other amounts due on or in connection with such
Indebtedness, including all charges, fees and expenses, (ii) all other
Indebtedness of such Person for borrowed money, including principal, premium,
if any, and interest on such Indebtedness, unless the agreement or instrument
under which such Indebtedness for borrowed money is created, incurred, assumed
or guaranteed expressly provides that such Indebtedness for borrowed money is
not senior or superior in right of payment to the Securities, and all
Refinancings or amendments thereof and (iii) all interest on any Indebtedness
referred to in clauses (i) and (ii) accruing during the pendency of any
bankruptcy or insolvency proceeding, whether or not allowed or allowable as a
claim in such proceeding
-16-
thereunder. Notwithstanding the foregoing, Senior Debt of any Person shall not
include (a) Indebtedness which is pursuant to its terms or any agreement or
instrument relating thereto subordinated or junior in right of payment or
otherwise to any other Indebtedness of such Person (including, without
limitation, Indebtedness represented by Disqualified Stock); provided,
however, that no Indebtedness shall be deemed to be subordinated or junior in
right of payment or otherwise to any other Indebtedness of a Person solely by
reason of such other Indebtedness being secured and such Indebtedness not
being secured, (b) the Securities or the Guarantees, (c) any Indebtedness of
such Person to any of its Subsidiaries, (d) Indebtedness Incurred in violation
of Section 4.04, (e) obligations for goods, materials or services purchased or
rendered in the ordinary course of business or obligations consisting of trade
payables, (f) any liability for federal, state, local or other taxes owed or
owing by such Person and (g) any Indebtedness which, when incurred and without
respect to any election under Section 1111(b) of the Bankruptcy Code, is
without recourse to such Person.
"Shelf Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Subordinated Indebtedness" of the Company or any Guarantor
means any Indebtedness (whether outstanding on the date hereof or hereafter
Incurred) which is by its terms expressly subordinate or junior in right of
payment to the Securities or the Guarantee of such Guarantor, as the case may
be.
"Subsidiary" of any Person means (i) a corporation more than
50% of the outstanding Voting Stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more other Subsidiaries thereof or (ii) any other Person
(other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries
thereof, directly or indirectly, has at least a majority ownership and voting
power relating to the policies, management and affairs thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss.ss. 77aaa-77bbbb), as in effect on the date of this Indenture, except as
provided in Section 10.03.
"Trace" means Trace International Holdings, Inc. and its
successors.
"Trust Officer" means any officer within the corporate trust
department (or any successor group) of the Trustee including any vice
president, assistant vice president, assistant secretary or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at that time shall be such officers,
-17-
and also means, with respect to a particular corporate trust matter, any other
officer to whom such trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Unrestricted Global Securities" means one or more Global
Securities that do not and are not required to bear the Securities Act Legend.
"Unrestricted Physical Securities" means one or more Physical
Securities that do not and are not required to bear the Securities Act Legend.
"Unrestricted Securities" means the Securities that do not
and are not required to bear the Securities Act Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination has been designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below, (ii) any
Subsidiary of an Unrestricted Subsidiary and (iii) until it is redesignated as
a Restricted Subsidiary in the manner provided below, Atlantic Finance. Any
such designation by the Board of Directors will be evidenced to the Trustee by
promptly filing with the Trustee a copy of the board resolution giving effect
to such designation and an officers' certificate certifying that such
designation complied with the foregoing provisions. The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, at any
time, (a) be liable for any Indebtedness of any Unrestricted Subsidiary (other
than in the form of an Investment therein in accordance with Section 4.06) or
(b) be liable for any Indebtedness that 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 stated final maturity
upon the occurrence of a default with respect to any Indebtedness of any
Unrestricted Subsidiary. The Board of Directors may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that
(i) no Default shall have occurred and be continuing and (ii) Indebtedness of
such Unrestricted Subsidiary and all Liens on any asset of such Unrestricted
Subsidiary outstanding immediately following such redesignation would, if
Incurred at such time, be permitted to be Incurred under this Indenture.
"Voting Stock" of any Person means the Capital Stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason
of any contingency.
-18-
"Wholly Owned Subsidiary" means a Restricted Subsidiary all
of the outstanding Capital Stock or other ownership interests of which (other
than directors' qualifying shares) shall at the time be owned by the Company
and/or by one or more Wholly Owned Subsidiaries.
Section 1.2. Other Definitions.
Term Defined in Section
------------------
"Bankruptcy Law" 6.01
"Change of Control" 4.14
"Custodian" 6.01
"Event of Default" 6.01
"Funding Guarantor" 11.05
"Global Security" 2.01(a)
"Guarantor Blockage Period" 12.02(a)
"Guarantor Payment Blockage Notice" 12.02(a)
"144A Global Security" 2.01(a)
"Paying Agent" 2.03
"Payment Blockage Notice" 8.02(a)
"Payment Blockage Period" 8.02(a)
"Physical Security" 2.01(b)
"Registrar" 2.03
"Regulation S Global Security" 2.01(a)
"Required Filing Date" 4.12
"Securities Act Legend" 2.06(f)
"United States Government Obligation" 9.01
Section 1.3. Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or
any other obligor on the Securities.
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All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by
Commission rule and not otherwise defined herein have the meanings assigned to
them therein.
Section 1.4. 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 generally accepted accounting principles in
effect from time to time, and any other reference in this Indenture to
"generally accepted accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in
the plural include the singular;
(5) Section and Article references are to sections and
articles of this Indenture;
(6) provisions apply to successive events and transactions;
and
(7) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
ARTICLE 2.
THE SECURITIES
Section 2.1. Form and Dating.
(a) Global Securities. Securities offered and sold to QIBs in
reliance on Rule 144A shall be issued initially substantially in the form of
Exhibit A hereto in the name of Cede & Co. as nominee of DTC, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. Such
Security shall be referred to herein as the "144A Global Security." Securities
offered and sold in reliance on Regulation S shall be issued initially
substantially in the form of Exhibit A hereto in the name of Cede & Co. as
nominee of DTC, duly executed by the Company and authenticated by the Trustee
as hereinafter provided. Such Security shall be referred to herein as the
"Regulation S Global Security." Unrestricted Global Securities shall be issued
initially in accordance with Sections 2.06(b)(iv), 2.06(c)(ii) and 2.06(e) in
the name of Cede & Co. as nominee of DTC, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The 144A Global Security,
Regulation S Global Security and Unrestricted Global Security are
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collectively referred to herein as the "Global Securities." The aggregate
principal amount of each of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee as
hereinafter provided.
Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Securities from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Securities represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges, redemptions and transfers of interests
therein in accordance with the terms of this Indenture. Any endorsement of a
Global Security to reflect the amount of any increase or decrease in the
principal amount of outstanding Securities represented thereby shall be made by
the Trustee in accordance with instructions given by the Holder thereof as
required by Section 2.06.
Upon the issuance of the Global Security to DTC, DTC shall
credit, on its internal book-entry registration and transfer system, its
Participants' accounts with the respective interests owned by such
Participants. Interests in the Global Securities shall be limited to
Participants, including Euroclear and Cedel, and indirect Participants.
The Participants shall not have any rights either under this
Indenture or under any Global Security with respect to such Global Security
held on their behalf by DTC, and DTC may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such
Global Security for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest on the
Global Securities and for all other purposes. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by DTC or impair, as between DTC and its
Participants, the operation of customary practices of DTC governing the
exercise of the rights of an owner of a beneficial interest in any Global
Security.
The provisions of the "Operating Procedures of the Euroclear
System," "Terms and Conditions Governing Use of Euroclear," the "General Terms
and Conditions of Cedel Bank" and "Customer Handbook" of Cedel, and successors
provisions, shall be applicable to interests in the Regulation S Global
Security that are held by the Participants through Euroclear or Cedel.
(b) Physical Securities. Securities offered and sold to
Institutional Accredited Investors who are not also QIBs shall be issued
substantially in the form of Exhibit A hereto, in certificated form and issued
in the names of the purchasers thereof (or their nominees), duly executed by
the Company and
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authenticated by the Trustee as hereinafter provided. Securities in
certificated form shall be referred to herein as the "Physical Securities."
(c) Securities. The provisions of the form of Securities
contained in Exhibit A hereto are incorporated herein by reference. The
Securities and the Trustee's Certificates of Authentication shall be
substantially in the form of Exhibit A hereto. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall approve the form of the Securities and any notation,
legend or endorsement (including notations relating to the Guarantee) on them.
If required, the Securities shall bear the appropriate legend regarding
original issue discount for federal income tax purposes. Each Security shall be
dated the date of its authentication. The terms and provisions contained in the
Securities shall constitute, and are hereby expressly made, a part of this
Indenture.
Section 2.2. Execution and Authentication.
Two Officers of the Company shall sign the Securities for the
Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer
holds that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless.
A Security shall not be valid until an authorized officer of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Securities for
original issue in the aggregate principal amount of up to $150,000,000 in one
or more series, (ii) Private Exchange Securities from time to time only in
exchange for a like principal amount of Initial Global Securities and (iii)
Unrestricted Securities from time to time only (x) in exchange for a like
principal amount of Initial Securities or (y) in an aggregate principal amount
of not more than the excess of $150,000,000 over the sum of the aggregate
principal amount of (A) Initial Securities then outstanding, (B) Private
Exchange Securities then outstanding and (C) Unrestricted Securities issued in
accordance with clause (iii)(x), in each case upon a written order signed by an
Officer of the Company. The order shall specify the amount of Securities to be
authenticated and the date on which the original issue of Securities is to be
authenticated. The order shall also provide instructions concerning
registration, amounts for each Holder and delivery. The aggregate principal
amount of Securities outstanding at any time may not exceed $150,000,000 except
as provided in Section 2.07. The Securities shall be issued only in registered
form,
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without coupons and only in denominations of $1,000 and any integral multiple
thereof.
Section 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Securities may be presented for
payment ("Paying Agent"). 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.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent and shall, if required,
incorporate the provisions of the TIA. The Company shall notify the Trustee in
writing of the name and address of any 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 in accordance with the provisions of
Section 7.07.
The Company initially appoints the Trustee as Registrar and
Paying Agent. The Company shall give written notice to the Trustee in the
event that the Company decides to act as Registrar. None of the Company, its
Subsidiaries or any of their Affiliates may act as Paying Agent.
Section 2.4. Paying Agent To Hold Money in Trust.
The Company shall require each Paying Agent to agree in
writing to hold in trust for the benefit of Securityholders or the Trustee all
money held by the Paying Agent for the payment of principal of or interest on
the Securities (whether such money has been paid to it by the Company or any
other obligor on the Securities), and the Company and the Paying Agent shall
each notify the Trustee in writing of any default by the Company (or any other
obligor on the Securities) in making any such payment. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon making such payment the Paying Agent
shall have no further liability for the money delivered to the Trustee.
Section 2.5. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Securityholders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at
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least five 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
Securityholders.
Section 2.6. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. Transfer of
the Global Securities shall be by delivery. Global Securities will be exchanged
by the Company for Physical Securities only (i) if DTC notifies the Company
that it is unwilling or unable to continue to act as depositary with respect to
the Global Securities or ceases to be a clearing agency registered under the
Exchange Act and, in either case, a successor depositary registered as a
clearing agency under the Exchange Act is not appointed by the Company within
120 days, (ii) at any time if the Company in its sole discretion determines
that the Global Securities (in whole but not in part) should be exchanged for
Physical Securities or (iii) if the owner of an interest in the Global
Securities requests such Physical Securities, following an Event of Default
under the Indenture, in a writing delivered through DTC to the Trustee.
Upon the occurrence of any of the events specified in the
previous paragraph, Physical Securities shall be issued in such names as DTC
shall instruct the Trustee in writing and the Trustee shall cause the aggregate
principal amount of the applicable Global Security to be reduced accordingly
and direct DTC to make a corresponding reduction in its book-entry system. The
Company shall execute and the Trustee shall authenticate and make available for
delivery to the Person designated in the instructions a Physical Security in
the appropriate principal amount. The Trustee shall make available for delivery
such Physical Securities to the Persons in whose names such Securities are so
registered. Physical Securities issued in exchange for an Initial Global
Security pursuant to this Section 2.06(a) shall bear the Securities Act Legend
and shall be subject to all restrictions on transfer contained therein. Global
Securities may also be exchanged or replaced, in whole or in part, as provided
in Sections 2.07 and 2.10. Every Security authenticated and made available for
delivery in exchange for, or in lieu of, a Global Security or any portion
thereof, pursuant to Section 2.07 or 2.10, shall be authenticated and made
available for delivery in the form of, and shall be, a Global Security. A
Global Security may not be exchanged for another Security other than as
provided in this Section 2.06(a).
(b) Transfer and Exchange of Interests in Global Securities.
The transfer and exchange of interests in Global Securities shall be effected
through DTC, in accordance with this Indenture and the procedures of DTC
therefor. Interests in Initial Global Securities shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. The Trustee shall have no
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obligation to ascertain DTC's compliance with any such restrictions on
transfer. Transfers of interests in Global Securities shall also require
compliance with subparagraph (i) below, as well as one or more of the other
following subparagraphs as applicable:
(i) All Transfers and Exchanges of Interests in Global Securities. In
connection with all transfers and exchanges of interests in Global Securities
(other than transfers of interests in a Global Security to Persons who take
delivery thereof in the form of an interest in the same Global Security), the
transferor of such interest must deliver to the Registrar (1) instructions
given in accordance with the Applicable Procedures from a Participant or an
indirect Participant directing DTC to credit or cause to be credited an
interest in the specified Global Security in an amount equal to the interest to
be transferred or exchanged, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the Participant account
to be credited with such increase and (3) instructions given by the Holder of
the Global Security to effect the transfer referred to in (1) and (2) above.
(ii) Transfer of Interests in the Same Initial Global
Security. Interests in any Initial Global Security may be transferred to
Persons who take delivery thereof in the form of an interest in the same
Initial Global Security in accordance with the transfer restrictions set forth
in Section 2.06(f) hereof.
(iii) Transfer of Interests to Another Initial Global
Security. Interests in any Initial Global Security may be transferred to
Persons who take delivery thereof in the form of an interest in another
Initial Global Security if the Registrar receives the following:
(A) if the transferee will take delivery in the
form of an interest in the 144A Global Security, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item 1 thereof; or
(B) if the transferee will take delivery in the
form of an interest in the Regulation S Global Security,
then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item 2
thereof.
(iv) Transfer and Exchange of Interests in Initial
Global Security for Interests in an Unrestricted Global Security. Interests in
any Initial Global Security may be exchanged by the holder thereof for an
interest in the Unrestricted Global Security or transferred to a Person who
takes delivery thereof in the form of an interest in the Unrestricted Global
Security if:
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(A) such exchange or transfer is effected pursuant
to the Exchange Registration Statement in accordance with
the Registration Rights Agreement;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement; or
(C) the Registrar receives the following:
(1) if the holder of such an interest in
an Initial Global Security proposes to exchange it
for an interest in the Unrestricted Global
Security, a certificate from such Holder in the
form of Exhibit C hereto, including the
certifications in item 1(a) thereof;
(2) if the holder of such an interest in an
Initial Global Security proposes to transfer it to a
Person who shall take delivery thereof in the form
of an interest in an Unrestricted Global Security, a
certificate in the form of Exhibit B hereto,
including the certification in item 4 thereof; and
(3) in each such case set forth in this
paragraph (C), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in Section 2.06(f)
hereof are not required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a time when
an Unrestricted Global Security has not yet been issued, the Company shall
issue and, upon receipt of an authentication order in accordance with Section
2.02, the Trustee shall authenticate one or more Unrestricted Global Securities
in an aggregate principal amount equal to the principal amount of interests in
the Initial Global Security transferred pursuant to paragraph (B) above.
(v) Notation by the Trustee of Transfer of Interests Among
Global Securities. Upon satisfaction of the requirements for transfer of
interests in Global Securities pursuant to clauses (iii) or (iv) above, the
Trustee, as Registrar, shall reduce or cause to be reduced the aggregate
principal amount of the relevant Global Security from which the interests are
being transferred, and increase or cause to be increased the aggregate
principal amount of the Global Security to which the interests are being
transferred, in each case, by the principal amount so transferred and shall
direct DTC to make corresponding adjustments in its book-entry system. No
transfer of interests
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of a Global Security shall be effected until, and any transferee pursuant
thereto shall succeed to the rights of a holder of such interests only when,
the Registrar has made appropriate adjustments to the applicable Global
Security in accordance with this paragraph.
(c) Transfer or Exchange of Physical Securities for Interests in a
Global Security.
(i) If any Holder of Physical Securities required to contain the
Securities Act Legend proposes to exchange such Securities for an interest in a
Global Security or to transfer such Physical Securities to a Person who takes
delivery thereof in the form of an interest in a Global Security, then, upon
receipt by the Registrar of the following documentation (all of which may be
submitted by facsimile):
(A) if the Holder of such Physical Registered Securities
proposes to exchange such Securities for an interest in an Initial
Global Security, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item 2 thereof;
(B) if such Physical Securities are being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item 1 thereof; or
(C) if such Physical Securities are being transferred to a
Non-U.S. Person (as defined in Regulation S) in an offshore
transaction in accordance with Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item 2 thereof,
the Trustee shall cancel the Physical Securities, increase or cause to be
increased the aggregate principal amount of, in the case of clause (B) above,
the 144A Global Security, in the case of clause (C) above, the Regulation S
Global Security, and direct DTC to make a corresponding increase in its
book-entry system.
(ii) A Holder of Physical Securities required to contain the
Securities Act Legend may exchange such Securities for an interest in the
Unrestricted Global Security or transfer such Restricted Physical Securities to
a Person who takes delivery thereof in the form of an interest in the
Unrestricted Global Security only:
(A) if such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
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(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) upon receipt by the Registrar of the following
documentation (all of which may be submitted by facsimile):
(1) if the Holder of such Physical Securities
proposes to exchange such Securities for an interest in the
Unrestricted Global Security, a certificate from such Holder
in the form of Exhibit C hereto, including the
certifications in item 1(b) thereof;
(2) if the Holder of such Registered Securities
proposes to transfer such Securities to a Person who shall
take delivery thereof in the form of an interest in the
Unrestricted Global Security, a certificate in the form of
Exhibit B hereto, including the certifications in item 4
thereof; and
(3) in each such case set forth in this paragraph
(C), an Opinion of Counsel in form reasonably acceptable to
the Company, to the effect that such exchange or transfer is
in compliance with the Securities Act and that the
restrictions on transfer contained herein and in Section
2.06(f) hereof are not required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B)
above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02, the Trustee
shall authenticate one or more Unrestricted Global Securities in an
aggregate principal amount equal to the principal amount of Physical
Securities transferred pursuant to paragraph (B) above.
(d) Transfer and Exchange of Physical Securities.
(i) Transfer of a Physical Security to Another Physical Security.
Following the occurrence of one or more of the events specified in Section
2.06(a), a Physical Security may be transferred to Persons who take delivery
thereof in the form of another Physical Security if the Registrar receives the
following:
(A) if the transfer is being effected pursuant to and in
accordance with Rule 144A, then the transferor must deliver a
certificate in the form of Exhibit B
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hereto, including the certifications in item 3(a) thereof; or
(B) if the transfer is being effected pursuant to and in
accordance with Regulation S, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item 3(b) thereof.
(ii) Transfer and Exchange of Restricted Physical Securities for
Unrestricted Physical Securities. Following the occurrence of one or more of
the events specified in Section 2.06(a), a Restricted Physical Security may be
exchanged by the Holder thereof for an Unrestricted Physical Security or
transferred to a Person who takes delivery thereof in the form of an
Unrestricted Physical Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(C) the Registrar receives a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item
1(c) thereof and an Opinion of Counsel in form reasonably acceptable
to the Company, to the effect that such exchange or transfer is in
compliance with the Securities Act and, that the restrictions on
transfer contained herein and in Section 2.06(f) hereof are not
required in order to maintain compliance with the Securities Act.
(iii) Exchange of Physical Securities. When Physical Securities are
presented by a Holder to the Registrar with a request to register the exchange
of such Physical Securities for an equal principal amount of Physical
Securities of other authorized denominations, the Registrar shall make the
exchange as requested only if the Physical Securities are endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney duly authorized in
writing and shall be issued only in the name of such Holder or its nominee. The
Physical Securities issued in exchange for Physical Securities shall bear the
Securities Act Legend and shall be subject to all restrictions on transfer
contained herein in each case to the same extent as the Physical Securities so
exchanged.
(iv) Return of Physical Securities. In the event of a transfer
pursuant to clauses (i) or (ii) above and the Holder thereof has delivered
certificates representing an aggregate principal amount of Securities in excess
of that to be
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transferred, the Company shall execute and the Trustee shall authenticate and
make available for delivery to the Holder of such Security, without service
charge, a new Physical Security or Securities of any authorized denomination
requested by the Holder, in an aggregate principal amount equal to the portion
of the Security not so transferred.
(e) Exchange Offer. Upon the occurrence of the Exchange Offer
(as defined in the Registration Rights Agreement) in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02, the Trustee shall
authenticate one or more Unrestricted Global Securities in an aggregate
principal amount equal to the principal amount of the interests in the Initial
Global Securities tendered for acceptance (and not withdrawn) by persons
participating therein. Concurrently with the issuance of such Securities, the
Trustee shall cause the aggregate principal amount of the applicable Initial
Global Securities to be reduced accordingly and direct DTC to make a
corresponding reduction in its book-entry system. The Trustee shall cancel any
Restricted Physical Certificates in accordance with Section 2.11 hereof.
In the case that one or more of the events specified in
Section 2.06(a) have occurred, upon the occurrence of such Exchange Offer, the
Company shall issue and, upon receipt of an authentication order in accordance
with Section 2.02, the Trustee shall authenticate Unrestricted Physical
Securities in an aggregate principal amount equal to the principal amount of
the Restricted Physical Securities tendered for acceptance by persons
participating therein.
(f) Legends. Each Initial Global Security and each Restricted
Physical Security shall bear the legend (the "Securities Act Legend") in
substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE REOFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
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(b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT OR (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(g) Global Security Legend. Each Global Security shall bear
a legend in substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO A NOMINEE OF DTC, OR BY ANY SUCH NOMINEE OF DTC, OR BY DTC TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC,
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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 CEDE & CO. 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 SECTION 2.06 OF THE INDENTURE."
(h) Cancellation and/or Adjustment of Global Securities. At
such time as all interests in the Global Securities have been exchanged for
Physical Securities, all Global Securities shall be returned to or retained and
canceled by the Trustee in accordance with Section 2.11 hereof. At any time
prior to such cancellation, if any interest in a Global Security is exchanged
for an interest in another Global Security or for Physical Securities, the
principal amount of Securities represented by such Global Security shall be
reduced accordingly and an endorsement shall be made on such Global Security,
by the Trustee to reflect such reduction.
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(i) General Provisions Relating to All Transfers and
Exchanges.
(A) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global
Securities and Physical Securities upon a written order signed by an
Officer of the Company or at the Registrar's request.
(B) 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 stamp or transfer tax or
similar governmental charge payable in connection therewith (other
than any such stamp or transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.10, 3.06,
4.05, 4.14 and 10.05 hereof).
(C) All Global Securities and Physical Securities issued
upon any registration of transfer or exchange of Global Securities or
Physical Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Securities or Physical Securities
surrendered upon such registration of transfer or exchange.
(D) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Securities during a period
beginning at the opening of 15 Business Days before the day of any
mailing of notice of redemption of Securities under Section 3.02 and
ending at the close of business on the day of such mailing, (B) to
register the transfer of or to exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part or (C) to register the transfer of or
to exchange a Security between a record date and the next succeeding
Interest Payment Date.
(E) Prior to due presentment for the registration of a
transfer of any Security, the Trustee, any Agent and the Company may
deem and treat the Person in whose name any Security is registered as
the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Securities and for all
other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
(F) 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
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transfers of any interest in any Security (including any transfers
between or among Participants or beneficial owners of interests in
any Global Security) or Physical Security 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 2.7. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if
the Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements are met. The Holder shall
provide an indemnity bond in an amount sufficient in the judgment of the
Company and the Trustee to protect the Company, the Trustee or any Agent from
any loss which any of them may suffer if a Security is replaced may be required
by the Trustee or the Company. The Company and the Trustee each may charge such
Holder for its expenses in replacing such Security.
Every replacement Security is an additional obligation of the
Company.
Section 2.8. Outstanding Securities.
Securities outstanding at any time are all Securities that
have been authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Security does not cease to be outstanding because the Company
or one of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a redemption date or Maturity
Date money sufficient to pay the principal of, and interest on Securities
payable on that date, then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
Section 2.9. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company, any Subsidiary or any of their respective
Affiliates shall be disregarded, except that for the purposes of determining
whether
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the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities that the Trustee actually knows are so owned shall
be so disregarded.
The Trustee may require an Officers' Certificate listing
securities owned by the Company, any Subsidiary or any of their respective
Affiliates.
Section 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges as definitive Securities.
Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee and no one else shall cancel all Securities surrendered for
transfer, exchange, payment or cancellation. The Company may not issue new
Securities to replace, reissue or resell Securities which the Company has
redeemed, paid, purchased on the open market or otherwise, or otherwise
acquired or have been delivered to the Trustee for cancellation. The Trustee
(subject to the record-retention requirements of the Exchange Act) may, but
shall not be required to, destroy canceled Securities.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the
Securities, it shall pay the defaulted interest, plus any interest payable on
the defaulted interest pursuant to Section 4.01 hereof, to the persons who are
Securityholders on a subsequent special record date, and such term, as used in
this Section 2.12 with respect to the payment of any defaulted interest, shall
mean the fifteenth day next preceding the date fixed by the Company for the
payment of defaulted interest, whether or not such day is a Business Day. At
least 15 days before such special record date, the Company shall mail to each
Securityholder and to the Trustee a notice that states such special record
date, the payment date and the amount of defaulted interest to be paid.
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Section 2.13. CUSIP or CINS Number.
The Company in issuing the Securities may use a "CUSIP" or
"CINS" number, and if so, such CUSIP or CINS number shall be included in
notices of redemption or exchange as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to
the correctness or accuracy of the CUSIP or CINS number printed in the notice
or on the Securities, and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company will promptly
notify the Trustee of any change in the CUSIP or CINS number.
Section 2.14. Payments of Interest.
(a) The Holder of a Physical Security at the close of
business on the regular record date with respect to any Interest Payment Date
shall be entitled to receive the interest payable on such Interest Payment Date
notwithstanding any transfer or exchange of such Physical Security subsequent
to the regular record date and prior to such Interest Payment Date, except if
and to the extent the Company shall default in the payment of the interest due
on such Interest Payment Date, in which case such defaulted interest shall be
paid in accordance with Section 2.12; and in the event of an exchange of a
Physical Security for a beneficial interest in any Global Security subsequent
to a regular record date or any special record date and prior to or on the
related Interest Payment Date or other payment date under Section 2.12, any
payment of the interest payable on such payment date with respect to any such
Physical Security shall be made to the Person in whose name such Physical
Security was registered on such record date. Payments of interest on the Global
Securities will be made on each Interest Payment Date to the Holder of the
Global Security on the record date with respect thereto; provided, however,
that, in the event of an exchange of all or a portion of a Global Security for
a Physical Security subsequent to the regular record date or any special record
date and prior to or on the related Interest Payment Date or other payment date
under Section 2.12, any payment of interest payable on such Interest Payment
Date or other payment date with respect to the Physical Security shall be made
to the Holder of the Global Security as of the applicable record date.
(b) Subject to Section 4.01, interest shall be paid to DTC,
with respect to any Global Security held by DTC, on the applicable Interest
Payment Date in accordance with instructions received from DTC at least five
Business Days before the applicable Interest Payment Date.
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ARTICLE 3.
REDEMPTION
Section 3.1. Notices to Trustee.
If the Company elects to redeem Securities pursuant to
paragraph 5 of the Securities at the applicable redemption price set forth
thereon, it shall notify the Trustee in writing of the redemption date and the
principal amount of Securities to be redeemed.
The Company shall give the notice provided for in this
Section 3.01 at least 30 days before the redemption date (unless a shorter
notice shall be agreed to by the Trustee in writing) but not more than 60 days
before the redemption date, together with an Officers' Certificate stating that
such redemption will comply with the conditions contained herein.
Section 3.2. Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed
pursuant to paragraph 5 thereof, the Trustee shall select the Securities to be
redeemed pro rata or by lot or in such other manner as the Trustee shall deem
appropriate and fair. The Trustee shall make the selection from the Securities
then outstanding, subject to redemption and not previously called for
redemption. The Trustee may select for redemption portions (equal to $1,000 or
any integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption.
Section 3.3. Notice of Redemption.
At least 30 days but not more than 60 days before a
redemption date, the Company shall mail a notice of redemption by first class
mail to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the CUSIP number (subject to Section 2.13);
(4) the name and address of the Paying Agent to
which the Securities are to be surrendered for redemption;
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(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(6) that, unless the Company defaults in making the
redemption payment, interest on Securities called for
redemption ceases to accrue on and after the redemption date
and the only remaining right of the Holders is to receive
payment of the redemption price upon surrender to the Paying
Agent; and
(7) if any Security is being redeemed in part, the
portion of the principal amount of such Security to be
redeemed and that, after the redemption date, upon surrender
of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion thereof will be
issued.
At the Company's request, the Trustee shall give the notice
of redemption on behalf of the Company, in the Company's name and at the
Company's expense.
Section 3.4. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued interest thereon to the redemption date, but
interest installments whose maturity is on or prior to such redemption date
shall be payable to the Holders of record at the close of business on the
relevant record dates referred to in the Securities. The Trustee shall not be
required to (i) issue, authenticate, register the transfer of or exchange any
Security during a period beginning 15 days before the date a notice of
redemption is mailed and ending at the close of business on the date the
redemption notice is mailed, or (ii) register the transfer or exchange of any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
Section 3.5. Deposit of Redemption Price.
On or prior to the redemption date, the Company shall deposit
with the Paying Agent money sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on that date other than
Securities or portions thereof called for redemption on that date which have
been delivered by the Company to the Trustee for cancellation.
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Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Trustee shall authenticate for the Holder a new Security equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
Section 4.1. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities in the manner provided in the Securities. An installment of
principal or interest shall be considered paid on the date due if the Trustee
or Paying Agent holds on that date money designated for and sufficient to pay
the installment in full and is not prohibited from paying such money to the
Holders of the Securities pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
same rate per annum borne by the Securities. The Company shall pay interest on
overdue installments of interest at the same rate per annum borne by the
Securities, to the extent lawful.
Section 4.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the address of the Trustee set forth in Section 13.02.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York, for such purposes.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
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The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
Section 4.3. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into any transaction with any of
their respective Affiliates, including, without limitation, the purchase, sale,
lease or exchange of property, the rendering of any service, or the making of
any guarantee, loan, advance or Investment, unless the terms of such
transaction are at least as favorable as the terms that could be obtained at
such time by the Company or such Restricted Subsidiary, as the case may be, in
a comparable transaction made on an arms'-length basis with a Person that is
not such an Affiliate; provided, however, that (x) if the aggregate
consideration exceeds $1.0 million, the Company shall deliver an Officers'
Certificate to the Trustee stating that a majority of the Disinterested
Directors have determined, in their good faith judgment, that the terms of such
transaction are at least as favorable as the terms that could be obtained at
such time by the Company or such Restricted Subsidiary, as the case may be, in
a comparable transaction made on an arms'-length basis with a Person that is
not such an Affiliate and (y) if the aggregate consideration exceeds $5.0
million the Company shall also deliver to the Trustee, prior to the
consummation of the transaction, the favorable written opinion of a nationally
recognized accounting, appraisal or investment banking firm as to the fairness
of the transaction to the Company or such Restricted Subsidiary, from a
financial point of view; provided, however, that this clause (y) shall not
apply to (I) transactions relating to the assumption by Trace of liabilities of
the Company or any Restricted Subsidiary under extended service contracts (or
Trace's indemnification of the Company or any Restricted Subsidiary for
liabilities thereof) or (II) the writing of extended service contracts by Trace
to customers of the Company or any Restricted Subsidiary. The provisions of
this covenant shall not apply to (i) transactions permitted by Section 4.06,
(ii) reasonable fees and compensation paid to, and indemnity provided on behalf
of, officers, directors and employees of the Company or any Restricted
Subsidiary in the ordinary course of business and on ordinary business terms or
as determined in good faith by the Board of Directors of the Company and (iii)
transactions solely between or among the Company and/or one or more Restricted
Subsidiaries.
Section 4.4. Limitation on Incurrence of Indebtedness.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur any Indebtedness, except:
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(i) Indebtedness of the Company or any Restricted Guarantor, if the
Consolidated Cash Flow Ratio for the four full fiscal quarters for which
quarterly or annual financial statements are available next preceding the
Incurrence of such Indebtedness would be greater than 2.0 to 1.0, and Permitted
Refinancings thereof;
(ii) Indebtedness of the Company Incurred under the Senior Credit
Facility in an aggregate amount not to exceed $100.0 million less any amount of
Indebtedness repaid from the proceeds of Asset Dispositions as provided under
Section 4.05, which repayment results in a permanent reduction of the
commitments under the Senior Credit Facility;
(iii) Indebtedness owed by the Company to any Restricted Guarantor or
Indebtedness owed by a Restricted Subsidiary to the Company or a Restricted
Guarantor; provided, however, upon either (x) the transfer or other disposition
by such Restricted Guarantor or the Company of any Indebtedness so permitted
under this clause (iii) to a Person other than the Company or another
Restricted Guarantor or (y) such Restricted Guarantor's ceasing to be a
Restricted Guarantor, the provisions of this clause (iii) shall no longer be
applicable to such Indebtedness and such Indebtedness shall be deemed to have
been Incurred at the time of any such issuance, sale, transfer or other
disposition, as the case may be;
(iv) Interest Rate Obligations of the Company or any Restricted
Subsidiary relating to Indebtedness of the Company or such Restricted
Subsidiary permitted to be Incurred under this Indenture; provided, however,
that the notional amount of such Interest Rate Obligations does not exceed the
amount of the Indebtedness to which such Interest Rate Obligations relate;
(v) Indebtedness of the Company or any Restricted Subsidiary under
Currency Agreements to the extent relating to (x) Indebtedness of the Company
or any Restricted Subsidiary permitted to be Incurred under this Indenture
and/or (y) obligations to purchase assets, properties or services incurred in
the ordinary course of business of the Company or any Restricted Subsidiary;
provided, however, that such Currency Agreements do not increase the
Indebtedness or other obligations of the Company and the Restricted
Subsidiaries outstanding other than as a result of fluctuations in foreign
currency exchange rates or by reason of fees, indemnities or compensation
payable thereunder;
(vi) Permitted Refinancings of any Indebtedness to the extent
outstanding on the Issue Date;
(vii) Indebtedness of the Company under the Securities (including
Unrestricted Securities), and Permitted Refinancings thereof;
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(viii) Floor Plan Notes;
(ix) Acquired Indebtedness and Permitted Refinancings thereof;
(x) guarantees by the Company or any Restricted Guarantor of
Indebtedness of the Company or any Restricted Subsidiary otherwise permitted
to be Incurred under this Indenture;
(xi) Purchase Money Debt, and Permitted Refinancings thereof, in an
aggregate amount not to exceed $35.0 million at any time outstanding;
(xii) Atlantic Finance Loans; and
(xiii) Indebtedness of the Company or any Restricted Guarantor not
otherwise permitted to be Incurred pursuant to clauses (i) through (xii) above
which, together with any other outstanding Indebtedness Incurred pursuant to
this clause (xiii), does not exceed $20.0 million in the aggregate at any time
outstanding.
Section 4.5. Limitation on Certain Asset Dispositions.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, make one or more Asset Dispositions
unless: (i) the Company or such Restricted Subsidiary, as the case may be,
receives consideration for such Asset Disposition at least equal to the Fair
Market Value of the assets sold or disposed of; and (ii) not less than 80% of
the consideration for the disposition consists of (A) cash or Cash Equivalents
(including any held in escrow); (B) the assumption of Indebtedness (other than
non-recourse Indebtedness or any Subordinated Indebtedness) of the Company or
such Restricted Subsidiary or other obligations relating to such assets
(provided, however, that the Company and the Restricted Subsidiaries are
released from any liability for such Indebtedness); (C) Replacement Assets; or
(D) any combination of the foregoing clauses (A), (B) and (C). All Net
Available Proceeds of an Asset Disposition shall be applied within 360 days of
such Asset Disposition (i) to capital investments in properties or assets that
will be used in a business of the Company and the Restricted Subsidiaries
conducted on the Issue Date or in a business reasonably related thereto and/or
(ii) to the permanent reduction and prepayment of any Senior Debt of the
Company then outstanding (including a permanent reduction of commitments in
respect thereof). Any Net Available Proceeds from any Asset Disposition that
are not applied as provided in the immediately preceding sentence shall be used
not later than the 361st day after such Asset Disposition to make an Offer to
Purchase outstanding Securities at a purchase price in cash equal to 100% of
their principal amount, plus accrued and unpaid
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interest to the Purchase Date. Notwithstanding the foregoing, the Company may
defer making any Offer to Purchase outstanding Securities until there are
aggregate unutilized Net Available Proceeds from Asset Dispositions otherwise
subject to the two immediately preceding sentences equal to or in excess of
$10.0 million (at which time, the entire unutilized Net Available Proceeds
from Asset Dispositions otherwise subject to the two immediately preceding
sentences, and not just the amount in excess of $10.0 million, shall be
applied as required pursuant to this paragraph). Any remaining Net Available
Proceeds following the completion of the required Offer to Purchase may be
used by the Company for any other purpose (subject to the other provisions of
this Indenture) and the amount of Net Available Proceeds then required to be
otherwise applied in accordance with this Section 4.05 shall be reset to zero,
subject to any subsequent Asset Disposition. These provisions will not apply
to a transaction consummated in compliance with Section 5.01.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and
Rule 14e-1 under, the Exchange Act.
Section 4.6. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend, or make any distribution of any kind
or character (whether in cash, property or securities), in respect of any class
of Capital Stock of the Company or any Restricted Subsidiary (excluding any (x)
dividends or distributions payable solely in shares of Qualified Stock or in
options, warrants or other rights to acquire such shares, or (y) in the case of
any Restricted Subsidiary, dividends or distributions payable to the Company or
a Restricted Subsidiary),
(ii) purchase, redeem or otherwise acquire or retire for value any
shares of Capital Stock of the Company or any Restricted Subsidiary, any
options, warrants or rights to purchase or acquire such shares or any
securities convertible or exchangeable into such shares (excluding any such
shares, options, warrants, rights or securities that are owned by the Company
or a Restricted Subsidiary),
(iii) make any Investment (other than a Permitted Investment), or
make any payment on a guarantee of any obligation of any Person other than the
Company or a Restricted Subsidiary, or
(iv) redeem, defease, repurchase, retire or otherwise acquire or
retire for value, prior to any scheduled maturity, repayment or sinking fund
payment, Subordinated Indebtedness
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(each of the transactions described in clauses (i) through (iv) (other than
any exception to any such clause) being a "Restricted Payment") if, at the
time thereof:
(1) a Default shall have occurred and be continuing, or
(2) upon giving effect to such Restricted Payment, the
Company could not Incur at least $1.00 of additional Indebtedness
pursuant to Section 4.04(i), or
(3) upon giving effect to such Restricted Payment, the
aggregate amount of all Restricted Payments (other than any
Restricted Payment described in clause (ii), (iii), (iv), (v), (vi),
(vii) or (viii) of the next paragraph) (including the Fair Market
Value of all Restricted Payments not made in cash or Cash
Equivalents, valued at the time of each such Restricted Payment)
declared or made on or after the Issue Date exceeds the sum of the
following (the "Basket"):
(A) 50% of cumulative Consolidated Net Income of
the Company (or, in the case cumulative Consolidated Net
Income of the Company shall be negative, less 100% of such
deficit) for the period (treated as one accounting period)
from the beginning of the fiscal quarter in which the Issue
Date occurs through the last day of the fiscal quarter for
which financial statements are available; plus
(B) the aggregate net cash proceeds received (other
than from a Subsidiary of the Company) after the Issue Date
from the issuance of, or equity contribution with respect
to, shares of Qualified Stock and warrants, rights or
options to purchase or acquire such shares; plus
(C) the amount by which Indebtedness of the Company
or any Restricted Subsidiary (other than Subordinated
Indebtedness) is reduced on the Company's balance sheet upon
the conversion or exchange (other than by a Subsidiary of
the Company) subsequent to the Issue Date into Qualified
Stock (less the amount of any cash, or the Fair Market Value
of any other property, distributed by the Company or any
Restricted Subsidiary upon such conversion or exchange to
the extent such cash or other property reduces the amount of
such Indebtedness); plus
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(D) the aggregate after-tax net proceeds
(consisting of cash and Cash Equivalents) from the sale or
other disposition of, or any distribution in respect of, any
Investment (other than any such proceeds that the Company
elects to be applied toward the calculation of Net
Investment under clause (vii) or (viii) of the next
paragraph) constituting a Restricted Payment made after the
Issue Date; provided, however, that any gain (or loss) on
such sale or disposition or any such distribution included
in such after-tax net proceeds shall not be included in
determining Consolidated Net Income for purposes of clause
(a) above; provided, further, that amounts included in this
clause (d) shall not exceed the Net Investment by the
Company in the Person (or its Subsidiaries) in respect of
which such Investment was made; plus
(E) $10.0 million.
(b) The foregoing provisions will not prohibit any of the following:
(i) any dividend on any class of Capital Stock of the Company or any
Restricted Subsidiary paid within 60 days after the declaration thereof if, on
the date when the dividend was declared, the Company or such Restricted
Subsidiary, as the case may be, could have paid such dividend in accordance
with the provisions of this Indenture;
(ii) the Refinancing of any Subordinated Indebtedness otherwise
permitted pursuant to Section 4.04(v);
(iii) the exchange or conversion of any Indebtedness of the Company
or any Restricted Subsidiary for or into Qualified Stock;
(iv) any Restricted Payment made with the proceeds of a substantially
concurrent sale (other than to a Subsidiary of the Company) for cash of
Qualified Stock;
(v) any Investment to the extent that the consideration therefor
consists of Qualified Stock;
(vi) required or ratable payments to holders of minority interests in
any Restricted Subsidiary;
(vii) any Investments in Atlantic Finance or any of its Subsidiaries;
provided, however, that the Net Investment in respect of Investments made
pursuant to this clause (vii) shall not exceed $25.0 million in the aggregate
at any time outstanding; and
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(viii) Investments not otherwise permitted pursuant to clauses (i)
through (vii) above; provided, however, that the Net Investment in respect of
Investments made pursuant to this clause (viii) shall not exceed $20.0 million
in the aggregate at any time outstanding;
provided, however, that (I) with respect to each of clauses (iv), (v), (vi),
(vii) and (viii) no Default shall have occurred and be continuing and (II) no
issuance of Qualified Stock pursuant to clause (ii), (iii), (iv), (v), (vi),
(vii) or (viii) shall increase the Basket.
(c) For purposes of this Section 4.06, (i) an "Investment"
shall be deemed to be made at the time any Restricted Subsidiary is designated
as an Unrestricted Subsidiary in an amount (proportionate to the Company's
equity interest in such Restricted Subsidiary) equal to the Fair Market Value
of such Restricted Subsidiary at such time; provided, however, that in the
event that any Subsidiary acquired after the Issue Date is designated an
Unrestricted Subsidiary, the amount of Investment deemed made at such time
shall be equal to the Net Investment of the Company and the Restricted
Subsidiaries in such Restricted Subsidiary at such time; (ii) upon the
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the
Basket shall be increased by the amount (proportionate to the Company's equity
interest in such Unrestricted Subsidiary) equal to the lesser of (x) the Fair
Market Value of such Unrestricted Subsidiary at the time of such redesignation
and (y) the Net Investment of the Company and the Restricted Subsidiaries in
such Unrestricted Subsidiary; provided, however, that in the event that any
Subsidiary acquired after the Issue Date is redesignated a Restricted
Subsidiary, the amount of such increase shall be equal to the Net Investment of
the Company and the Restricted Subsidiaries in such Unrestricted Subsidiary at
such time; and (iii) an "Investment" shall be deemed to be made at the time
that the ownership or voting power of the Company and the Restricted
Subsidiaries in any Restricted Subsidiary is reduced to below majority (but
greater than zero) in an amount equal to the Fair Market Value of such former
Restricted Subsidiary at such time multiplied by the percentage ownership or
voting power (whichever is less) of the Company and the Restricted Subsidiaries
in such former Restricted Subsidiary; provided, however, that in the event that
the ownership or voting power of any Subsidiary acquired after the Issue Date
is so reduced, the amount of Investment deemed made at such time shall be equal
to the Net Investment of the Company and the Restricted Subsidiaries in such
former Restricted Subsidiary at such time. Notwithstanding the foregoing,
Atlantic Finance and its Subsidiaries shall be designated Unrestricted
Subsidiaries as of the Issue Date and such designation shall not be deemed an
Investment.
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Section 4.7. Corporate Existence.
Subject to Article Five, the Company shall do or shall cause
to be done all things necessary to preserve and keep in full force and effect
its corporate existence and the corporate, partnership or other existence of
each of its Subsidiaries in accordance with the respective organizational
documents of each such Subsidiary and the rights (charter and statutory) and
material franchises of the Company and its Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right or franchise,
or the corporate existence of any Subsidiary, if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not, and will not be, adverse in any
material respect to the Holders; provided, further, however, that a
determination of the Board of Directors of the Company shall not be required in
the event of a merger of one or more Wholly Owned Subsidiaries with or into
another Wholly Owned Subsidiary or another Person, if the surviving Person is a
Wholly Owned Subsidiary organized under the laws of the United States or a
State thereof or of the District of Columbia.
Section 4.8. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
of its Subsidiaries or upon the income, profits or property of the Company or
any of its Subsidiaries; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings or where the failure to
effect such payment is not adverse in any material respect to the Holders.
Section 4.9. Notice of Defaults.
Within five days after becoming aware of any Default, if such
Default is then continuing, the Company shall promptly deliver an Officers'
Certificate to the Trustee specifying the details of such Default and the
action which the Company proposes to take with respect thereto.
Section 4.10. Maintenance of Properties.
The Company shall cause all material properties owned by or
leased to it or any of its Subsidiaries and used or useful in the conduct of
its business or the business of any of its Subsidiaries to be maintained and
kept in normal condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all
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as in the judgment of the Company may be necessary, so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section 4.10
shall prevent the Company or any of its Subsidiaries from discontinuing the
use, operation or maintenance of any of such properties, or disposing of any
of them, if such discontinuance or disposal is, in the judgment of the Board
of Directors or of the board of directors of the Subsidiary concerned, or of
an officer (or other agent employed by the Company or of any of its
Subsidiaries) of the Company or such Subsidiary having managerial
responsibility for any such property, desirable in the conduct of the business
of the Company or any of its Subsidiaries, and if such discontinuance or
disposal is not adverse in any material respect to the Holders.
Section 4.11. Compliance Certificate.
The Company shall deliver to the Trustee within 45 days after
the end of each of the first three fiscal quarters of the Company and within 90
days after the close of each fiscal year a certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
stating that a review of the activities of the Company has been made under the
supervision of the signing officers with a view to determining whether a
Default has occurred and whether or not the signers know of any Default by the
Company that occurred during such fiscal quarter or fiscal year. If they do
know of such a Default, the certificate shall describe all such Defaults, their
status and the action the Company is taking or proposes to take with respect
thereto. The first certificate to be delivered by the Company pursuant to this
Section 4.11 shall be for the fiscal quarter ending September 30, 1997.
Section 4.12. Provision of Financial Information.
Whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provision thereto, the Company
shall file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) or any successor provision
thereto if the Company were so required, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required so to file such documents if the
Company were so required. The Company shall also in any event (a) within 15
days of each Required Filing Date (i) transmit by mail to all Holders of
Securities as their names and addresses appear in the Security Register,
without cost to such Holders, and (ii) file with the Trustee, copies of such
annual reports, quarterly reports and other documents which the Company is
required to file with the Commission pursuant to the foregoing sentence, and
(b) if, notwithstanding the preceding sentence, filing such documents by the
Company with the Commission is not permitted under the
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Exchange Act, promptly upon written request supply copies of such documents to
any prospective holder of Securities.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.13. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time 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, which would prohibit or forgive the Company from
paying all or any portion of the principal of and/or interest on the Securities
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;
and (to the extent that it may lawfully do so) the Company hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall
not hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
Section 4.14. Change of Control.
Within 30 days following a Change of Control, the Company
will commence an Offer to Purchase all outstanding Securities at a purchase
price in cash equal to 101% of their principal amount, plus accrued and unpaid
interest to the Purchase Date. Such Offer to Purchase will be consummated not
earlier than 30 days and not later than 60 days after the commencement thereof.
Each Holder shall be entitled to tender all or any portion of the Securities
owned by such Holder pursuant to the Offer to Purchase, subject to the
requirement that any portion of a Security tendered must bear an integral
multiple of $1,000 principal amount.
A "Change of Control" will be deemed to have occurred in the
event that (whether or not otherwise permitted by this Indenture) after the
Issue Date (a) any transaction (including, without limitation, any merger or
consolidation) shall be consummated after which any Person or any Persons
acting together that would constitute a group (for purposes of Section 13(d) of
the Exchange Act, or any successor provision thereto) (a "Group"), together
with any Affiliates, other than Permitted Holders, shall "beneficially own" (as
defined in Rule 13d-3 under the Exchange Act, or any successor provision
thereto) at least (x) 50% of the voting power of the outstanding Voting Stock
of the Company or (y) 40% of the voting power of the Voting Stock of
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the Company, and the Permitted Holders own in the aggregate less than such
Person or Group (in doing the "own less than" comparison in this clause (ii),
the holdings of the Permitted Holders who are members of the new Group shall
not be counted in the voting power of such new Group); (b) (x) the Company or
any Restricted Subsidiary sells, leases or otherwise transfers all or
substantially all of the assets of the Company and the Restricted
Subsidiaries, taken as a whole, to any Person other than a Wholly Owned
Subsidiary, or (y) the Company consolidates with or merges with or into
another Person or any Person consolidates with, or merges with or into, the
Company, in either case under this clause (b), in one transaction or series of
related transactions in which immediately after the consummation thereof
Persons owning a majority of the voting power of the Voting Stock of the
Company immediately prior to such consummation shall cease to own a majority
of the voting power of the Voting Stock of the Company or the surviving or
transferee entity if other than the Company; (c) Continuing Directors cease to
constitute at least a majority of the Board of Directors of the Company; or
(d) the stockholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and
Rule 14e-1 under, the Exchange Act. The Company will not be required to make an
Offer to Purchase upon a Change of Control if a third party makes the Offer to
Purchase in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to an Offer to Purchase
made by the Company and purchases all Securities validly tendered and not
withdrawn under such Offer to Purchase.
Section 4.15. Limitation on Senior Subordinated Indebtedness.
The Company (i) shall not Incur any Indebtedness that by its
terms (or by the terms of the agreement or instrument governing such
Indebtedness) is subordinate in right of payment to any other Indebtedness of
the Company unless such Indebtedness is also by its terms (or by the terms of
the agreement or instrument governing such Indebtedness) made expressly either
(x) pari passu in right of payment with the Securities or (y) subordinate in
right of payment to the Securities in the same manner and at least to the same
extent as the Securities are subordinate to Senior Debt of the Company, or (ii)
shall not permit any Guarantor to Incur any Indebtedness that by its terms (or
by the terms of the agreement or instrument governing such Indebtedness) is
subordinate in right of payment to any other Indebtedness of such Guarantor
unless such Indebtedness is also by its terms (or by the terms of the agreement
governing such Indebtedness) made expressly either (x) pari passu in right of
payment with the Guarantee of such Guarantor or (y) subordinate
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in right of payment to the Guarantee of such Guarantor in the same manner and
at least to the same extent as the Guarantee of such Guarantor is subordinate
to Senior Debt of such Guarantor.
Section 4.16. Limitation on Restrictions Affecting Restricted
Subsidiaries
The Company shall not, and shall not permit any Restricted
Subsidiary (other than a Restricted Guarantor) to, directly or indirectly,
create or otherwise cause or suffer to exist any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to (i) pay dividends or
make any other distributions in respect of its Capital Stock or pay any
Indebtedness or other obligation owed to the Company or any Restricted
Subsidiary, (ii) make loans or advances to, or guarantee any Indebtedness of,
the Company or any Restricted Subsidiary or (iii) transfer any of its property
or assets to the Company or any Restricted Subsidiary, except for (a) any
encumbrance or restriction existing under or by reason of any agreement in
effect on the Issue Date (including the Senior Credit Facility) as any such
agreement is in effect on such date or as such agreement is amended thereafter
but only if such encumbrance or restriction is no more restrictive than in the
agreement being amended, (b) any encumbrance or restriction under any agreement
of or relating to such Restricted Subsidiary prior to the date on which such
Restricted Subsidiary was acquired by the Company and outstanding on such date
and not Incurred in anticipation or contemplation of becoming a Restricted
Subsidiary and provided such encumbrance or restriction shall not apply to any
assets of the Company or any Restricted Subsidiary other than the Restricted
Subsidiary so acquired or its assets, (c) customary provisions contained in an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of a Restricted Subsidiary;
provided, however, that such encumbrance or restriction is applicable only to
such Restricted Subsidiary or assets, (d) any encumbrance or restriction
existing under or by reason of applicable law, (e) customary provisions
restricting subletting or assignment of any lease governing any leasehold
interest of any Restricted Subsidiary, (f) covenants in franchise agreements
with car manufacturers customary for franchise agreements in the automobile
retailing industry, (g) covenants in purchase money obligations for property
restricting transfer of such property, (h) covenants in security agreements
securing Indebtedness of a Restricted Subsidiary (to the extent that such Liens
were otherwise incurred in accordance with Section 4.17) that restrict the
transfer of property subject to such agreements and (i) customary covenants in
Floor Plan Notes.
Section 4.17. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, incur or suffer to exist any Lien on or with respect to any
property or assets of the Company or any
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Restricted Subsidiary owned on the Issue Date or thereafter acquired or on the
income or profits thereof to secure Indebtedness, without making, or causing
such Restricted Subsidiary to make, effective provision for securing the
Securities or the Guarantee of such Restricted Subsidiary (and, if the Company
shall so determine, any other Indebtedness of the Company or such Restricted
Subsidiary, including Subordinated Indebtedness; provided, however, that Liens
securing the Securities and any Indebtedness pari passu with the Securities
are senior to such Liens securing such Subordinated Indebtedness) equally and
ratably with such Indebtedness or, in the event such Indebtedness is
subordinate in right of payment to the Securities or the Guarantee, prior to
such Indebtedness, as to such property or assets for so long as such
Indebtedness shall be so secured.
The foregoing restrictions shall not apply to (i) Liens
existing on the Issue Date securing Indebtedness existing on the Issue Date;
(ii) Liens securing Senior Debt (including Liens securing Floor Plan Notes and
Indebtedness under the Senior Credit Facility) and any guarantees thereof to
the extent that the Indebtedness secured thereby is permitted to be incurred
pursuant to Section 4.04; (iii) Liens securing only the Securities and the
Guarantees, if any; (iv) Liens in favor of the Company or a Guarantor, if any;
(v) Liens to secure Indebtedness Incurred for the purpose of financing all or
any part of the purchase price or the cost of construction or improvement of
the property (or any other capital expenditure financing) subject to such
Liens; provided, however, that (a) the aggregate principal amount of any
Indebtedness secured by such a Lien does not exceed 100% of such purchase price
or cost, (b) such Lien does not extend to or cover any other property other
than such item of property and any improvements on such item, (c) the
Indebtedness secured by such Lien is Incurred by the Company within 180 days of
the acquisition, construction or improvement of such property and (d) the
Incurrence of such Indebtedness is permitted pursuant to Section 4.04; (vi)
Liens on property existing immediately prior to the time of acquisition thereof
(and not created in anticipation or contemplation of the financing of such
acquisition); (vii) Liens on property of a Person existing at the time such
Person is acquired or merged with or into or consolidated with the Company or
any such Restricted Subsidiary (and not created in anticipation or
contemplation thereof); (viii) Liens to secure Indebtedness Incurred to
Refinance, in whole or in part, any Indebtedness secured by Liens referred to
in the foregoing clauses (i)-(vii) so long as such Liens do not extend to any
property other than the property securing the Indebtedness being Refinanced and
the principal amount of Indebtedness so secured is not increased except for the
amount of any premium required to be paid in connection with such Refinancing
pursuant to the terms of the Indebtedness Refinanced or the amount of any
premium reasonably determined by the Company as necessary to accomplish such
Refinancing by means of a tender offer, exchange offer or privately negotiated
repurchase, plus the expenses of the issuer of such Indebtedness reasonably
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incurred in connection with such Refinancing; and (viii) Liens in favor of the
Trustee as provided for in this Indenture on money or property held or
collected by the Trustee in its capacity as Trustee.
Section 4.18. Subsidiary Guarantees.
The Company shall not permit any Subsidiary to become an
obligor (including as guarantor) under, or in respect of, the Senior Credit
Facility without causing such Subsidiary to become a Guarantor. Any such
Subsidiary shall (a) execute and deliver a supplemental indenture in form
reasonably satisfactory to the Trustee pursuant to which such Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Securities
and this Indenture on the terms set forth in Articles Eleven and Twelve and (b)
deliver to the Trustee an Opinion of Counsel that such supplemental indenture
has been duly authorized, executed and delivered by such Subsidiary and
constitutes a valid and legally binding and enforceable obligation of such
Subsidiary (subject, in the case of enforceability, to customary bankruptcy,
insolvency, fraudulent conveyance and similar exceptions).
Any Subsidiary of the Company that ceases to be an obligor
(including as guarantor) under, or in respect of, the Senior Credit Facility
shall be released from its Guarantee upon delivery of an Officers' Certificate
to the Trustee certifying to such effect.
The Company may, at its option, cause any of its Subsidiaries
to be a Guarantor.
ARTICLE 5.
MERGERS; SUCCESSOR CORPORATION
Section 5.1. Restriction on Mergers, Consolidations and
Certain Sales of Assets
The Company will not consolidate or merge with or into any
Person, or sell, assign, lease, convey or otherwise dispose of (or cause or
permit any Restricted Subsidiary to sell, assign, lease, convey or otherwise
dispose of (however effected, including, without limitation, by merger or
consolidation)) all or substantially all of the Company's assets (determined on
a consolidated basis for the Company and the Restricted Subsidiaries), whether
as an entirety or substantially an entirety in one transaction or a series of
related transactions, including by way of liquidation or dissolution, to any
Person unless, in each such case: (i) the entity formed by or surviving any
such consolidation or merger (if other than the Company or such Restricted
Subsidiary, as the case may be), or to which such sale, assignment, lease,
conveyance or other disposition shall have been made (the "Surviving Entity"),
is a corporation organized and existing under the laws of the United States,
any state thereof or the District of Columbia; (ii) the Surviving
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Entity assumes by supplemental indenture all of the obligations of the Company
on the Securities and under the Indenture and the Registration Rights
Agreement (upon which assumption the Company will be discharged of any and all
obligations on the Securities and under this Indenture and the Registration
Rights Agreement); (iii) immediately after giving effect to such transaction
and the use of any net proceeds therefrom on a pro forma basis, the Company or
the Surviving Entity, as the case may be, (A) shall have a Consolidated Net
Worth equal to or greater than the Consolidated Net Worth of the Company
immediately prior to such transaction and (B) could Incur at least $1.00 of
additional Indebtedness pursuant to Section 4.04(i); (iv) immediately before
and after giving effect to such transaction and treating any Indebtedness that
becomes an obligation of the Company or any Restricted Subsidiary as a result
of such transaction as having been Incurred by the Company or such Restricted
Subsidiary, as the case may be, at the time of the transaction, no Default
shall have occurred and be continuing; and (v) if, as a result of any such
transaction, property or assets of the Company or a Restricted Subsidiary
would become subject to a Lien not excepted from Section 4.17, the Company,
Restricted Subsidiary or the Surviving Entity, as the case may be, shall have
secured the Securities or its Guarantee, as applicable, as required by Section
4.17. The provisions of this Section 5.01 shall not apply to any merger of a
Restricted Subsidiary with or into the Company or a Wholly Owned Subsidiary or
any transaction pursuant to which a Guarantor is to be released in accordance
with the terms of its Guarantee and this Indenture in connection with any
transaction complying with Section 4.05.
Section 5.2. Successor Corporation Substituted.
Upon the execution of a supplemental indenture by the
Surviving Person in form and substance satisfactory to the Trustee (as
evidenced by the Trustee's execution thereof) in accordance with Section 5.01,
the Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of and shall assume all obligations of, the Company or
such Subsidiary, as the case may be, under this Indenture, the Registration
Rights Agreement and the Securities or the Guarantees, as the case may be, with
the same effect as if such Surviving Person had been named as the Company or
such Subsidiary, as the case may be, herein and therein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture, the Registration Rights
Agreement and the Securities or the Guarantees, as the case may be.
ARTICLE 6.
DEFAULT AND REMEDIES
Section 6.1. Events of Default.
An "Event of Default" occurs if:
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(a) the Company fails to pay principal of any Security when
due (whether or not prohibited by Article Eight or Twelve);
(b) the Company fails to pay any interest on any Security
when due, continued for 30 days (whether or not prohibited by Article Eight or
Twelve);
(c) the Company defaults in the payment of principal of and
interest on Securities required to be purchased pursuant to an Offer to
Purchase under Sections 4.05 or 4.14 hereof when due and payable (whether or
not prohibited by Article Eight or Twelve);
(d) the Company fails to perform or comply with any of the
provisions of Section 5.01;
(e) the Company fails to perform any other covenant or
agreement of the Company under the Indenture or the Securities continued for
60 days after written notice to the Company by the Trustee or holders of at
least 25% in aggregate principal amount of outstanding Securities;
(f) the Company defaults under the terms of one or more
instruments evidencing or securing Indebtedness of the Company or any
Restricted Subsidiary having an outstanding principal amount of $10.0 million
or more individually or in the aggregate that has resulted in the acceleration
of the payment of such Indebtedness or failure to pay principal when due at the
stated final maturity of any such Indebtedness;
(g) the rendering of a final judgment or judgments (not
subject to appeal) against the Company or any Restricted Subsidiary in an
amount of $10.0 million or more which remains undischarged or unstayed for a
period of 60 days after the date on which the right to appeal has expired;
(h) the Company or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding,
(2) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(3) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(4) makes a general assignment for the benefit of
its creditors;
(i) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
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(l) is for relief against the Company or any
Restricted Subsidiary in an involuntary case or proceeding,
(2) appoints a Custodian of the Company or any
Restricted Subsidiary or for all or substantially all of its
property, or
(3) orders the liquidation of the Company or any
Restricted Subsidiary, and in each case the order or decree
remains unstayed and in effect for 60 days; provided,
however, that if the entry of such order or decree is
appealed and dismissed on appeal then the Event of Default
hereunder by reason of the entry of such order or decree
shall be deemed to have been cured; or
(j) any Guarantee, ceases to be in full force and effect or
is declared null and void and unenforceable or is found to be invalid or any
Guarantor denies its liability under its Guarantee (other than by reason of a
release of such Guarantor from its Guarantee in accordance with the terms of
this Indenture and such Guarantee).
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal, state or foreign law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law.
Section 6.2. Acceleration.
If an Event of Default (other than an Event of Default with
respect to the Company specified in Section 6.01(h) or (i)) shall occur and be
continuing, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the outstanding Securities may accelerate the maturity of
all Securities; provided, however, that after such acceleration, but before a
judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of outstanding Securities may rescind and annul such
acceleration if all Defaults, other than the non-payment of accelerated
principal, have been cured or waived as provided in this Indenture; provided,
however, that so long as the Senior Credit Facility shall be in full force and
effect, if an Event of Default shall have occurred and be continuing (other
than an Event of Default with respect to the Company specified in Section
6.01(h) or (i)), the Securities shall not become due and payable until the
earlier to occur of (x) five Business Days following delivery of a written
notice of such acceleration of the Securities to the agent under the Senior
Credit Facility and (y) the acceleration of any Indebtedness under the Senior
Credit Facility. If an Event of Default with respect to the Company specified
in Section 6.01(h) or (i) occurs, the outstanding Securities will ipso facto
become
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immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
Section 6.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy maturing 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 Default.
Subject to Sections 2.09, 6.07 and 10.02, prior to the
declaration of acceleration of the Securities, (i) the Holders of not less than
a majority in aggregate principal amount of the outstanding Securities by
written notice to the Trustee may waive an existing Default and its
consequences, except a Default in the payment of principal of or interest on
any Security as specified in Section 6.01(a) or (b), a default arising from
failure to effect an Offer to Purchase required under Section 4.14 or a Default
in respect of any term or provision of this Indenture that may not be amended
or modified without the consent of each Holder affected as provided in Section
10.02 and (ii) the Holders of three-fourths of the aggregate principal amount
of Notes affected thereby, on behalf of all Holders, may waive a default
arising from failure to effect an Offer to Purchase required under Section
4.14. The Company shall deliver to the Trustee an Officers' Certificate stating
that the requisite percentage of Holders have consented to such waiver and
attaching copies of such consents. In case of any such waiver, the Company, the
Trustee and the Holders shall be restored to their former positions and rights
hereunder and under the Securities, respectively. This paragraph of this
Section 6.04 shall be in lieu of ss. 316(a)(1)(B) of the TIA and such ss.
316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture and
the Securities, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture and the Securities, but no such waiver
shall extend to any subsequent or other Default or impair any right consequent
thereon.
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Section 6.5. Control by Majority.
Subject to Section 2.09, the Holders of a majority in
principal amount of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction. In the event the
Trustee takes any action or follows any direction pursuant to this Indenture,
the Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against any loss or expense caused by taking such action or
following such direction. This Section 6.05 shall be in lieu of ss.
316(a)(1)(A) of the TIA, and such ss. 316(a)(1)(A) of the TIA is hereby
expressly excluded from this Indenture and the Securities, as permitted by the
TIA.
Section 6.6. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to
this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice
of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate
principal amount of the outstanding Securities make a
written request to the Trustee to pursue a remedy;
(3) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer
and, if requested, the provision of indemnity; and
(5) during such 60-day period the Holders of a
majority in principal amount of the outstanding Securities
(excluding Affiliates of the Company) do not give the
Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
such other Securityholder.
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Section 6.06 limitations do not apply to a suit instituted by
a Holder of a Note for enforcement of payment of the principal or of interest
on such Security on or after the respective due dates therefor.
Section 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on the
Securities, on or after the respective due dates therefor, 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 in payment of interest or principal
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Securities for the whole amount of
principal and accrued interest remaining unpaid, together with interest overdue
on principal and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per
annum borne by the Securities and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
Section 6.9. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Securities), its creditors or its property and shall
be entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent
and counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
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respect of the claim of any Securityholder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money or property pursuant to
this Article Six, it shall pay out the money or property in the following
order:
First: to the Trustee for amounts due under Section 7.07;
Second: subject to Articles Eight and Twelve, to Holders for
amounts due and unpaid on the Securities for principal and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal and interest,
respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may
fix a record date and payment date for any payment to Securityholders pursuant
to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as 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 and expenses, 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 shall not apply to a suit by the
Trustee, a suit by a Holder or group of Holders of more than 10% in aggregate
principal amount of the outstanding Securities, or to any suit instituted by
any Holder for the enforcement or the payment of the principal or interest on
any Securities on or after the respective due dates therefor.
ARTICLE 7.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If a Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
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(b) Except during the continuance of a Default:
(l) 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 conforming to the requirements of this Indenture; provided,
however, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section 7.01;
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that repayment of
such funds is not assured to it or it does not receive an indemnity
satisfactory to it in its sole discretion against such risk, liability, loss,
fee or expense which might be incurred by it in compliance with such request or
direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may
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agree in writing with the Company. Money or assets held in trust by the
Trustee need not be segregated from other funds or assets except to the extent
required by law.
Section 7.2. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting on any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel of its selection and may require an Officers' Certificate
and an Opinion of Counsel, which shall conform to the provisions of Section
13.05. The Trustee shall not be liable for any action it takes, suffers or
omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through attorneys and agents of its
selection and shall not be responsible for the misconduct or negligence of any
agent or attorney (other than an agent who is an employee of the Trustee)
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 reasonably believes to be authorized
or within its rights or powers conferred upon it by this Indenture.
(e) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
(f) Provided the Trustee acts in good faith, the Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole cost of
the Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
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(g) The Trustee shall not be deemed to have notice of any
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 Securities and this Indenture.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to 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
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any statement of the
Company in this Indenture or any document issued in connection with the sale of
Securities or any statement in the Securities other than the Trustee's
certificate of authentication.
Section 7.5. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of any
Default with respect to the Securities, give the Holders notice of all uncured
Defaults known to it; provided, however, that, except in the case of an Event
of Default or a Default in payment with respect to the Securities or a Default
in complying with Section 5.01, the Trustee shall be protected in withholding
such notice if and so long as the Board of Directors of the Trustee, the
executive committee or a trust committee of directors or responsible officers
of the Trustee in good faith determine that the withholding of such notice is
in the interest of the Holders.
Section 7.6. Reports by Trustee to Holders.
If required by TIA ss313(a), within 60 days after each July 1
beginning with the July 1 following the date of this Indenture, the Trustee
shall mail to each Securityholder a report dated as of such July 1 that
complies with TIA ss313(a). The Trustee also shall comply with TIA ss313(b),
(c) and (d).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the Commission, the Company and each stock
exchange, if any, on which the Securities are listed in accordance with TIA ss.
313(d).
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The Company shall promptly notify the Trustee in writing if
the Securities become listed on any securities exchange or of any delisting
therefrom.
Section 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for its services. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances (including reasonable fees, disbursements and expenses of its
agents and counsel) incurred or made by it in addition to the compensation for
its services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, disbursements and expenses of the
Trustee's agents, accountants, experts and counsel and any taxes or other
expenses incurred by a trust created pursuant to Section 9.01 hereof.
The Company shall indemnify the Trustee or any predecessor
Trustee and their agents for, and hold them harmless against any and all loss,
damage, claims, liability or expense, including taxes (other than franchise
taxes imposed on the Trustee and taxes based upon, measured by or determined by
the income of the Trustee), arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses of enforcing this Indenture against the Company (including Section
7.07) and of defending itself against any claim (whether asserted by any
Securityholder or the Company or any other person) or liability in connection
with the exercise or performance of any of their powers or duties hereunder,
except to the extent that such loss, damage, claim, liability or expense is due
to their own negligence or bad faith. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity. However, the failure by the Trustee to so notify the Company shall
not relieve the Company of its obligations hereunder (unless and only to the
extent that such failure results in the loss or compromise of any rights or
defenses). The Company shall defend the claim and the Trustee shall cooperate
in the defense (and may employ its own counsel) at the Company's expense;
provided, however, that the Company's reimbursement obligation with respect to
counsel employed by the Trustee will be limited to the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made
without its written consent, which consent shall not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee as a result of the violation of this
Indenture by the Trustee.
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To the extent permitted by the Senior Credit Facility, to
secure the Company's payment obligations in this Section 7.07, the Trustee
shall have a Lien prior to the Securities against all money or property held or
collected by the Trustee or any predecessor Trustee, in their capacity as
Trustee, except money or property held in trust to pay principal of or interest
on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(h) or (i) occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the Holders
in a proceeding under any Bankruptcy Law and are intended to constitute
expenses of administration under any Bankruptcy Law. The Company's obligations
under this Section 7.07 and any claim arising hereunder shall survive the
resignation or removal of any Trustee, the discharge of the Company's
obligations pursuant to Article Nine and any rejection or termination under any
Bankruptcy Law.
The provisions of this Section 7.07 shall survive the
termination of this Indenture.
Section 7.8. Replacement of Trustee.
The Trustee may resign at any time by so notifying the
Company in writing. The Holders of a majority in aggregate principal amount of
the outstanding Securities may remove the Trustee by so notifying the Trustee
and the Company in writing and may appoint a successor Trustee with the
Company's consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent under any Bankruptcy Law;
(3) a custodian or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of 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.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property held
by it as Trustee to
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the successor Trustee, subject to the Lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Securityholder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in aggregate principal amount of the
outstanding Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or banking corporation, the resulting, surviving or transferee
corporation or banking corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be
eligible to act as Trustee under TIA ss.ss. 310(a)(1) and 310(a)(5). The
Trustee (or in the case of a corporation included in a bank holding company,
the related bank holding company) shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report of
condition. If the Trustee has or shall acquire any "conflicting interest"
within the meaning of TIA ss. 310(b), the Trustee and the Company shall comply
with the provisions of TIA ss. 310(b); provided, however, that there shall be
excluded from the operation of TIA ss. 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 ss. 310(b)(1) are met. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
hereinbefore specified in this Article Seven.
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Section 7.11. Preferential Collection of Claims Against
Company
The Trustee shall comply with TIAss. 311(a), excluding any
creditor relationship listed in TIAss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIAss. 311(a) to the extent indicated
therein.
ARTICLE 8.
SUBORDINATION OF SECURITIES
Section 8.1. Securities Subordinated to Senior Debt.
The Company covenants and agrees, and the Trustee and each
Holder by acceptance of the Securities likewise covenant and agree, that all
Securities shall be issued subject to the provisions of this Article; and each
person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that all payments of the
principal of and interest on the Securities by the Company shall, to the extent
and in the manner set forth in this Article, be subordinated and junior in
right of payment to the prior payment in full of all Senior Debt of the
Company.
Section 8.2. No Payment on Securities in Certain
Circumstances
(a) No direct or indirect payment by or on behalf of the
Company of principal of or interest on the Securities (other than payments to
Holders from funds held in trust for the benefit of Holders pursuant to Section
9.01), whether pursuant to the terms of the Securities or upon acceleration or
otherwise, will be made if, at the time of such payment, there exists a default
in the payment of all or any portion of the obligations on any Designated
Senior Debt, whether at maturity, on account of mandatory redemption or
prepayment, acceleration or otherwise, and such default shall not have been
cured or waived. In addition, during the continuance of any non-payment default
or non-payment event of default with respect to any Designated Senior Debt
pursuant to which the maturity thereof may be accelerated, and upon receipt by
the Trustee of written notice (a " Payment Blockage Notice") from a holder or
holders of such Designated Senior Debt or the trustee or agent acting on behalf
of such Designated Senior Debt, then, unless and until such default or event of
default has been cured or waived or has ceased to exist or such Designated
Senior Debt has been discharged or repaid in full, or the requisite holders of
such Designated Senior Debt have otherwise agreed in writing, no payment or
distribution will be made by or on behalf of the Company on account of or with
respect to the Securities (except payments to Holders from funds held in trust
for the benefit of Holders pursuant to Section 9.01), during a period (a
"Payment Blockage Period") commencing on the date of receipt of such
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Payment Blockage Notice by the Trustee and ending 179 days thereafter.
Notwithstanding anything herein to the contrary, (x) in no
event will a Payment Blockage Period extend beyond 179 days from the date the
Payment Blockage Notice in respect thereof was given and (y) there must be 180
days in any 365 day period during which no Payment Blockage Period is in
effect. Not more than one Payment Blockage Period may be commenced with respect
to the Securities during any period of 365 consecutive days. No default or
event of default that existed or was continuing on the date of commencement of
any Payment Blockage Period with respect to the Designated Senior Debt
initiating such Payment Blockage Period may be, or be made, the basis for the
commencement of any other Payment Blockage Period by the holder or holders of
such Designated Senior Debt or the trustee or agent acting on behalf of such
Designated Senior Debt, whether or not within a period of 365 consecutive days,
unless such default or event of default has been cured or waived for a period
of not less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by Section 8.02(a), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Designated
Senior Debt or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Designated Senior Debt may
have been issued, as their respective interests may appear, but only to the
extent that, upon notice from the Trustee to the holders of Designated Senior
Debt that such prohibited payment has been made, the holders of the Designated
Senior Debt (or their representative or representatives or a trustee) notify
the Trustee in writing of the amounts then due and owing on the Designated
Senior Debt, if any, and only the amounts specified in such notice to the
Trustee shall be paid to the holders of Designated Senior Debt.
Section 8.3. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities
of the Company of any kind or character (whether in cash, property or
securities) upon any dissolution or winding up or total or partial liquidation
or reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or
to become due with respect to Senior Debt of the Company (including any
interest accruing subsequent to an event of bankruptcy or insolvency, whether
or not allowed or allowable thereunder) shall first be paid in full, or payment
provided for, before the Holders or the Trustee on their behalf shall be
entitled to receive any payment by the Company of the principal of or interest
on the Securities, or any payment to acquire any of the
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Securities for cash, property or securities, or any distribution with respect
to the Securities of any cash, property or securities. Before any payment may
be made by, or on behalf of, the Company of the principal of or interest on
the Securities upon any such dissolution or winding up or liquidation or
reorganization, any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee on their behalf would be
entitled, but for the subordination provisions of this Indenture, shall be
made by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution, directly
to the holders of Senior Debt of the Company (pro rata to such holders on the
basis of the respective amounts of Senior Debt held by such holders) or their
representative(s) or to the trustee(s) under any indenture pursuant to which
any such Senior Debt may have been issued as their respective interests may
appear, to the extent necessary to pay all such Senior Debt in full after
giving effect to any concurrent payment, distribution or provision therefor to
or for the holders of such Senior Debt.
(b) In the event that, notwithstanding the foregoing
provision prohibiting such payment or distribution, any payment or distribution
of assets or securities of the Company of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or any Holder at
a time when such payment or distribution is prohibited by Section 8.03(a) and
before all obligations in respect of Senior Debt are paid in full, or payment
provided for, such payment or distribution shall be received and held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Debt or their respective representative(s), or to the trustee(s) under
any indenture pursuant to which any of such Senior Debt may have been issued,
as their respective interests may appear, for application to the payment of
Senior Debt remaining unpaid until all such Senior Debt has been paid in full
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Debt.
(c) The consolidation of the Company with, or the merger of
the Company with or into, another corporation or the liquidation or dissolution
of the Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided in Article Five shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
Five.
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Section 8.4. Subrogation.
Upon the payment in full of all Senior Debt, or provision for
payment, the Holders shall be subrogated (equally and ratably with all pari
passu Indebtedness) to the rights of the holders of Senior Debt to receive
payments or distributions of cash, property or securities of the Company made
on such Senior Debt until the principal of and interest on the Securities shall
be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders or the Trustee on their behalf would be
entitled except for the provisions of this Article, and no payment over
pursuant to the provisions of this Article to the holders of Senior Debt by
Holders or the Trustee on their behalf shall, as between the Company, its
creditors other than holders of Senior Debt, and the Holders, be deemed to be a
payment by the Company to or on account of the Senior Debt. It is understood
that the provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders, on the one hand, and the
holders of the Senior Debt, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article shall have
been applied, pursuant to the provisions of this Article, to the payment of all
amounts payable under Senior Debt, then and in such case, the Holders shall be
entitled to receive from the holders of such Senior Debt any payments or
distributions received by such holders of Senior Debt in excess of the amount
required to make payment in full, or provision for payment, of such Senior
Debt.
Section 8.5. Obligations of Company Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior Debt,
nor shall anything herein or therein prevent any Holder or the Trustee on their
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of the Senior Debt in respect of cash, property or securities of
the Company received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing
contained in this Article shall restrict the right of the Trustee or the
Holders to take any action to declare the Securities to be due and payable
prior to their stated maturity
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pursuant to Section 6.01 or to pursue any rights or remedies hereunder;
provided, however, that all Senior Debt then due and payable shall first be
paid in full before the Holders or the Trustee are entitled to receive any
direct or indirect payment from the Company of principal of or interest on the
Securities.
Section 8.6. Notice to Trustee.
The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making of any payment
to or by the Trustee in respect of the Securities pursuant to the provisions of
this Article. Failure to give such notice to the Trustee shall not affect the
subordination of the Securities to Senior Debt. The Trustee shall not be
charged with knowledge of the existence of any default or event of default with
respect to any Senior Debt or of any other facts which would prohibit the
making of any payment to or by the Trustee unless and until the Trustee shall
have received notice in writing to that effect signed by an Officer of the
Company, or by a holder of Senior Debt or trustee or agent therefor; and prior
to the receipt of any such written notice, the Trustee shall, subject to
Article Seven, be entitled to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section 8.06 at least three Business Days prior to the date upon which by
the terms of this Indenture any moneys shall become payable for any purpose
(including, without limitation, the payment of the principal of or interest on
any Security), then, regardless of anything herein to the contrary, the Trustee
shall have full power and authority to receive any moneys from the Company and
to apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such prior date. Nothing contained in this Section 8.06 shall limit the right
of the holders of Senior Debt to recover payments as contemplated by Section
8.02 or 8.03. The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself or itself to be a holder of any
Senior Debt (or a trustee on behalf of, or other representative of, such
holder) to establish that such notice has been given by a holder of such Senior
Debt or a trustee or representative on behalf of any such holder.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person
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pending judicial determination as to the right of such Person to receive such
payment.
Section 8.7. Reliance on Judicial Order or Certificate of
Liquidating Agent
Upon any payment or distribution of assets or securities
referred to in this Article, the Trustee and the Holders of the Securities
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt 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.
Section 8.8. Trustee's Relation to Senior Debt.
The Trustee and any Paying Agent shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee or any Paying Agent of any of its rights as such holder.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt (except as provided in Section
8.03(b)). The Trustee shall not be charged with knowledge of the existence of
Senior Debt or of any facts that would prohibit any payment hereunder unless
the Trustee shall have received notice to that effect at the address of the
Trustee set forth in Section 13.02.
Section 8.9. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of
Senior Debt.
No right of any present or future holders of any Senior Debt
to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of
any knowledge thereof which any such holder may have or otherwise
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be charged with. The provisions of this Article are intended to be for the
benefit of, and shall be enforceable directly by, the holders of Senior Debt.
Section 8.10. Securityholders Authorize Trustee To
Effectuate Subordination of Securities
Each Holder of Securities by his acceptance of such
Securities authorizes and expressly directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article, and appoints the Trustee his attorney-in-fact for
such purposes, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the filing of a claim
for the unpaid balance of its or his Securities in the form required in those
proceedings.
Section 8.11. This Article Not to Prevent Events of
Default.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article shall not
be construed as preventing the occurrence of an Event of Default specified in
Section 6.01(a), (b) or (c).
Section 8.12. Trustee's Compensation Not Prejudiced.
Nothing in this Article shall apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
Section 8.13. No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 8.09,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do
any one or more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding or secured; (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (c) release any
Person liable in any manner for the collection of Senior Debt; and (d) exercise
or refrain from exercising any rights against the Company and any other Person.
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Section 8.14. Subordination Provisions Not Applicable to
Money Held in Trust for Securityholders;
Payments May Be Paid Prior to Dissolution
All money and United States Government Obligations deposited
in trust with the Trustee pursuant to and in accordance with Article Nine shall
be for the sole benefit of the Holders and shall not be subject to this Article
Eight.
Nothing contained in this Article or elsewhere in this
Indenture shall prevent (i) the Company, except under the conditions described
in Section 8.02, from making payments of principal of and interest on the
Securities, or from depositing with the Trustee any moneys for such payments or
from effecting a termination of the Company's and the Guarantors' obligations
under the Securities and this Indenture as provided in Article Nine, or (ii)
the application by the Trustee of any moneys deposited with it for the purpose
of making such payments of principal of and interest on the Securities, to the
holders entitled thereto unless at least three Business Days prior to the date
upon which such payment becomes due and payable, the Trustee shall have
received the written notice provided for in Section 8.02(b) or in Section 8.06.
ARTICLE 9.
DISCHARGE OF INDENTURE
Section 9.1. Termination of Company's Obligations.
(a) Discharge. Subject to the provisions of Article Eight,
the Company may terminate its substantive obligations and the substantive
obligations of the Guarantors, if any, in respect of the Securities and the
Guarantees by delivering all outstanding Securities to the Trustee for
cancellation and paying all sums payable by the Company on account of principal
of and interest on all Securities or otherwise.
(b) Covenant Defeasance. In addition to the provisions of
Section 9.01(a), the Company may, provided that no Default has occurred and is
continuing or would arise therefrom (or, with respect to a Default specified in
Section 6.01(h) or (i), any time on or prior to the 91st calendar day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until after such 91st day)) and provided that no default under
any Senior Debt would result therefrom, terminate its substantive obligations
and the substantive obligations of the Guarantors, if any, in respect of the
Securities and the Guarantees (except for the Company's obligation to pay the
principal of and the interest on the Securities and such Guarantors' guarantee
thereof) by (i) depositing with the Trustee, under the terms of an irrevocable
trust agreement, money or direct non-callable obligations of the United States
of America for the payment of which its full faith
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and credit is pledged ("United States Government Obligations") sufficient
(without reinvestment) to pay all remaining indebtedness on the Securities to
maturity or to redemption, (ii) delivering to the Trustee either an Opinion of
Counsel or a ruling directed to the Trustee from the Internal Revenue Service
to the effect that the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and termination of
obligations, (iii) delivering to the Trustee an Opinion of Counsel to the
effect that the Company's exercise of its option under this paragraph will not
result in the Company, the Trustee or the trust created by the Company's
deposit of funds pursuant to this provision becoming or being deemed to be an
"investment company" under the Investment Company Act of 1940, as amended, and
(iv) delivering to the Trustee an Officers' Certificate and an Opinion of
Counsel each stating that there has been compliance with all conditions
precedent provided for herein.
(c) Legal Defeasance. In addition to the provisions of
Section 9.01(a) and (b), the Company may, provided that no Default has occurred
and is continuing or would arise therefrom (or, with respect to a Default
specified in Section 6.01(h) or (i), any time on or prior to the 91st calendar
day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until after such 91st day)) and provided that no
default under any Senior Debt would result therefrom, terminate all of its
substantive obligations and all of the substantive obligations of the
Guarantors, if any, in respect of the Securities and the Guarantees (including
the Company's obligation to pay the principal of and interest on the Securities
and such Guarantors' guarantee thereof) by (i) depositing with the Trustee,
under the terms of an irrevocable trust agreement, money or United States
Government Obligations sufficient (without reinvestment) to pay all remaining
indebtedness on the Securities to maturity or to redemption, (ii) delivering to
the Trustee either a ruling directed to the Trustee from the Internal Revenue
Service to the effect that the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and termination of
obligations or an Opinion of Counsel based upon such a ruling addressed to the
Trustee or a change in the applicable Federal tax law since the date of this
Indenture, to such effect, (iii) delivering to the Trustee an Opinion of
Counsel to the effect that the Company's exercise of its option under this
paragraph will not result in the Company, the Trustee or the trust created by
the Company's deposit of funds pursuant to this provision becoming or being
deemed to be an "investment company" under the Investment Company Act of 1940,
as amended, and (iv) delivering to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that there has been compliance with all
conditions precedent provided for herein.
(d) Notwithstanding the foregoing paragraphs 9.01(b) and (c)
above, the Company's obligations contained in Sections 2.03, 2.05, 2.06, 2.07,
4.02, 7.07, 7.08, 9.03 and 9.04
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shall survive until the Securities are no longer outstanding. In addition,
notwithstanding the foregoing paragraph 9.01(b), in that instance the
Company's obligations contained in Section 4.01 shall also survive until the
Securities are no longer outstanding. Thereafter the Company's obligations in
Section 7.07, 9.03 and 9.04 shall survive. The Company may make an irrevocable
deposit pursuant to this Section 9.01 only if at such time it is not
prohibited from doing so under the subordination provisions of this Indenture
and the Company has delivered to the Trustee and any Paying Agent an Officers'
Certificate to that effect. After such delivery or irrevocable deposit and
delivery of an Officers' Certificate and Opinion of Counsel, the Trustee upon
request of the Company shall acknowledge in writing the discharge of the
Company's and the Guarantors' (if any) obligations under the Securities, the
Guarantees and this Indenture other than those surviving obligations specified
in this paragraph (d).
Section 9.2. Application of Trust Money.
The Trustee shall hold in trust money or United States
Government Obligations deposited with it pursuant to Section 9.01, and shall
apply the deposited money and the money from United States Government
Obligations in accordance with this Indenture solely to the payment of
principal of and interest on the Securities. The Company shall indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
United States Government Obligations deposited pursuant to Section 9.01 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of outstanding
Securities.
Section 9.3. Repayment to Company.
Subject to Sections 7.07 and 9.01, the Trustee shall promptly
pay to the Company upon receipt by the Trustee of the Company's written request
accompanied by an Officers' Certificate any excess money held by it at any
time. The Trustee shall pay to the Company upon such request any money held by
it for the payment of principal or interest that remains unclaimed for two
years; provided, however, that the Trustee before being required to make any
payment may at the expense of the Company cause to be published once in a
newspaper of general circulation in The City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that, after
a date specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining
shall be repaid to the Company. After payment to the Company, Securityholders
entitled to money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person, and all
liability of the Trustee or Paying Agent with respect to such money shall
thereupon cease.
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Section 9.4. Reinstatement.
If the Trustee is unable to apply any money or United States
Government Obligations in accordance with Section 9.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and the Guarantors'(if any) obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.01 until such time as the Trustee is permitted to apply
all such money or United States Government Obligations in accordance with
Section 9.01; provided, however, that if the Company has made any payment of
interest on or principal of any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or United States
Government Obligations held by the Trustee.
ARTICLE 10.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.1. Without Consent of Holders.
The Company and the Guarantors, if any, when authorized by a
resolution of their respective Boards of Directors, and the Trustee may amend
or supplement this Indenture or the Securities without notice to or consent of
any Securityholder:
(i) to cure any ambiguity, defect or inconsistency;
provided, however, that such amendment or supplement does not adversely affect
the rights of any Holder;
(ii) to effect the assumption by a successor Person of all
obligations of the Company under the Securities and this Indenture in
connection with any transaction complying with Article Five of this Indenture;
(iii) to provide for uncertificated Securities in addition
to or in place of certificated Securities;
(iv) to comply with any requirements of the Commission in
order to effect or maintain the qualification of this Indenture under the TIA;
(v) to make any change that would provide any additional
benefit or rights to the Holders;
(vi) to make any other change that does not adversely affect
the rights of any Holder under this Indenture;
(vii) to evidence the succession of another Person to any
Guarantor and the assumption by any such successor of the covenants of such
Guarantor herein and in the Guarantee;
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(viii) to add to the covenants of the Company or the
Guarantors for the benefit of the Holders, or to surrender any right or power
herein conferred upon the Company or any Guarantor;
(ix) to secure the Securities pursuant to the requirements
of Section 4.17 or otherwise; or
(x) to reflect the release of a Guarantor from its
obligations with respect to its Guarantee in accordance with the provisions of
Section 11.03 and to add a Guarantor pursuant to the requirements of Section
4.18;
provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel and an Officers' Certificate each stating that such amendment or
supplement complies with the provisions of this Section 10.01.
Section 10.2. With Consent of Holders.
The Company, the Guarantors, if any, and the Trustee may
amend or supplement this Indenture or the Securities with the written consent
of the Holders of at least a majority in principal amount of the outstanding
Securities. However, without the consent of each Holder affected, an
amendment, supplement or waiver may not:
(1) change the Stated Maturity of the principal of any
Security;
(2) alter the optional redemption or repurchase provisions
of any Security or this Indenture in a manner adverse to the holders of the
Securities (other than the provisions of this Indenture relating to any Offer
to Purchase required under Section 4.05 or 4.14);
(3) reduce the principal amount of any Security;
(4) reduce the rate of or extend the time for payment of
interest on any Security;
(5) change the place or currency of payment of the principal
of or interest on any Security;
(6) modify any provisions of this Indenture relating to the
waiver of past defaults (other than to add sections of this Indenture subject
thereto) or the right of the Holders to institute suit for the enforcement of
any payment on or with respect to any Security or the Guarantees, or the
modification and amendment of this Indenture and the Securities (other than to
add sections of this Indenture or the Securities which may not be amended,
supplemented or waived without the consent of each Holder affected);
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(7) reduce the percentage of the principal amount of
outstanding Securities necessary for amendment to or waiver of compliance with
any provision of this Indenture or the Securities or for waiver of any
Default;
(8) waive a default in the payment of principal of, interest
on, or redemption payment with respect to, any Security (except a rescission
of acceleration of the Securities by the Holders as provided in this Indenture
and a waiver of the payment default that resulted from such acceleration);
(9) modify the ranking or priority of the Securities or the
Guarantee, if any, or modify the definition of Senior Debt or Designated
Senior Debt or amend or modify the subordination provisions of this Indenture
in any manner adverse to the Holders; or
(10) release any Guarantor from its Guarantee or this
Indenture otherwise than in accordance with this Indenture (it being
understood that nothing in this clause (10) requires the consent of Holders of
more than a majority in aggregate principal amount of outstanding Securities
to amend or modify Section 4.05).
In addition, no such modification or amendment may, without
the consent of the Holders of three-fourths of the aggregate principal amount
of Securities affected thereby, modify any of the provisions (including the
definitions relating thereto) relating to any Offer to Purchase required under
Section 4.14 in a manner materially adverse to the Holders.
The Holders of a majority in aggregate principal amount of
the outstanding Securities, on behalf of all holders of Securities, may waive
compliance by the Company with certain restrictive provisions of this
Indenture. Subject to certain rights of the Trustee, as provided in this
Indenture, (i) the Holders of a majority in aggregate principal amount of the
outstanding Securities, on behalf of all Holders of Securities, may waive any
past default under this Indenture, except a default in the payment of principal
or interest or a default arising from failure to purchase any Security tendered
pursuant to an Offer to Purchase required pursuant to Section 4.14, or a
default in respect of a provision that under this Indenture cannot be modified
or amended without the consent of the Holder of each outstanding Security
affected and (ii) the Holders of three-fourths of the aggregate principal
amount of Securities affected thereby, on behalf of all Holders, may waive a
default arising from failure to effect an Offer to Purchase required under
Section 4.14.
It shall not be necessary for the consent of the Holders
under this Section 10.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
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Section 10.3. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
Section 10.4. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is
not made on any Security. Subject to the following paragraph, any such Holder
or subsequent Holder may revoke the consent as to such Holder's Security or
portion of such Security by written notice to the Trustee or the Company
received before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities
have consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date.
No such consent shall be valid or effective for more than 90 days after such
record date.
After an amendment, supplement or waiver becomes effective,
it shall bind every Securityholder, unless it makes a change described in the
second sentence of Section 10.02. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security.
Section 10.5. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Failure to make the appropriate notation or issue a new Security
shall not affect the validity and effect of such amendment, supplement or
waiver.
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Section 10.6. Trustee To Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Ten is authorized or permitted by this
Indenture and that such amendment, supplement or waiver constitutes the legal,
valid and binding obligation of the Company and the Guarantors, enforceable in
accordance with its terms (subject to customary exceptions). The Trustee shall
execute any amendment, supplement or waiver authorized pursuant to this Article
Ten, provided, however, that the Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver which affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise. In signing
any amendment, supplement or waiver, the Trustee shall be entitled to receive
an indemnity reasonably satisfactory to it.
ARTICLE 11.
GUARANTEE
Section 11.1. Unconditional Guarantee.
Each Guarantor who becomes a party to this Indenture hereby
unconditionally, jointly and severally, guarantees to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns that: the principal of and interest on the Securities
will be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration or otherwise, and interest on the overdue
principal and interest on any overdue interest on the Securities and all other
obligations of the Company to the Holders or the Trustee hereunder or under the
Securities will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; subject, however, to the limitations set forth in
Section 11.04. Each such Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each such Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that the Guarantee
will not be discharged except by complete performance of the obligations
contained in the Securities, this Indenture, and this Guarantee. If any Holder
or the Trustee is required by any court or otherwise to return to the Company,
any Guarantor,
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or any custodian, trustee, liquidator or other similar official acting in
relation to the Company or any Guarantor, any amount paid by the Company or
any Guarantor to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between each Guarantor, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six
for the purpose of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article Six, such obligations (whether or not due
and payable) shall forthwith become due and payable by each Guarantor for the
purpose of this Guarantee.
Section 11.2. Severability.
In case any provision of this Guarantee 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 11.3. Release of a Guarantor.
If the Securities are defeased in accordance with Section
9.01(c), or if all of the Capital Stock of any Guarantor is sold (including by
issuance or otherwise) by the Company or any of its Subsidiaries in a
transaction constituting an Asset Disposition (or which, but for the provisions
of clause (c) of the definition of such term, would constitute an Asset
Disposition), and, if required by this Indenture, (x) the Net Available
Proceeds from such Asset Disposition are used in accordance with Section 4.05
or (y) the Company delivers to the Trustee an Officers' Certificate covenanting
that the Net Available Proceeds from such Asset Disposition will be used in
accordance with Section 4.05 and within the time limits specified by such
Section 4.05, then such Guarantor shall be released and discharged from all
obligations under this Article Eleven upon such use in the case of clause (x)
or upon such delivery in the case of clause (y). The Trustee shall, at the sole
cost and expense of the Company and upon receipt at the reasonable request of
the Trustee of an Opinion of Counsel that the provisions of this Section 11.03
have been complied with, deliver an appropriate instrument evidencing such
release upon receipt of a request by the Company accompanied by an Officers'
Certificate certifying as to the compliance with this Section. Any Guarantor
not so released remains liable for the full amount of principal of and interest
on the Securities and the other obligations of the Company hereunder as
provided in this Article Eleven.
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Section 11.4. Limitation of Guarantor's Liability.
Each Guarantor, and by its acceptance hereof each Holder and
the Trustee, hereby confirms that it is the intention of all such parties that
the guarantee by such Guarantor pursuant to its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of title 11 of the United States
Code, as amended, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar U.S. Federal or state or other applicable law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the obligations of such Guarantor under the Guarantee
shall be limited to the maximum amount as will, after giving effect to all
other contingent and fixed liabilities of such Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to Section 11.05, result in the obligations of such
Guarantor under the Guarantee not constituting such fraudulent transfer or
conveyance.
Section 11.5. Contribution.
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, inter se, that in the event any payment
or distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount, based on the net assets of each
Guarantor (including the Funding Guarantor), determined in accordance with
GAAP, subject to Section 11.04, for all payments, damages and expenses incurred
by that Funding Guarantor in discharging the Company's obligations with respect
to the Securities or any other Guarantor's obligations with respect to the
Guarantee.
Section 11.6. Execution of Guarantee.
To further evidence their Guarantee to the Holders, any
Guarantor required to Guarantee the Securities pursuant to Section 4.18 shall
execute the endorsement of Guarantee in substantially the form set forth in
Exhibit A hereto, which endorsement shall be delivered to each Holder to be
attached to each Security. Each such Guarantor hereby agrees that its Guarantee
set forth in Section 11.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Guarantee. Each such Guarantee shall be signed on behalf of each Guarantor by
its Chairman of the Board, its President or one of its Vice Presidents prior to
the authentication of the Security on which it is endorsed, and the delivery of
such Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such Guarantee on behalf of such Guarantor. Such
signature upon the Guarantee may be manual or facsimile signature of such
officer and may be imprinted or otherwise reproduced on the
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Guarantee, and in case such officer who shall have signed the Guarantee shall
cease to be such officer before the Security on which such Guarantee is
endorsed shall have been authenticated and delivered by the Trustee or
disposed of by the Company, such Security nevertheless may be authenticated
and delivered or disposed of as though the Person who signed the Guarantee had
not ceased to be such officer of the Guarantor.
Section 11.7. Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the
Company that arises from the payment, performance or enforcement of such
Guarantor's obligations under its Guarantee or this Indenture, including,
without limitation, any right of subrogation, shall be subject and subordinate
to, and no payment with respect to any such claim of such Guarantor shall be
made before, the payment in full in cash of all outstanding Securities in
accordance with the provisions provided therefor in this Indenture.
ARTICLE 12.
SUBORDINATION OF GUARANTEE
Section 12.1. Guarantee Obligations Subordinated to Senior
Debt of Guarantor
Each Guarantor covenants and agrees, and the Trustee and each
Holder of the Securities by his acceptance thereof likewise covenant and agree,
that the Guarantees shall be issued subject to the provisions of this Article;
and each person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that all payments
of the principal of and interest on the Securities pursuant to the Guarantee
made by or on behalf of any Guarantor shall, to the extent and in the manner
set forth in this Article, be subordinated and junior in right of payment to
the prior payment in full of all Senior Debt of such Guarantor.
Section 12.2 No Payment on Guarantees in Certain
Circumstances
(a) No direct or indirect payment by or on behalf of any
Guarantor of principal of or interest on the Securities (other than payments to
Holders from funds held in trust for the benefit of Holders pursuant to Section
9.01) pursuant to such Guarantor's Guarantee, whether pursuant to the terms of
the Securities, upon acceleration or otherwise, will be made if, at the time of
such payment, there exists a default in the payment of all or any portion of
the obligations on any Designated Senior Debt of such Guarantor whether at
maturity, on account of mandatory redemption or prepayment, acceleration or
otherwise, and such default shall not have been cured or waived. In addition,
during the continuance of any non-payment default or
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non-payment event of default with respect to any Designated Senior Debt
pursuant to which the maturity thereof may be accelerated, and upon receipt by
the Trustee of written notice (the "Guarantor Payment Blockage Notice") from a
holder or holders of such Designated Senior Debt or the trustee or agent
acting on behalf of such Designated Senior Debt, then, unless and until such
default or event of default has been cured or waived or has ceased to exist or
such Designated Senior Debt has been discharged or repaid in full, or the
requisite holders of such Designated Senior Debt have otherwise agreed in
writing, no payment or distribution will be made by or on behalf of such
Guarantor on account of or with respect to the Securities (other than payments
to Holders from funds held in trust for the benefit of Holders pursuant to
Section 9.01), during a period (a "Guarantor Blockage Period") commencing on
the date of receipt of such Guarantor Payment Blockage Notice by the Trustee
and ending 179 days thereafter.
Notwithstanding anything herein or in the Securities to the
contrary, (x) in no event shall a Guarantor Blockage Period extend beyond 179
days from the date the Guarantor Payment Blockage Notice was given and (y)
there must be 180 days in any 365 day period during which no Guarantor Payment
Blockage Period is in effect with respect to such Guarantor. Not more than one
Guarantor Blockage Period may be commenced with respect to each Guarantor
during any period of 365 consecutive days. No default or event of default that
existed or was continuing on the date of commencement of any Guarantor Blockage
Period with respect to the Designated Senior Debt initiating such Guarantor
Payment Blockage Period may be, or be made, the basis for the commencement of
any Guarantor Blockage Period by the holder or holders of such Designated
Senior Debt or the trustee or agent acting on behalf of such Designated Senior
Debt, whether or not within a period of 365 consecutive days, unless such
default or event of default has been cured or waived for a period of not less
than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by Section 12.02(a), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of such
Designated Senior Debt or their respective representatives, or to the trustee
or trustees under any indenture pursuant to which any of such Designated Senior
Debt may have been issued, as their respective interests may appear, but only
to the extent that, upon notice from the Trustee to the holders of such
Designated Senior Debt that such prohibited payment has been made, the holders
of such Designated Senior Debt (or their representative or representatives or a
trustee) notify the Trustee in writing of the amounts then due and owing on
such Designated Senior Debt, if any, and only the amounts specified in such
notice to the Trustee shall be paid to the holders of such Designated Senior
Debt.
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Section 12.3. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities
of any Guarantor of any kind or character (whether in cash, property or
securities) upon any dissolution or winding-up or total or partial liquidation
or reorganization of such Guarantor, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or
to become due with respect to all Senior Debt of such Guarantor shall first be
paid in full, or payment provided for, before the Holders or the Trustee on
their behalf shall be entitled to receive any payment by such Guarantor of the
principal of or interest on the Securities pursuant to such Guarantor's
Guarantee, or any payment to acquire any of the Securities for cash, property
or securities, or any distribution with respect to the Securities of any cash,
property or securities. Before any payment may be made by, or on behalf of, any
Guarantor of the principal of or interest on the Securities upon any such
dissolution or winding-up or liquidation or reorganization, any payment or
distribution of assets or securities of such Guarantor of any kind or
character, whether in cash, property or securities, to which the Holders of the
Securities or the Trustee on their behalf would be entitled, but for the
subordination provisions of this Indenture, shall be made by such Guarantor or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, directly to the holders of the
Senior Debt of such Guarantor or their representative(s) or to the trustee(s)
under any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear, to the extent necessary to
pay all such Senior Debt in full after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Senior Debt.
(b) In the event that, notwithstanding the foregoing
provision prohibiting such payment or distribution, any payment or distribution
of assets or securities of any kind or character, whether in cash, property or
securities, shall be received by the Trustee or any Holder at a time when such
payment or distribution is prohibited by Section 12.03(a) and before all
obligations in respect of the Senior Debt of such Guarantor are paid in full,
or payment provided for, such payment or distribution shall be received and
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of such Senior Debt or their respective representative(s), or to the
trustee(s) under any indenture pursuant to which any of such Senior Debt may
have been issued, as their respective interests may appear, for application to
the payment of such Senior Debt remaining unpaid until all such Senior Debt has
been paid in full after giving effect to any concurrent payment, distribution
or provision therefor to or for the holders of such Senior Debt.
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(c) The consolidation of any Guarantor with, or the merger of
any Guarantor with or into, another corporation or the liquidation or
dissolution of any Guarantor following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided in Article Five or Section
11.03 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Five or such Guarantor or successor
entity shall be released from the Guarantee pursuant to the terms of Section
11.03.
Section 12.4. Subrogation.
Upon the payment in full of all Senior Debt of a Guarantor,
or provision for payment, the Holders shall be subrogated (equally and ratably
with all pari passu Indebtedness) to the rights of the holders of such Senior
Debt to receive payments or distributions of cash, property or securities of
such Guarantor made on such Senior Debt until the principal of and interest on
the Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior Debt of
any cash, property or securities to which the Holders or the Trustee on their
behalf would be entitled except for the provisions of this Article, and no
payment over pursuant to the provisions of this Article to the holders of such
Senior Debt by Holders or the Trustee on their behalf shall, as between such
Guarantor, its creditors other than holders of such Senior Debt, and the
Holders, be deemed to be a payment by such Guarantor to or on account of such
Senior Debt. It is understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders,
on the one hand, and the holders of Senior Debt of the Guarantors, on the other
hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article shall have
been applied, pursuant to the provisions of this Article, to the payment of all
amounts payable under Senior Debt, then and in such case, the Holders shall be
entitled to receive from the holders of such Senior Debt any payments or
distributions received by such holders of Senior Debt in excess of the amount
required to make payment in full, or provision for payment, of such Senior
Debt.
Section 12.5. Obligations of Guarantors Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities or the Guarantee is intended to or shall impair,
as among the Guarantors and the Holders, the obligation of each Guarantor,
which is absolute and unconditional, to pay to the Holders the principal of and
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interest on the Securities as and when the same shall become due and payable in
accordance with the terms of the Guarantee, or is intended to or shall affect
the relative rights of the Holders and creditors of any Guarantor other than
the holders of Senior Debt, nor shall anything herein or therein prevent any
Holder or the Trustee on their behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Debt in respect of
cash, property or securities of any Guarantor received upon the exercise of any
such remedy.
Without limiting the generality of the foregoing, nothing
contained in this Article shall restrict the right of the Trustee or the
Holders to take any action to declare the Securities to be due and payable
prior to their stated maturity pursuant to Section 6.01 or to pursue any rights
or remedies hereunder; provided, however, that all Senior Debt of any Guarantor
then due and payable shall first be paid in full before the Holders or the
Trustee are entitled to receive any direct or indirect payment from such
Guarantor of principal of or interest on the Securities pursuant to such
Guarantor's Guarantee.
Section 12.6. Notice to Trustee.
The Company shall give prompt written notice to the Trustee
of any fact known to the Company or such Guarantor which would prohibit the
making of any payment to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article. Failure to give such notice to the
Trustee shall not affect the subordination of the Securities to Senior Debt of
Guarantors. The Trustee shall not be charged with knowledge of the existence of
any default or event of default with respect to any Senior Debt or of any other
facts which would prohibit the making of any payment to or by the Trustee
unless and until the Trustee shall have received notice in writing to that
effect signed by an Officer of the Company, or by a holder of Senior Debt or
trustee or agent therefor; and prior to the receipt of any such written notice,
the Trustee shall, subject to Article Seven, be entitled to assume that no such
facts exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section 12.06 at least three Business Days prior to
the date upon which by the terms of this Indenture any moneys shall become
payable for any purpose (including, without limitation, the payment of the
principal of or interest on any Security), then, regardless of anything herein
to the contrary, the Trustee shall have full power and authority to receive any
moneys from any Guarantor and to apply the same to the purpose for which they
were received, and shall not be affected by any notice to the contrary which
may be received by it on or after such prior date. Nothing contained in this
Section 12.06 shall limit the right of the holders of Senior Debt of a
Guarantor to recover payments as contemplated by Section 12.02 or 12.03. The
Trustee shall be entitled to rely on the delivery to it of a
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written notice by a Person representing himself or itself to be a holder of
any Senior Debt of a Guarantor (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given
by a holder of such Senior Debt of a Guarantor or a trustee or representative
on behalf of any such holder.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Senior Debt of a Guarantor to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 12.7. Reliance on Judicial Order or Certificate
of Liquidating Agent.
Upon any payment or distribution of assets or securities of a
Guarantor referred to in this Article, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of Senior Debt of such Guarantor and other
indebtedness of such 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.
Section 12.8. Trustee's Relation to Senior Debt of
Guarantors.
The Trustee and any Paying Agent shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt of Guarantors
which may at any time be held by it in its individual or any other capacity to
the same extent as any other holder of such Senior Debt, and nothing in this
Indenture shall deprive the Trustee or any Paying Agent of any of its rights as
such holder.
With respect to the holders of a Guarantor's Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of such Senior Debt shall
be read into
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this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt of Guarantors (except as provided
in Section 12.03(b)). The Trustee shall not be charged with knowledge of the
existence of Senior Debt or of any facts that would prohibit any payment
hereunder unless the Trustee shall have received notice to that effect at the
address of the Trustee set forth in Section 13.02.
Section 12.9. Subordination Rights Not Impaired by
Acts or Omissions of the Guarantors or
Holders of Senior Debt of Guarantors.
No right of any present or future holders of any Senior Debt
of Guarantors to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
any Guarantor or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by any Guarantor with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have
or otherwise be charged with. The provisions of this Article are intended to be
for the benefit of, and shall be enforceable directly by, the holders of Senior
Debt of Guarantors.
Section 12.10. Securityholders Authorize Trustee to
Effectuate Subordination of Guarantee.
Each Holder of Securities by his acceptance of such
Securities authorizes and expressly directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article, and appoints the Trustee his attorney-in-fact for
such purposes, including, in the event of any dissolution, winding up,
liquidation or reorganization of any Guarantor (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of such Guarantor, the filing of a claim
for the unpaid balance of its or his Securities in the form required in those
proceedings.
Section 12.11. This Article Not to Prevent Events of
Default.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article shall not
be construed as preventing the occurrence of an Event of Default specified in
Section 6.01(a), (b) or (c).
Section 12.12. Trustee's Compensation Not Prejudiced.
Nothing in this Article shall apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
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Section 12.13. No Waiver of Guarantee Subordination
Provisions.
Without in any way limiting the generality of Section 12.09,
the holders of Senior Debt of Guarantors may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt of Guarantors, do any one or more of the following: (a) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Debt of Guarantors or any instrument evidencing the same or any
agreement under which such Senior Debt is outstanding or secured; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Debt; (c) release any Person liable in any
manner for the collection of such Senior Debt; and (d) exercise or refrain from
exercising any rights against any Guarantor and any other Person.
Section 12.14. Payments May Be Paid Prior to
Dissolution.
Nothing contained in this Article or elsewhere in this
Indenture shall prevent (i) a Guarantor, except under the conditions described
in Section 12.02, from making payments of principal of and interest on the
Securities, or from depositing with the Trustee any moneys for such payments,
or (ii) the application by the Trustee of any moneys deposited with it for the
purpose of making such payments of principal of and interest on the Securities,
to the holders entitled thereto unless at least three Business Days prior to
the date upon which such payment becomes due and payable, the Trustee shall
have received the written notice provided for in Section 12.02(b) or in Section
12.06.
ARTICLE 13.
MISCELLANEOUS
Section 13.1. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that
are required to be a part of this Indenture, and shall, to the extent
applicable, be governed by such provisions. If any provision of this Indenture
modifies any TIA provision that may be so modified, such TIA provision shall be
deemed to apply to this Indenture as so modified. If any provision of this
Indenture excludes any TIA provision that may be so excluded, such TIA
provision shall be excluded from this Indenture.
The provisions of TIA ss.ss. 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are
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a part of and govern this Indenture, whether or not physically contained
herein.
Section 13.2. Notices.
Any notice or communication shall be sufficiently given if in
writing and delivered in person, by facsimile, by overnight courier, or mailed
by first-class mail addressed as follows:
if to the Company:
United Auto Group, Inc.
375 Park Avenue, 11th Floor
New York, NY 10152
Attention: Chairman and Chief Executive Officer
Facsimile: (212) 593-1363
Telephone: (212) 230-0400
with a copy to:
Jack H. Nusbaum, Esq.
Willkie Farr & Gallagher
153 East 53rd Street
New York, New York 10022
Facsimile: (212) 821-8111
Telephone: (212) 821-8000
if to the Trustee:
The Bank of New York
101 Barclay Street, 21W
New York, New York 10007
Attention: Corporate Trust Trustee Administration
Facsimile: (212) 815-5915
Telephone: (212) 815-5783
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when telephonic acknowledgment of receipt is
obtained, if telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight courier promising next Business Day delivery.
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Any notice or communication to a Holder shall be mailed, by
first class mail, postage prepaid, or by overnight air courier promising next
Business Day delivery, including any notice delivered in connection with TIA
ss.ss. 310(b), 313(c), 314(a) and 315(b), to him at his address as set forth on
the registration books of the Registrar and shall be sufficiently given to him
if so mailed within the time prescribed. To the extent required by the TIA, any
notice or communication shall also be mailed to any Person described in TIA ss.
313(c).
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is given in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 13.3. Communications by Holders with Other
Holders.
Securityholders may communicate pursuant to TIAss. 312(b)
with other Securityholders with respect to their rights under this Indenture
or the Securities. The Company, the Trustee, the Registrar and any other
person shall have the protection of TIAss. 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 at the request of the Trustee:
(1) an Officers' Certificate in form and substance
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;
(2) an Opinion of Counsel in form and substance satisfactory
to the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with; and
(3) where applicable, a certificate or opinion by an
independent certified public accountant satisfactory to the Trustee that
complies with TIA ss. 314(c).
Section 13.5. Statements Required in Certificate or
Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
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(1) a statement that the person 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 person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however, that
with respect to matters of fact an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
Section 13.6. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting
of Securityholders. The Paying Agent or Registrar may make reasonable rules
for its functions.
Section 13.7. Governing Law.
The laws of the State of New York shall govern this
Indenture, the Securities and the Guarantee without regard to principles of
conflicts of law.
Section 13.8. No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the
Company or any of its Subsidiaries shall have any liability for any
obligations of the Company or any Guarantor under the Securities, the
Guarantees or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting
Security waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities.
Section 13.9. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of each Guarantor in this Indenture
and the Guarantee of such Guarantor shall bind its successor. All agreements
of the Trustee in this Indenture shall bind its successor.
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Section 13.10. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 13.11. Severability.
In case any provision in this Indenture, in the Securities or in the
Guarantee 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 a Holder shall have no claim therefor
against any party hereto.
Section 13.12. No Adverse Interpretation of Other Agreements .
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or a Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 13.13. Legal Holidays.
If a payment date is not a Business Day at a place of payment,
payment may be made at that place on the next succeeding Business Day, and no
interest shall accrue for the intervening period.
[Signature Page Follows]
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
UNITED AUTO GROUP, INC.
By:
--------------------------
Name:
Title:
GUARANTORS:
DIFEO PARTNERSHIP, INC.
DIFEO PARTNERSHIP RCT, INC.
DIFEO PARTNERSHIP RCM, INC.
DIFEO PARTNERSHIP HCT, INC.
DIFEO PARTNERSHIP SCT, INC.
DIFEO PARTNERSHIP VIII, INC.
DIFEO PARTNERSHIP IX, INC.
DIFEO PARTNERSHIP X, INC.
UAG NORTHEAST, INC.
UAG NORTHEAST (NY), INC.
HUDSON TOYOTA, INC.
SOMERSET MOTORS, INC.
UAG WEST, INC.
SA AUTOMOTIVE, LTD.
SL AUTOMOTIVE, LTD.
SPA AUTOMOTIVE, LTD.
LRP, LTD.
SUN BMW, LTD.
6725 DEALERSHIP, LTD.
SCOTTSDALE MANAGEMENT GROUP, LTD.
SK MOTORS, LTD.
SCOTTSDALE AUDI, LTD.
UNITED LANDERS, INC.
LANDERS AUTO SALES, INC.
LANDERS UNITED AUTO GROUP, INC.
LANDERS UNITED AUTO GROUP NO. 2,
INC.
LANDERS UNITED AUTO GROUP NO. 3,
INC.
LANDERS UNITED AUTO GROUP NO. 4,
INC.
LANDERS BUICK-PONTIAC, INC.
UAG ATLANTA, INC.
ATLANTA TOYOTA, INC.
UAG ATLANTA II, INC.
UNITED NISSAN, INC.,
a Georgia corporation
UAG ATLANTA III, INC.
PEACHTREE NISSAN, INC.
UAG ATLANTA IV, INC.
UAG ATLANTA IV MOTORS, INC.
UAG ATLANTA V, INC.
CONYERS NISSAN, INC.
UAG TENNESSEE, INC.
UNITED NISSAN, INC.,
a Tennessee corporation
UAG TEXAS, INC.
UAG TEXAS II, INC.
UAG EAST, INC.
AMITY AUTO PLAZA, LTD.
AMITY NISSAN OF MASSAPEQUA, LTD.
AUTO MALL PAYROLL SERVICES, INC.
AUTOMALL STORAGE, INC.
FLORIDA CHRYSLER PLYMOUTH, INC.
J&S AUTO REFINISHING, LTD.
NORTHLAKE AUTO FINISH, INC.
PALM AUTO PLAZA, INC.
WEST PALM AUTO MALL, INC.
WEST PALM INFINITI, INC.
WEST PALM NISSAN, INC.
WESTBURY NISSAN, LTD.
WESTBURY SUPERSTORE, LTD.
UAG CAROLINA, INC.
GENE REED CHEVROLET, INC.
MICHAEL CHEVROLET-OLDSMOBILE, INC.
REED LALLIER CHEVROLET, INC.
UAG NEVADA, INC.
UNITED NISSAN, INC.,
a Nevada corporation
UNITED AUTOCARE, INC.
UNITED AUTOCARE PRODUCTS, INC.
UAG CAPITAL MANAGEMENT, INC.
UAG FINANCE COMPANY, INC.
By:
Name:
Title:
FAIR HYUNDAI PARTNERSHIP
FAIR CHEVROLET-GEO PARTNERSHIP
DANBURY AUTO PARTNERSHIP
DANBURY CHRYSLER PLYMOUTH
PARTNERSHIP
J&F OLDSMOBILE PARTNERSHIP
DIFEO HYUNDAI PARTNERSHIP
DIFEO LEASING PARTNERSHIP
DIFEO NISSAN PARTNERSHIP
DIFEO CHEVROLET-GEO PARTNERSHIP
DIFEO CHRYSLER PLYMOUTH JEEP
EAGLE PARTNERSHIP
DIFEO BMW PARTNERSHIP
By: DIFEO PARTNERSHIP, INC.,
a general partner
By:
------------------------------
Name:
Title:
HUDSON MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP HTC, INC.,
a general partner
By:
------------------------------
Name:
Title:
OCT PARTNERSHIP
By: DIFEO PARTNERSHIP VIII, INC.,
a general partner
By:
------------------------------
Name:
Title:
OCM PARTNERSHIP
By: DIFEO PARTNERSHIP IX, INC.,
a general partner
By:
------------------------------
Name:
Title:
SOMERSET MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP SCT, INC.,
a general partner
By:
------------------------------
Name:
Title:
COUNTY AUTO GROUP PARTNERSHIP
By: DIFEO PARTNERSHIP RCT, INC.,
a general partner
By:
------------------------------
Name:
Title:
ROCKLAND MOTORS PARTNERSHIP
By: DIFEO PARTNERSHIP RCM, INC.,
a general partner
By:
------------------------------
Name:
Title:
6725 AGENT PARTNERSHIP
By: SCOTTSDALE AUDI, LTD.,
a general partner
By:
------------------------------
Name:
Title:
SHANNON AUTOMOTIVE, LTD.
By: UAG TEXAS II, INC.,
its general partner
By:
------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------
Name:
Title:
EXHIBIT A
UNITED AUTO GROUP, INC.
CUSIP No.
No. $
11% SENIOR SUBORDINATED NOTE DUE 2007
UNITED AUTO GROUP, INC. promises to pay to ___________
or registered assigns the principal sum of _____________________ Dollars on
July 15, 2007.
Interest Payment Dates: January 15 and July 15, beginning
January 15, 1998.
Record Dates: January 1 and July 1, beginning
January 1, 1998.
IN WITNESS WHEREOF, UNITED AUTO GROUP, INC. has caused this
instrument to be executed by duly authorized officers.
UNITED AUTO GROUP, INC.
By:
-----------------------------
Name:
Title:
Dated: By:
-----------------------------
Name:
Title:
Certificate of Authentication:
This is one of the 11% Senior Subordinated Notes due 2007
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK
a Trustee
By Date:
--------------------
Authorized Signatory
(REVERSE OF SECURITY)
UNITED AUTO GROUP, INC.
11% Senior Subordinated Note due 2007
1. Interest.
United Auto Group, Inc., a Delaware corporation (the
"Company"), promises to pay interest at the rate of 11% per annum on the
principal amount of this Security semiannually commencing on January 15, 1998,
until the principal hereof is paid or made available for payment. Interest on
the Securities will accrue from and including the most recent date to which
interest has been paid or, if no interest has been paid, from and including
July 23, 1997, through but excluding the date on which interest is paid. If an
Interest Payment Date falls on a day that is not a Business Day, the interest
payment to be made on such Interest Payment Date will be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
2. Method of Payment.
The interest payable on the Securities, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture (as defined below), be paid to the Person in whose name this Security
is registered at the close of business on the regular record date, which shall
be the January 1 or July 1 (whether or not a Business Day) next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for, and any interest payable on such defaulted interest (to the
extent lawful), will forthwith cease to be payable to the Holder on such
regular record date and shall be paid to the person in whose name this Security
is registered at the close of business on a special record date for the payment
of such defaulted interest to be fixed by the Company, notice of which shall be
given to Holders not less than 15 days prior to such special record date.
Payment of the principal of and interest on this Security will be made at the
agency of the Company maintained for that purpose in New York, New York and at
any other office or agency maintained by the Company for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security register.
A-2
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-Registrar without notice to the Holders of Securities. The Company or
any of its Subsidiaries may act as Registrar or co-Registrar but may not act
as Paying Agent.
4. Indenture.
This Security is one of a duly authorized issue of Securities
of the Company, designated as its 11% Senior Subordinated Notes due 2007 (the
"Securities"), limited in aggregate principal amount to $150,000,000 (except
for Securities issued in substitution for destroyed, lost or stolen Securities)
issuable under an indenture dated as of July 23, 1997 (the "Indenture"), among
the Company, the guarantors party thereto (the "Guarantors") and the Trustee.
The terms of the Securities include those stated in the Indenture and those
made part of the Indenture by the Trust Indenture Act of 1939 (the "Act") (15
U.S. Code ss.ss. 77aaa-77bbbb) as in effect on the date of the Indenture. The
Securities are subject to all such terms, and Holders of Securities are
referred to the Indenture and the Act for a statement of them. Each
Securityholder, by accepting a Security, agrees to be bound to all of the terms
and provisions of the Indenture, as the same may be amended from time to time.
Payment on each Security is guaranteed on a senior subordinated basis, jointly
and severally, by the Guarantors pursuant to Article Eleven of the Indenture.
The Securities are subordinated in right of payment to all
Senior Debt of the Company to the extent and in the manner provided in the
Indenture. Each Holder of a Security, by accepting a Security, agrees to such
subordination, authorizes the Trustee to give effect to such subordination and
appoints the Trustee as attorney-in-fact for such purpose.
Capitalized terms contained in this Security to the extent
not defined herein shall have the meanings assigned to them in the Indenture.
5. Optional Redemption.
The Securities will be subject to redemption, at the option
of the Company, in whole or in part, at any time on or after July 15, 2002 and
prior to maturity, upon not less than 30 nor more than 60 days' notice mailed
to each Holder of Securities to be redeemed, in amounts of $1,000 or an
integral multiple of $1,000, at the following redemption prices (expressed as
percentages of principal amount), plus accrued interest to but excluding the
date fixed for redemption (subject to the right of Holders on the relevant
Record Date to receive interest due on an
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Interest Payment Date that is on or prior to the date fixed for redemption),
if redeemed during the 12-month period beginning July 15 of the years
indicated:
Year Percentage
2002 105.500%
2003 103.667
2004 101.833
2005 and thereafter 100.000
In addition, prior to July 15, 2000, the Company may redeem
Securities with the net cash proceeds received by the Company from one or more
Public Equity Offerings at a redemption price equal to 111% of the principal
amount thereof, plus accrued and unpaid interest to (but excluding) the date
fixed for redemption; provided, however, that at least $100.0 million in
aggregate principal amount of the Securities remains outstanding immediately
after any such redemption (excluding any Securities owned by the Company or any
of its Affiliates). Notice of redemption pursuant to this paragraph must be
mailed to Holders of Securities to be redeemed not later than 60 days following
the consummation of the relevant Public Equity Offering.
Selection of Securities for any partial redemption shall be
made by the Trustee, in accordance with the rules of any national securities
exchange on which the Securities may be listed or, if the Securities are not so
listed, pro rata or by lot or in such other manner as the Trustee shall deem
appropriate and fair. Securities in denominations larger than $1,000 may be
redeemed in part but only in integral multiples of $1,000. Notice of redemption
will be mailed before the date fixed for redemption to each Holder of
Securities to be redeemed at his or her registered address. On and after the
date fixed for redemption, interest will cease to accrue on Securities or
portions thereof called for redemption.
The Securities will not have the benefit of any sinking fund.
6. Offer to Purchase upon Occurrence of a Change of
Control.
Within 30 days following a Change of Control, the Company
will offer to purchase the Securities at a purchase price equal to 101% of the
principal amount thereof plus any accrued and unpaid interest thereon.
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7. Notice of Redemption.
Notice of redemption will be mailed by first class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 may be redeemed in part. On and after the
redemption date, interest ceases to accrue on those Securities or portion of
them called for redemption.
8. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not transfer or exchange any Securities
selected for redemption.
9. Persons Deemed Owners.
The registered Holder of a Security may be treated as the
owner of it for all purposes.
10. Unclaimed Funds.
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee or Paying Agent will repay the funds to
the Company at its request. After such repayment Holders of Securities
entitled to such funds must look to the Company for payment unless an
abandoned property law designates another person.
11. Discharge Prior to Redemption or Maturity.
The Indenture will be discharged and canceled except for
certain Sections thereof, subject to the terms of the Indenture, upon the
payment of all the Securities or upon the irrevocable deposit with the Trustee
of funds or United States Government Obligations sufficient for such payment or
redemption.
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the outstanding Securities, and any
past default or compliance with any provision may be waived with the consent of
the Holders of a majority in principal amount of the outstanding Securities.
Without notice to or the consent of any Holder, the Company, the Guarantors and
the Trustee may amend or supplement the Indenture
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or the Securities to cure any ambiguity, defect or inconsistency, or to make
any change that does not adversely affect the rights of any Holder of
Securities.
13. Restrictive Covenants.
The Indenture restricts, among other things, the ability of
the Company or any Restricted Subsidiary to permit any Liens to be imposed on
their assets, to make certain Restricted Payments and Investments, limits the
Indebtedness which the Company or any Restricted Subsidiary may incur and
limits the terms on which the Company may engage in certain Asset Dispositions.
The Company is also obligated under certain circumstances to make an offer to
purchase Securities with the net cash proceeds of certain Asset Dispositions.
The Company must report quarterly to the Trustee on compliance with the
covenants in the Indenture.
14. Successor Corporation.
Pursuant to the Indenture, the ability of the Company to
consolidate with, merge with or into or transfer its assets to another person
is conditioned upon certain requirements, including certain financial
requirements applicable to the surviving Person.
15. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the
principal of all of the outstanding Securities, plus all accrued and unpaid
interest, if any, to the date the Securities become due and payable, may be
declared due and payable in the manner and with the effect provided in the
Indenture.
16. Trustee Dealings with Company.
The Trustee in its individual or any other capacity, may
become the owner or pledgee of Securities and make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may otherwise
deal with the Company or its Affiliates, as if it were not Trustee.
17. No Recourse Against Others.
No director, officer, employee or stockholder, as such, of
the Company or any of its Subsidiaries shall have any liability for any
obligations of the Company or any Guarantor under the Securities, the Guarantee
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder of a Security by accepting a
Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
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18. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of
Securityholder or an assignee, such as TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
21. Governing Law.
The laws of the State of New York shall govern the Indenture,
this Security and the Guarantee without regard to principles of conflicts of
law.
The Company will furnish to any Holder of record of
Securities upon written request and without charge a copy of the Indenture.
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[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantor(s) (as defined in the Indenture referred to in
the Security upon which this notation is endorsed) hereby, jointly and
severally, unconditionally guarantee on a senior subordinated basis (such
guarantee by each Guarantor being referred to herein as the "Guarantee") the
due and punctual payment of the principal of, premium, if any, and interest on
the Securities, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal, premium and interest, if
any, on the Securities, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee, all in accordance
with the terms set forth in Article Eleven of the Indenture.
The obligations of each Guarantor to the Holders of
Securities and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth, and are expressly subordinated and subject in right of
payment to the prior payment in full of all Senior Debt of such Guarantor, to
the extent and in the manner provided, in Article Twelve of the Indenture, and
reference is hereby made to such Indenture for the precise terms of the
Guarantee therein made.
The Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which
the Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
This Guarantee shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
This Guarantee is subject to release upon the terms set forth
in the Indenture.
[GUARANTORS]
By:
----------------------
Name:
Title:
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ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Security to:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint , agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: _________________ Signed: ________________________
(Sign exactly as name
appears on the other
side of this Security)
Signature Guarantee: ___________________________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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OPTION OF HOLDER TO ELECT PURCHASE
If you the Holder want to elect to have this Security purchased by the Company,
check the box: [ ]
If you want to elect to have only part of this Security purchased by the
Company, state the amount: $_________________
Dated: _________________ Signed: ________________________
(Sign exactly as name
appears on the other
side of this Security)
Signature Guarantee: ___________________________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
UNITED AUTO GROUP, INC.
375 Park Avenue
New York, NY 10152
Attention:
[Name and Address of Registrar]
Re: 11% Senior Subordinated Notes due 2007
Reference is hereby made to the Indenture, dated as of July
23, 1997 (the "Indenture"), between United Auto Group, Inc. (the "Company"),
and The Bank of New York, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
________________, (the "Transferor") owns and proposes to
transfer the Security[s] specified in Annex A hereto in the principal amount of
$___ in such Security[s] (the "Transfer"), to ________ (the "Transferee"), as
further specified in Annex A hereto. In the event that Transferor holds
Physical Securities, this Certificate is accompanied by one or more
certificates aggregating at least the principal amount of Securities proposed
to be Transferred. In connection with the Transfer, the Transferor hereby
certifies that:
1. [ ] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE 144A GLOBAL SECURITY.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
Securities are being transferred to a Person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred Security will be subject to the restrictions on
transfer enumerated in the Securities Act Legend and in the Indenture and the
Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE REGULATION S GLOBAL
SECURITY PURSUANT TO REGULATION S. The Transfer is being effected pursuant to
and in accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to
a person in the United States and (x) at the time
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the buy order was originated, the Transferee was outside the United States or
such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting
on its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 904(b) of Regulation S under the
Securities Act and (iii) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
Security will be subject to the restrictions on Transfer enumerated in the
Securities Act Legend printed on the Regulation S Global Security and in the
Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A RESTRICTED
PHYSICAL SECURITY PURSUANT TO RULE 144A OR REGULATION S. One or more of the
events specified in Section 2.06(a) of the Indenture have occurred and the
Transfer is being effected in compliance with the transfer restrictions
applicable to Securities bearing the Securities Act Legend and pursuant to and
in accordance with the Securities Act, and accordingly the Transferor hereby
further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 144A under the Securities Act and the Transferor certifies to the
effect set forth in paragraph 1 above; or
(b) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 904 under the Securities Act and the Transferor certifies to the
effect set forth in paragraph 2 above.
4. [ ] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE UNRESTRICTED GLOBAL
SECURITY The Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture, and the restrictions on transfer
contained in the Indenture and the Securities Act Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred Securities will no longer be subject to the restrictions on
transfer enumerated in the Securities Act Legend and in the Indenture and the
Securities Act.
5. [ ] CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE PHYSICAL GLOBAL
SECURITY THAT DOES NOT BEAR THE SECURITIES ACT LEGEND One or more of the
events specified in Section 2.06(a) of the Indenture have occurred and the
Transfer is being effected
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pursuant to and in accordance with Rule 144 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture, and the
restrictions on transfer contained in the Indenture and the Securities Act
Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred Securities will no longer be subject to the
restrictions on transfer enumerated in the Securities Act Legend and in the
Indenture and the Securities Act.
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This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuers.
----------------------------------
[Insert Name of Transferor]
By:
-----------------------------
Name:
Title:
Dated:_________________
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FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] Interests in the
(i) [ ] 144A Global Security (CUSIP _____), or
(ii) [ ] Regulation S Global Security (CINS _____).
(b) [ ] Physical Security.
2. That the Transferee will hold:
[CHECK ONE]
(a) [ ] Interests in the:
(i) [ ] 144A Global Security (CUSIP _____), or
(ii) [ ] Regulation S Global Security (CINS _____), or
(iii) [ ] Unrestricted Global Security (CUSIP _____); or
(b) [ ] Physical Securities that bear the Securities Act
Legend;
(c) [ ] Physical Securities that do not bear the Securities
Act Legend;
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
UNITED AUTO GROUP, INC.
375 Park Avenue
New York, NY 10152
Attention:
[Name and Address of Registrar]
Re: 11% Senior Subordinated Notes due 2007
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of July
23, 1997 (the "Indenture"), between United Auto Group, Inc. (the "Company")
and The Bank of New York, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________, (the "Holder") owns and proposes to exchange the
Security[s] specified herein, in the principal amount of $___ in such
Security[s] (the "Exchange"). In the event Holder holds Physical Securities,
this Certificate is accompanied by one or more certificates aggregating at
least the principal amount of Securities proposed to be Exchanged. In
connection with the Exchange, the Holder hereby certifies that:
1. EXCHANGE OF RESTRICTED PHYSICAL SECURITIES OR INTERESTS IN THE INITIAL
GLOBAL SECURITY FOR PHYSICAL SECURITIES THAT DO NOT BEAR THE SECURITIES ACT
LEGEND OR UNRESTRICTED GLOBAL SECURITIES
(A) [ ] CHECK IF EXCHANGE IS FROM INITIAL GLOBAL SECURITIES TO THE
UNRESTRICTED GLOBAL SECURITY. In connection with the Exchange of the Holder's
Initial Global Security to the Unrestricted Global Security in an equal
principal amount, the Holder hereby certifies (i) the Unrestricted Global
Securities are being acquired for the Holder's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Initial Global Securities and pursuant to and in
accordance with the Securities Act of 1933, as amended (the "Securities Act")
and (iii) the restrictions on transfer contained in the Indenture and the
Securities Act Legend are not required in order to maintain compliance with the
Securities Act.
(B) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO AN
INTEREST IN THE UNRESTRICTED GLOBAL SECURITY. In connection with the Holder's
Exchange of Restricted Physical Securities for Interest in the Unrestricted
Global Security, (i) the Interest in the Unrestricted Global Security are being
acquired for the Holder's own account without transfer, (ii) such
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Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Physical Securities and pursuant to and in accordance
with the Securities Act and (iii) the restrictions on transfer contained in
the Indenture and the Securities Act Legend are not required in order to
maintain compliance with the Securities Act.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO
PHYSICAL SECURITIES THAT DO NOT BEAR THE SECURITIES ACT LEGEND. In connection
with the Holder's Exchange of a Restricted Physical Security for Physical
Securities that do not bear the Securities Act Legend, the Holder hereby
certifies (i) the Physical Securities that do not bear the Securities Act
Legend are being acquired for the Holder's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Physical Securities and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act and (iv) one or more of the events
specified in Section 2.06(a) of the Indenture have occurred.
2. [ ] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO INTERESTS
IN AN INITIAL GLOBAL SECURITY . In connection with the Exchange of the
Holder's Restricted Physical Security for interests in an Initial Global
Security [[CHECK ONE] 144A Global Security, Regulation S Global Security],
with an equal principal amount, (i) the interests in the Initial Global
Security are being acquired for the Holder's own account without transfer and
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Physical Security and pursuant to
and in accordance with the Securities Act. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Initial Global
Security issued will be subject to the restrictions on transfer enumerated in
the Securities Act Legend printed on the Initial Global Securities and in the
Indenture and the Securities Act.
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This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuers.
----------------------------------
[Insert Name of Transferor]
By:
------------------------------
Name:
Title:
Dated:_________________
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