TEREX CORPORATION,
as Issuer
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Subsidiary Guarantors
and
HSBC BANK USA,
as Trustee
__________
INDENTURE
Dated as of November 25, 2003
__________
7-3/8% Senior Subordinated Notes due 2014
<page>
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- -------
310(a)(1) ....................... 7.10
(a)(2) ....................... 7.10
(a)(3) ....................... N.A.
(a)(4) ....................... N.A.
(a)(5) ....................... 7.08; 7.10
(b) ....................... 7.08; 7.10; 13.02
(c) ....................... N.A.
311(a) ....................... 7.11
(b) ....................... 7.11
(c) ....................... N.A.
312(a) ....................... 2.05
(b) ....................... 13.03
(c) ....................... 13.03
313(a) ....................... 7.06
(b)(1) ....................... N.A.
(b)(2) ....................... 7.06
(c) ....................... 7.06; 13.02
(d) ....................... 7.06
314(a) ....................... 4.07; 4.08; 13.02
(b) ....................... N.A.
(c)(1) ....................... 13.04
(c)(2) ....................... 13.04
(c)(3) ....................... N.A.
(d) ....................... N.A.
(e) ....................... 13.05
(f) ....................... N.A.
315(a) ....................... 7.01(b)
(b) ....................... 7.05; 13.02
(c) ....................... 7.01(a)
(d) ....................... 7.01(c)
(e) ....................... 6.11
316(a) (last sentence).................. 2.09
(a)(1)(A) ....................... 6.05
(a)(1)(B) ....................... 6.04
(a)(2) ....................... N.A.
(b) ....................... 6.07
(c) ....................... 9.05
317(a)(1) ....................... 6.08
(a)(2) ....................... 6.09
(b) ....................... 2.04
318(a) ....................... 13.01
(c) ....................... 13.01
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
<page>
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions ................................................2
SECTION 1.02. Incorporation by Reference of TIA..........................21
SECTION 1.03. Rules of Construction .....................................21
SECTION 1.04. One Class of Securities .................................22
ARTICLE TWO THE NOTES
SECTION 2.01. Form and Dating ...........................................22
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount...23
SECTION 2.03. Registrar and Paying Agent.................................23
SECTION 2.04. Paying Agent To Hold Assets in Trust.......................24
SECTION 2.05. Noteholder Lists .........................................24
SECTION 2.06. Transfer and Exchange .....................................24
SECTION 2.07. Replacement Notes .........................................37
SECTION 2.08. Outstanding Notes .........................................37
SECTION 2.09. Treasury Notes ...........................................37
SECTION 2.10. Temporary Notes ...........................................37
SECTION 2.11. Cancellation ..............................................38
SECTION 2.12. Defaulted Interest.........................................38
SECTION 2.13. CUSIP Number ..............................................38
SECTION 2.14. Deposit of Moneys .........................................38
SECTION 2.15. Issuance of Additional Notes...............................39
ARTICLE THREE REDEMPTION
SECTION 3.01. Notices to Trustee ........................................39
SECTION 3.02. Selection of Notes To Be Redeemed ........................40
SECTION 3.03. Notice of Redemption .....................................40
SECTION 3.04. Effect of Notice of Redemption ...........................41
SECTION 3.05. Deposit of Redemption Price ...............................41
SECTION 3.06. Notes Redeemed in Part ....................................42
SECTION 3.07. Optional Redemption ......................................42
ARTICLE FOUR COVENANTS
SECTION 4.01. Payment of Notes .........................................42
SECTION 4.02. Maintenance of Office or Agency ..........................43
SECTION 4.03. Corporate Existence ......................................43
SECTION 4.04. Payment of Taxes and Other Claims..........................43
SECTION 4.05. Maintenance of Properties and Insurance ...................43
SECTION 4.06. Compliance Certificate; Notice of Default .................44
SECTION 4.07. Compliance with Laws ......................................45
SECTION 4.08. SEC Reports ...............................................45
SECTION 4.09. Waiver of Stay, Extension or Usury Laws ...................45
SECTION 4.10. Limitation on Restricted Payments..........................46
SECTION 4.11. Limitation on Restrictions on Distributions from
Restricted Subsidiaries ..................................47
SECTION 4.12. Limitation on Affiliate Transactions ......................48
SECTION 4.13. Limitation on Indebtedness.................................49
SECTION 4.14. Limitation on the Sale or Issuance of Capital Stock
of Restricted Subsidiaries ................................51
SECTION 4.15. Limitation on Other Senior Subordinated Indebtedness ......51
SECTION 4.16. Change of Control .........................................51
SECTION 4.17. Limitation on Sales of Assets and Subsidiary Stock ........53
SECTION 4.18. Limitation on Indebtedness and Preferred Stock of
Restricted Subsidiaries ...................................55
SECTION 4.19. Limitation on Liens Securing Subordinated Indebtedness.....56
SECTION 4.20. Future Subsidiary Guarantors .............................57
SECTION 4.21. Limitation on Designations of Unrestricted Subsidiaries....57
SECTION 4.22. Limitation on Lines of Business ...........................58
ARTICLE FIVE SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets of the Company....59
SECTION 5.02. Successor Corporation Substituted for the Company .........59
SECTION 5.03. Merger, Consolidation and Sale of Assets of Any
Subsidiary Guarantor .....................................60
SECTION 5.04. Successor Corporation Substituted for Subsidiary Guarantor.60
ARTICLE SIX DEFAULT AND REMEDIES
SECTION 6.01. Events of Default .........................................61
SECTION 6.02. Acceleration .............................................62
SECTION 6.03. Other Remedies ............................................63
SECTION 6.04. Waiver of Past Defaults....................................63
SECTION 6.05. Control by Majority .......................................63
SECTION 6.06. Limitation on Suits .......................................64
SECTION 6.07. Rights of Holders To Receive Payment ......................64
SECTION 6.08. Collection Suit by Trustee.................................64
SECTION 6.09. Trustee May File Proofs of Claim ..........................64
SECTION 6.10. Priorities ................................................65
SECTION 6.11. Undertaking for Costs .....................................65
ARTICLE SEVEN TRUSTEE
SECTION 7.01. Duties of Trustee .........................................66
SECTION 7.02. Rights of Trustee .........................................67
SECTION 7.03. Individual Rights of Trustee .............................68
ii
SECTION 7.04. Trustee's Disclaimer ......................................68
SECTION 7.05. Notice of Default .........................................68
SECTION 7.06. Reports by Trustee to Holders .............................69
SECTION 7.07. Compensation and Indemnity.................................69
SECTION 7.08. Replacement of Trustee .................................70
SECTION 7.09. Successor Trustee by Merger, Etc...........................71
SECTION 7.10. Eligibility; Disqualification .............................71
SECTION 7.11. Preferential Collection of Claims Against Company..........71
ARTICLE EIGHT DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Discharge of Liability on Notes; Defeasance ...............72
SECTION 8.02. Conditions to Defeasance .................................72
SECTION 8.03. Application of Trust Money.................................74
SECTION 8.04. Repayment to Company ......................................74
SECTION 8.05. Indemnity for Government Obligations ......................74
SECTION 8.06. Reinstatement ............................................75
ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.................................75
SECTION 9.02. With Consent of Holders .................................76
SECTION 9.03. Effect on Senior Indebtedness .............................77
SECTION 9.04. Compliance with TIA .......................................77
SECTION 9.05. Revocation and Effect of Consents ........................77
SECTION 9.06. Notation on or Exchange of Notes ........................78
SECTION 9.07. Trustee To Sign Amendments, Etc ...........................78
SECTION 9.08. Payment for Consent .......................................78
ARTICLE TEN SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Indebtedness .................78
SECTION 10.02. No Payment on Notes in Certain Circumstances...............79
SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc.............81
SECTION 10.04. Payments May Be Paid Prior to Dissolution .................82
SECTION 10.05. Subrogation ...............................................82
SECTION 10.06. Obligations of the Company Unconditional ..................83
SECTION 10.07. Notice to Trustee .........................................83
SECTION 10.08. Reliance on Judicial Order or Certificate of
Liquidating Agent .........................................83
SECTION 10.09. Trustee's Relation to Senior Indebtedness .................84
SECTION 10.10. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders
of Senior Indebtedness.....................................84
SECTION 10.11. Noteholders Authorize Trustee To Effectuate
Subordination of Notes ....................................85
SECTION 10.12. This Article Ten Not To Prevent Events of Default..........85
SECTION 10.13. Trustee's Compensation Not Prejudiced .....................85
SECTION 10.14. Acceleration of Payment of Notes ..........................86
iii
ARTICLE ELEVEN GUARANTEES
SECTION 11.01. Unconditional Guarantee ...................................86
SECTION 11.02. Subordination of Subsidiary Guarantee .....................87
SECTION 11.03. Severability .............................................87
SECTION 11.04. Release of Subsidiary Guarantor from the Subsidiary
Guarantee .................................................87
SECTION 11.05. Limitation on Amount Guaranteed; Contribution by
Subsidiary Guarantors......................................87
SECTION 11.06. Waiver of Subrogation .....................................89
SECTION 11.07. Execution of Subsidiary Guarantee ........................89
SECTION 11.08. Waiver of Stay, Extension or Usury Laws ...................90
SECTION 11.09. Effectiveness of Subsidiary Guarantee .....................90
ARTICLE TWELVE SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Subsidiary Guarantee Obligations Subordinated to
Senior Indebtedness of Subsidiary Guarantors ..............90
SECTION 12.02. No Payment on Notes in Certain Circumstances...............91
SECTION 12.03. Payment Over of Proceeds upon Dissolution, Etc.............93
SECTION 12.04. Payments May Be Paid Prior to Dissolution .................94
SECTION 12.05. Subrogation .............................................94
SECTION 12.06. Obligations of Subsidiary Guarantor Unconditional..........95
SECTION 12.07. Notice to Trustee .........................................95
SECTION 12.08. Reliance on Judicial Order or Certificate of
Liquidating Agent .........................................96
SECTION 12.09. Trustee's Relation to Subsidiary Guarantor's
Senior Indebtedness .....................................96
SECTION 12.10. Subordination Rights Not Impaired by Acts or Omissions
of Subsidiary Guarantors or Holders of Subsidiary
Guarantors' Senior Indebtedness ..........................97
SECTION 12.11. Noteholders Authorize Trustee To Effectuate
Subordination of Notes ...................................97
SECTION 12.12. This Article Twelve Not To Prevent Events of Default ......98
ARTICLE THIRTEEN MISCELLANEOUS
SECTION 13.01. TIA Controls ...........................................98
SECTION 13.02. Notices ..................................................98
SECTION 13.03. Communications by Holders with Other Holders ..............99
SECTION 13.04. Certificate and Opinion as to Conditions Precedent ........99
SECTION 13.05. Statements Required in Certificate or Opinion.............100
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar ................100
SECTION 13.07. Legal Holidays ........................................100
SECTION 13.08. Governing Law ........................................101
SECTION 13.09. No Adverse Interpretation of Other Agreements ............101
SECTION 13.10. No Recourse Against Others................................101
SECTION 13.11. Successors ...............................................101
SECTION 13.12. Duplicate Originals ......................................101
SECTION 13.13. Severability ............................................101
iv
Signatures ................................................................104
Appendix ..................................................................I
Exhibit A - Form of Initial Note and Guarantee .............................A-1
Exhibit B - Form of Exchange Note and Private Exchange Note and Guarantee...B-1
Exhibit C - Form of Certificate of Transfer ................................C-1
Exhibit D - Form of Certificate of Exchange ................................D-1
Exhibit E - Form of Certificate of Acquiring of Institutional
Accredited Investor ............................................E-1
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
this Indenture.
v
<page>
INDENTURE, dated as of November 25, 2003, among TEREX CORPORATION, a Delaware
corporation (the "Company"), KOEHRING CRANES, INC., a Delaware corporation,
PAYHAULER CORP., an Illinois corporation, PPM CRANES, INC., a Delaware
corporation, TEREX CRANES, INC., a Delaware corporation, TEREX-RO CORPORATION, a
Kansas corporation, TEREX-TELELECT, INC., a Delaware corporation, THE AMERICAN
CRANE CORPORATION, a North Carolina corporation, O&K ORENSTEIN & KOPPEL, INC., a
Delaware corporation, AMIDA INDUSTRIES, INC., a South Carolina corporation,
CEDARAPIDS, INC., an Iowa corporation, STANDARD HAVENS, INC., a Delaware
corporation, STANDARD HAVENS PRODUCTS, INC., a Delaware corporation, BL-PEGSON
(USA), INC., a Connecticut corporation, BENFORD AMERICA, INC., a Delaware
corporation, COLEMAN ENGINEERING, INC., a Tennessee corporation, EARTHKING,
INC., a Delaware corporation, FINLAY HYDRASCREEN USA, INC., a New Jersey
corporation, POWERSCREEN HOLDINGS USA, INC., a Delaware corporation, POWERSCREEN
INTERNATIONAL LLC, a Delaware limited liability company, POWERSCREEN NORTH
AMERICA INC., a Delaware corporation, POWERSCREEN USA, LLC, a Kentucky limited
liability company, ROYER INDUSTRIES, INC., a Pennsylvania corporation, TEREX
BARTELL, INC., a Delaware corporation, TEREX MINING EQUIPMENT, INC., a Delaware
corporation, CMI TEREX CORPORATION, an Oklahoma corporation, CMI DAKOTA COMPANY,
a South Dakota corporation; CMIOIL CORPORATION, an Oklahoma corporation; FUCHS
TEREX, INC., a Delaware corporation; GENIE ACCESS SERVICES, INC., a Washington
corporation; GENIE CHINA, INC., a Washington corporation; GENIE FINANCIAL
SERVICES, INC., a Washington corporation; GENIE HOLDINGS, INC., a Washington
corporation; GENIE INDUSTRIES, INC., a Washington corporation; GENIE
INTERNATIONAL, INC., a Washington corporation; GENIE MANUFACTURING, INC., a
Washington corporation; GFS COMMERCIAL LLC, a Washington limited liability
company; GFS NATIONAL, INC., a Washington corporation; GO CREDIT CORPORATION, a
Washington corporation; LEASE SERVICING & FUNDING CORP., a Washington
corporation; PRODUCT SUPPORT, INC., an Oklahoma corporation; SCHAEFF
INCORPORATED, an Iowa corporation; SPINNAKER INSURANCE COMPANY, a Vermont
corporation; TELELECT SOUTHEAST DISTRIBUTION, INC., a Tennessee corporation;
TEREX ADVANCE MIXER, INC., a Delaware corporation; TEREX FINANCIAL SERVICES,
INC., a Delaware corporation; TEREX UTILITIES, INC., a Delaware corporation;
TEREX UTILITIES SOUTH, INC., a Delaware corporation; and UTILITY EQUIPMENT,
INC., an Oregon corporation (the "Subsidiary Guarantors"), and HSBC BANK USA, a
New York banking corporation, as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of $300,000,000
7-3/8% Senior Subordinated Notes due 2014 in the form of Initial Notes (as
defined below) and, if and when issued in connection with a registered exchange
for such Initial Notes, 7-3/8% Senior Subordinated Notes due 2014 in the form of
Exchange Notes (as defined below) and, if and when issued in connection with a
private exchange for such Initial Notes, 7-3/8% Senior Subordinated Private
Exchange Notes due 2014 in the form of Private Exchange Notes (as defined
below), and such Additional Notes (as defined below) that the Company may from
time to time choose to issue pursuant to the Indenture, and, to provide
therefor, the Company and each of the Subsidiary Guarantors has duly authorized
the execution and delivery of this Indenture. The Subsidiary Guarantors have
agreed to guarantee the Notes on a senior subordinated basis.
Each party hereto agrees as follows for the benefit of each other party and
for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries (the "Acquired Person") (i) existing at the time such Person
becomes a Restricted Subsidiary of the Company or at the time it merges or
consolidates with the Company or any of its Restricted Subsidiaries or (ii)
assumed in connection with the acquisition of assets from such Person.
"Additional Notes" means, subject to the Company's compliance with Section
4.13, any other 7-3/8% Senior Subordinated Notes due 2014 issued from time to
time after November 25, 2003 under the terms of this Indenture (other than
pursuant to Section 2.07, 2.10, 3.06, 4.16, 4.17 or 9.06 of this Indenture or
Section 2.3 of the Appendix and other than Exchange Notes or Private Exchange
Notes issued pursuant to an exchange offer for other Notes outstanding under
this Indenture).
"Adjusted Maximum Amount" has the meaning provided in Section 11.05.
"Affiliate" of any specified Person means (i) any other Person which,
directly or indirectly, is in control of, is controlled by or is under common
control with such specified Person or (ii) any other Person who is a director or
officer (A) of such specified Person, (B) of any subsidiary of such specified
Person or (C) any Person described in clause (i) above. For purposes of this
definition, control of a Person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such Person whether 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.
"Aggregate Payments" has the meaning provided in Section 11.05.
"Asset Disposition" means any sale, lease, transfer, conveyance or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger or consolidation (each referred to for the purposes of this definition
as a "disposition"), of (i) any shares of Capital Stock of a Restricted
Subsidiary (other than directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a Restricted
Subsidiary), (ii) all or substantially all the assets of any division or line of
business of the Company or any Restricted Subsidiary or (iii) any other assets
of the Company or any Restricted Subsidiary outside of the ordinary course of
business of the Company or such Restricted Subsidiary (other than, in the case
of (i), (ii) and (iii) above, a disposition by a Restricted Subsidiary to the
Company or by the Company or a Restricted Subsidiary to a Wholly Owned
Subsidiary;
2
provided, however, that each of (a) the consummation of any sale or series of
related sales of assets or properties of the Company and the Restricted
Subsidiaries by the Company and any Restricted Subsidiaries having an aggregate
fair market value of less than $1 million in any fiscal year and (b) the
discounting of accounts receivable or the sale of inventory, in each case in the
ordinary course of business, shall not be deemed an Asset Disposition.
"Authenticating Agent" has the meaning provided in Section 2.02.
"Average Life" means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the sum
of the products of numbers of years from the date of determination to the dates
of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (ii) the sum of all such payments.
"Bank Indebtedness" means (i) the Indebtedness outstanding or arising under
the Credit Facility up to a maximum principal amount of $950 million, (ii) all
obligations and other amounts owing to the holders of such Indebtedness or any
agent or representative thereof outstanding or arising under the Credit Facility
(including, but not limited to, interest (including interest accruing on or
after the filing of any petition in bankruptcy, reorganization or similar
proceeding relating to the Company or any Restricted Subsidiary, whether or not
a claim for such interest is allowed in such proceeding), fees, charges,
indemnities, expense reimbursement obligations and other claims under the Credit
Facility), and (iii) all Hedging Obligations arising in connection therewith
with any party to the Credit Facility.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal, state or
foreign law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligations" of a Person means any obligation which is
required to be classified and accounted for as a capital lease on the face of a
balance sheet of such Person prepared in accordance with GAAP; the amount of
such obligation shall be the capitalized amount thereof, determined 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, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated), including any Preferred Stock, but excluding
any debt securities convertible into or exchangeable for such equity.
3
"Cash Equivalents" means (i) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Rating Services or Moody's Investors
Service, Inc.; (iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Rating Services or at least P-1 from Moody's
Investors Service, Inc.; (iv) certificates of deposit or bankers' acceptances
maturing within one year from the date of acquisition thereof issued by (x) any
bank organized under the laws of the United States of America or any state
thereof or the District of Columbia or (y) a commercial banking institution
organized and located in a country recognized by the United States of America,
in each case having at the date of acquisition thereof combined capital and
surplus of not less than $200 million (or the foreign currency equivalent
thereof); (v) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (iv) above; (vi)
investments in money market funds which invest substantially all their assets in
securities of the types described in clauses (i) through (v) above; and (vii)
other short-term investments utilized by foreign Restricted Subsidiaries in
accordance with normal investment practices for cash management not exceeding
$1.0 million in aggregate principal amount outstanding at any time.
"Cash Flow" for any period means the Consolidated Net Income for such
period, plus the following (but without duplication) to the extent deducted in
calculating such Consolidated Net Income for such period: (i) income tax
expense, (ii) Consolidated Interest Expense, (iii) depreciation expense and
amortization expense, provided that consolidated depreciation and amortization
expense of a Subsidiary that is not a Wholly Owned Subsidiary shall only be
added to the extent of the equity interest of the Company in such Subsidiary and
(iv) all other non-cash charges (other than any recurring non-cash charges to
the extent such charges represent an accrual of or reserve for cash expenditures
in any future period). Notwithstanding clause (iv) above, there shall be
deducted from Cash Flow in any period any cash expended in such period that
funds a non-recurring, non-cash charge accrued or reserved in a prior period
which was added back to Cash Flow pursuant to clause (iv) in such prior period.
"Change of Control" means the occurrence of any of the following events:
(i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person shall be deemed to have beneficial ownership of all shares that such
Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
more than 40% of the total voting power of the Voting Stock of the Company,
whether as a result of issuance of securities of the Company, any merger,
consolidation, liquidation or dissolution of the Company, any direct or
indirect transfer of securities or otherwise.
4
(ii) (A) another corporation merges into the Company or the Company
consolidates with or merges into any other corporation, or (B) the Company
conveys, transfers or leases all or substantially all its assets (computed
on a consolidated basis) to any person or group, in one transaction or a
series of transactions other than any conveyance, transfer or lease between
the Company and a Wholly Owned Subsidiary of the Company, in each case in
one transaction or a series of related transactions with the effect that
either (x) immediately after such transaction any person or entity or group
(as so defined) of persons or entities (other than a Permitted Holder)
shall have become the beneficial owner of securities of the surviving
corporation of such merger or consolidation representing a majority of the
combined voting power of the outstanding securities of the surviving
corporation ordinarily having the right to vote in the election of
directors or (y) the securities of the Company that are outstanding
immediately prior to such transaction and which represent 100% of the
combined voting power of the securities of the Company ordinarily having
the right to vote in the election of directors are changed into or
exchanged for cash, securities or property, unless pursuant to such
transaction such securities are changed into or exchanged for, in addition
to any other consideration, securities of the surviving corporation that
represent immediately after such transaction, at least a majority of the
combined voting power of the securities of the surviving corporation
ordinarily having the right to vote in the election of directors; or
(iii) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of the
Company (together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Company was approved by a vote of 60% of the directors of the Company then
still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of Directors of
the Company then in office.
"Clearstream" means Clearstream societe anonyme, or any successor
securities clearing agent.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Agent" means Credit Suisse First Boston as collateral agent for
the lenders pursuant to the Amended and Restated Credit Agreement, dated July 3,
2002.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to this Indenture and thereafter means such successor.
"Consolidated Cash Flow Coverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount of Cash Flow for the period of the
most recent four consecutive fiscal quarters for which financial statements are
available to (ii) Consolidated Interest Expense for such four fiscal quarters;
provided, however, that (1) if the Company or any Restricted Subsidiary has
issued any Indebtedness since the beginning of such period that remains
outstanding or if the transaction giving rise to the need to calculate the
Consolidated Cash Flow Coverage Ratio is an issuance of Indebtedness, or both,
Cash Flow and Consolidated
5
Interest Expense for such period shall be calculated after giving effect on a
pro forma basis to such Indebtedness as if such Indebtedness had been issued on
the first day of such period and the discharge of any other Indebtedness repaid,
repurchased, defeased or otherwise discharged with the proceeds of such new
Indebtedness as if such discharge had occurred on the first day of such period,
(2) if since the beginning of such period the Company or any Restricted
Subsidiary shall have made any Asset Disposition, the Cash Flow for such period
shall be reduced by an amount equal to the Cash Flow (if positive) directly
attributable to the assets which are the subject of such Asset Disposition for
such period, or increased by an amount equal to the Cash Flow (if negative),
directly attributable thereto for such period, and Consolidated Interest Expense
for such period shall be reduced by an amount equal to the Consolidated Interest
Expense directly attributable to any Indebtedness of the Company or any
Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its continuing Restricted Subsidiaries in connection
with such Asset Dispositions for such period (or, if the Capital Stock of any
Restricted Subsidiary is sold, the Consolidated Interest Expense for such period
directly attributable to the Indebtedness of such Restricted Subsidiary to the
extent the Company and its continuing Restricted Subsidiaries are no longer
liable for such Indebtedness after such sale), (3) if since the beginning of
such period the Company or any Restricted Subsidiary (by merger or otherwise)
shall have made an Investment in any Restricted Subsidiary (or any Person which
becomes a Restricted Subsidiary) or an acquisition of assets (including Capital
Stock of a Subsidiary), including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder, Cash
Flow and Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the issuance of any Indebtedness) as
if such Investment or acquisition occurred on the first day of such period, and
(4) if since the beginning of such period any Person (that subsequently became a
Restricted Subsidiary or was merged with or into the Company or any Restricted
Subsidiary since the beginning of such period) shall have made any Asset
Disposition or any Investment that would have required an adjustment pursuant to
clause (2) or (3) above if made by the Company or a Restricted Subsidiary during
such period, Cash Flow and Consolidated Interest Expense for such period shall
be calculated after giving pro forma effect thereto as if such Asset Disposition
or Investment occurred on the first day of such period. For purposes of this
definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto, and the amount of
Consolidated Interest Expense associated with any Indebtedness issued in
connection therewith, the pro forma calculations shall be determined in good
faith by a responsible financial or accounting Officer of the Company. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest of such Indebtedness shall be calculated as if the average
interest rate for the period up to the date of determination had been the
applicable rate for the entire period (taking into account any Interest Rate
Protection Agreement applicable to such Indebtedness if such Interest Rate
Protection Agreement has a remaining term in excess of 12 months). For purposes
of this definition, whenever pro forma effect is to be given to any Indebtedness
Incurred pursuant to a revolving credit facility the amount outstanding under
such Indebtedness shall be equal to the average of the amount outstanding during
the period commencing on the first day of the first of the four most recent
fiscal quarters for which financial statements are available and ending on the
date of determination.
"Consolidated Interest Expense" means, for any period, the total interest
expense of the Company and its consolidated Restricted Subsidiaries, plus, to
the extent not included in
6
such interest expense but Incurred by the Company or its Restricted
Subsidiaries, (i) interest expense attributable to capital leases, (ii)
amortization of debt discount, (iii) capitalized interest, (iv) original issue
discount and non-cash interest payments or accruals, (v) commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, (vi) net costs under Hedging Obligations (including
amortization of fees), (vii) dividends in respect of all Disqualified Stock held
by Persons other than the Company, a Subsidiary Guarantor or a Wholly Owned
Subsidiary, (viii) interest Incurred in connection with investments in
discontinued operations, (ix) the interest portion of any deferred payment
obligations constituting Indebtedness, and (x) the cash contributions to any
employee stock ownership plan or similar trust to the extent such contributions
are used by such plan or trust to pay interest or fees to any Person (other than
the Company) in connection with Indebtedness Incurred by such plan or trust. For
purposes of this definition, interest expense attributable to any Indebtedness
represented by the guarantee (other than (a) Guarantees permitted by the terms
of clauses (b)(x) and (xi), respectively, of Sections 4.13 and 4.18 and (b)
Guarantees by the Company of Indebtedness of a consolidated Restricted
Subsidiary or by a consolidated Restricted Subsidiary of the Company or another
consolidated Restricted Subsidiary) by such person or a Subsidiary of such
person of an obligation of another person shall be deemed to be the interest
expense attributable to the Indebtedness guaranteed.
"Consolidated Net Income" means, for any period, the net income of the
Company and its consolidated Subsidiaries; provided, however, that there shall
not be included in such Consolidated Net Income:
(i) any net income of any Person if such Person is not a Restricted
Subsidiary, except that (A) the Company's equity in the net income of any
such Person for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such
Person during such period to the Company or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other
distribution to a Restricted Subsidiary, to the limitations contained in
clause (iii) below) and (B) the Company's equity in a net loss of any such
Person for such period shall be included in determining such Consolidated
Net Income;
(ii) any net income of any Person acquired by the Company or a
Subsidiary in a pooling of interests transaction for any period prior to
the date of such acquisition;
(iii) any net income of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Subsidiary,
directly or indirectly, to the Company, except that (A) the Company's
equity in the net income of any such Restricted Subsidiary for such period
shall be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Restricted Subsidiary during
such period to the Company or another Restricted Subsidiary as a dividend
or other distribution (subject, in the case of a dividend or other
distribution to another Restricted Subsidiary, to the limitation contained
in this clause) and (B) the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in determining such
Consolidated Net Income;
7
(iv) any gain or loss realized upon the sale or other disposition of
any property, plant or equipment of the Company or its consolidated
subsidiaries (including pursuant to any sale and leaseback arrangement)
which is not sold or otherwise disposed of in the ordinary course of
business and any gain or loss realized upon the sale or other disposition
of any Capital Stock of any Person;
(v) all extraordinary, unusual or non-recurring gains, and any
extraordinary or non-recurring loss as recorded on the statement of
operations in accordance with GAAP;
(vi) any goodwill impairment charge pursuant to Financial Accounting
Board Standards No. 142 recorded in the nine months ended September 30,
2003; and
(vii) the cumulative effect of a change in accounting principles.
"covenant defeasance option" has the meaning provided in Section 8.01.
"Credit Facility" means a collective reference to any term loan and
revolving credit facilities (including, but not limited to, the amended and
restated credit agreement dated July 3, 2002, by and among the Company, certain
of its subsidiaries and certain financial institutions), including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, as such credit facilities and/or related documents may be
further amended, restated, supplemented, renewed, replaced or otherwise modified
from time to time whether or not with the same agent, trustee, representative
lenders or holders, and irrespective of any changes in the terms and conditions
thereof. Without limiting the generality of the foregoing, the term "Credit
Facility" shall include agreements in respect of reimbursement of letters of
credit issued pursuant to the Credit Facility and agreements in respect of
Hedging Obligations with lenders party to the Credit Facility and shall also
include any amendment, amendment and restatement, renewal, extension,
restructuring, supplement or modification to any Credit Facility and all
refunding, refinancings (in whole or in part) and replacements of any Credit
Facility, including any agreement (i) extending the maturity of any Indebtedness
incurred thereunder or contemplated thereby, or (ii) adding or deleting
borrowers or guarantors thereunder, so long as borrowers and issuers include one
or more of the Company and its Restricted Subsidiaries and their respective
successors and assigns.
"Currency Agreement Obligations" means the obligations of any person under
a foreign exchange contract, currency swap agreement or other similar agreement
or arrangement to protect such person against fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator
or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
8
"Designated Senior Indebtedness" means (i) so long as any Bank Indebtedness
is outstanding, such Bank Indebtedness and (ii) provided no Bank Indebtedness is
outstanding (or if Bank Indebtedness is outstanding, to the extent permitted by
the terms of, or the lenders under, such Bank Indebtedness), any other Senior
Indebtedness of the Company permitted to be incurred under the Indenture which,
at the date of determination, has an aggregate principal amount outstanding of,
or under which, at the date of determination, the holders thereof are committed
to lend up to, at least $20 million and is specifically designated by the
Company in the instrument evidencing or governing such Senior Indebtedness as
"Designated Senior Indebtedness" for purposes of the Indenture.
"Disqualified Stock" means, with respect to any Person, any Capital Stock
which by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or upon the happening of any event (i) matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
prior to the 91st day after the Stated Maturity of the Notes, (ii) is
convertible or exchangeable for Indebtedness or Disqualified Stock prior to the
91st day after the Stated Maturity of the Notes or (iii) is redeemable at the
option of the holder thereof, in whole or in part on or prior to the 91st day
after the Stated Maturity of the Notes; provided, however, that any Capital
Stock that would not constitute Disqualified Stock but for provisions thereof
giving holders thereof the right to require such Person to repurchase or redeem
such Capital Stock upon the occurrence of an "asset sale" or "change of control"
occurring prior to the first anniversary of the Stated Maturity of the Notes
shall not constitute Disqualified Stock if the "asset sale" or "change of
control" provisions applicable to such Capital Stock are not more favorable to
the holders of such Capital Stock than the provisions described under Sections
4.17 and 4.16 below.
"Euroclear" means the Euroclear Clearance System or any successor clearing
agency.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute or statutes thereto.
"Exchange Notes" has the meaning provided in the Appendix.
"Existing Notes" means the Company's $200 million principal amount of
9-1/4% Senior Subordinated Notes due 2011 issued under the indenture dated
December 17, 2001, among the Company, the guarantors named therein and The Bank
of New York, as trustee, as such indenture may be amended or supplemented from
time to time; the Company's $150 million principal amount of 8-7/8% Senior
Subordinated Notes due 2008 issued under the indenture, dated March 31, 1998,
among the Company, the guarantors named therein and The Bank of New York (as
successor to United States Trust Company of New York), as trustee, as such
indenture may be amended or supplemented from time to time, the Company's $100
million principal amount of 8-7/8% Senior Subordinated Notes due 2008 issued
under the indenture, dated March 9, 1999, among the Company, the guarantors
named therein and The Bank of New York (as successor to United States Trust
Company of New York), as trustee, as such indenture may be amended or
supplemented from time to time, and the Company's $300 million principal amount
9
of 10-3/8% Senior Subordinated Notes due 2011 issued under the indenture, dated
March 29, 2001, among the Company, the guarantors named therein and The Bank of
New York (as successor to United States Trust Company of New York), as trustee,
as such indenture may be amended or supplemented from time to time.
"Existing Notes Indenture" means collectively, the indentures dated March
31, 1998, March 9, 1999, March 29, 2001, and December 17, 2001, among the
Company, the guarantors named therein and The Bank of New York (as successor to
United States Trust Company of New York), as trustee, providing for the issuance
of the Existing Notes, as such may be amended or supplemented from time to time.
"Fair Share" has the meaning provided in Section 11.05.
"Fair Share Shortfall" has the meaning provided in Section 11.05.
"Floor Plan Guarantees" means guarantees (including but not limited to
repurchase or remarketing obligations) by the Company or a Restricted Subsidiary
Incurred in the ordinary course of business consistent with past practice of
Indebtedness Incurred by a franchise dealer, or other purchaser or lessor, for
the purchase of inventory manufactured or sold by the Company or a Restricted
Subsidiary, the proceeds of which Indebtedness is used solely to pay the
purchase price of such inventory to such franchise dealer and any related
reasonable fees and expenses (including financing fees), provided, however, that
(1) to the extent commercially practicable, the Indebtedness so guaranteed is
secured by a perfected first priority Lien on such inventory in favor of the
holder of such Indebtedness and (2) if the Company or such Restricted Subsidiary
is required to make payment with respect to such guarantee, the Company or such
Restricted Subsidiary will have the right to receive either (q) title to such
inventory, (r) a valid assignment of a perfected first priority Lien in such
inventory or (s) the net proceeds of any resale of such inventory.
"Fraudulent Transfer Laws" has the meaning provided in Section 11.05.
"Funding Subsidiary Guarantor" has the meaning provided in Section 11.05.
"GAAP" means generally accepted accounting principles in the United States
of America on November 25, 2003, as defined in Statement on Auditing Standards
No. 69, including those 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.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing in any manner any Indebtedness or other
obligation of any Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such Person
(whether arising by virtue of partnership arrangements, or by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however,
10
that the term "Guarantee" shall not include endorsements of negotiable
instruments for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any interest rate swap agreement, foreign currency exchange
agreement, interest rate collar agreement, option or futures contract or other
similar agreement or arrangement designed to protect such Person against changes
in interest rates or foreign exchange rates.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Inactive Subsidiary" means a Subsidiary which at the time of determination
(i) owns assets having a fair market value of less than $50,000, (ii) does not
conduct any business activity and (iii) is not an obligor with respect to any
Indebtedness.
"Incur" means create, issue, assume, Guarantee, incur or otherwise become
liable for, directly or indirectly, or otherwise become responsible for,
contingently or otherwise, Indebtedness or Disqualified Stock; provided,
however, that any Indebtedness or Disqualified Stock of a Person existing at the
time such Person becomes a subsidiary (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at
the time it becomes a Subsidiary. The term "Incurrence" when used as a noun
shall have a correlative meaning.
"Indebtedness" of any Person means, without duplication, and whether or not
contingent,
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person;
(iii) all obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such Person
and all obligations of such Person under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of
business);
(iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction;
(v) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock
(measured at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends);
11
(vi) to the extent not otherwise included in this definition, all
Hedging Obligations;
(vii) all obligations of the type referred to in clauses (i) through
(v) of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee (other than in each case by reason of activities described in the
proviso to the definition of "Guarantee"); and
(viii) all obligations of the type referred to in clauses (i) through
(vii) of other Persons secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of
such property or assets or the amount of the obligation so secured.
For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture, and if such price is based
upon, or measured by, the fair market value of such Disqualified Stock, such
fair market value to be determined in good faith by the Board of Directors. For
purposes hereof, the amount of any Indebtedness issued with original issue
discount shall be the original purchase price plus accrued interest, provided,
however, that such accretion shall not be deemed an incurrence of Indebtedness.
"Indenture" means this instrument as originally executed, as it may be
amended or supplemented from time to time in accordance with the terms hereof.
"Initial Notes" has the meaning provided in the Appendix.
"Initial Purchasers" has the meaning provided in the Appendix.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Notes.
"Interest Rate Protection Agreement" means any interest rate swap
agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect the Company or any Restricted Subsidiary against
fluctuations in interest rates.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable or deposits on the balance sheet of the Person
making the advance or loan, in each case in accordance with GAAP) or other
extensions of credit (including by way of Guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person and shall include the designation of a
Restricted Subsidiary as an Unrestricted Subsidiary. For purposes of the
definition of "Unrestricted Subsidiary," the definition of "Restricted Payment"
12
and the covenant described under Section 4.10, (i) "Investment" shall include
the portion (proportionate to the Company's equity interest in such Subsidiary)
of the fair market value of the net assets of any Subsidiary of the Company at
the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to continue to have a permanent
investment in an Unrestricted Subsidiary in an amount (if positive) equal to (x)
the Company's "Investment" in such Subsidiary at the time of such redesignation
less (y) the portion (proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of such Subsidiary at the
time of such redesignation, and (ii) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at the time of
such transfer, in each case as determined in good faith by the Board of
Directors. Notwithstanding the foregoing, in no event shall any issuance of
Capital Stock (other than Preferred Stock or Disqualified Stock, or Capital
Stock exchangeable, exercisable or convertible for any of the foregoing) of the
Company in exchange for Capital Stock, property or assets of another Person
constitute an Investment by the Company in such Person.
"issue" means issue, assume, Guarantee, Incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be issued by such
Subsidiary at the time it becomes a Subsidiary; and the term "issuance" has a
corresponding meaning.
"Issue Date" means the date of original issuance of the Notes.
"legal defeasance option" has the meaning provided in Section 8.01.
"Legal Holiday" has the meaning provided in Section 13.07.
"Lien" means any mortgage, pledge, security interest, privilege,
conditional sale or other title retention agreement or other similar lien
(statutory or otherwise), or encumbrance upon or with respect to any property of
any kind, real or personal, moveable or immovable, now owned or hereafter
acquired.
"Maturity Date" means January 15, 2014.
"Net Available Cash" from an Asset Disposition means cash payments received
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or otherwise, but only as and when
received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Indebtedness or other obligations relating
to such properties or assets or received in any other non-cash form) therefrom,
in each case net of (i) all legal, title and recording tax expenses, commissions
and other fees and expenses Incurred, and all Federal, state, provincial,
foreign and local taxes required to be paid or accrued as a liability under
GAAP, as a consequence of such Asset Disposition, (ii) all payments made on any
Indebtedness which (A) is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any lien upon or other security
agreement of any kind with respect to such assets, or (B) which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law be repaid out of the
13
proceeds from such Asset Disposition, (iii) all distributions and other payments
required to be made to minority interest holders in Subsidiaries or joint
ventures as a result of such Asset Disposition and (iv) reasonable amounts
provided by the seller as a reserve, in accordance with GAAP, against any
liabilities associated with the property or other assets disposed of in such
Asset Disposition and retained by the Company or any Restricted Subsidiary after
such Asset Disposition, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Disposition. Further, with respect to an Asset Disposition by a
Subsidiary which is not a Wholly Owned Subsidiary, Net Available Cash shall be
reduced pro rata for the portion of the equity of such Subsidiary which is not
owned by the Company.
"Net Cash Proceeds," with respect to any issuance or sale of Capital Stock,
means the cash proceeds of such issuance or sale plus, in the case of an
issuance of Capital Stock upon any exercise, exchange or conversion of
securities (including options, warrants, rights and convertible exchangeable
debt), of the Company that were issued for cash on or after November 25, 2003,
the amount of cash originally received by the Company upon the issuance of such
securities (including options, warrants, rights and convertible or exchangeable
debt), net of attorneys' fees, accountants' fees, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultant and other fees
and expenses actually Incurred or required to be Incurred in connection with
such issuance or sale and also net of taxes paid or payable as a result thereof.
"Notes" means the Initial Notes, the Exchange Notes and the Private
Exchange Notes treated as a single class of securities, as amended or
supplemented from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture.
"Obligations" means with respect to any Indebtedness all obligations for
principal, premium, interest (including, without limitation, interest after the
commencement of any bankruptcy, reorganization, insolvency or similar proceeding
against the Company or any of its Subsidiaries, whether or not allowed in any
such proceeding), penalties, fees, indemnifications, reimbursements, and other
amounts payable pursuant to the documentation governing such Indebtedness.
"Offer" has the meaning provided in Section 4.17.
"Offer Amount" has the meaning provided in Section 4.17.
"Offer Period" has the meaning provided in Section 4.17.
"Offering Memorandum" means (i) with respect to the Initial Notes issued on
November 25, 2003, the Offering Circular dated November 10, 2003, pursuant to
which the $300 million of 7-3/8% Senior Subordinated Notes due 2014 in the form
of Initial Notes were offered, and any supplement thereto and (ii) with respect
to each issuance of Additional Notes, the offering circular, prospectus or other
similar offering document pursuant to which such Additional Notes were offered,
and any supplement thereto.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Controller,
14
the Treasurer, or the Secretary of such Person, or any other officer designated
by the Board of Directors serving in a similar capacity.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of such Person and otherwise complying with the requirements
of Sections 13.04 and 13.05, to the extent they relate to the making of an
Officers' Certificate. Officers' Certificate pursuant to Section 4.06 shall have
the principal executive, financial or accounting officer as one of the
signatories.
"Opinion of Counsel" means a written opinion from legal counsel, who may be
counsel for the Company, and who is reasonably acceptable to the Trustee
complying with the requirements of Sections 13.04 and 13.05, to the extent they
relate to the giving of an Opinion of Counsel.
"Paying Agent" has the meaning provided in Section 2.03.
"Payment Blockage Period" has the meanings provided in Sections 10.02 and
12.02.
"Permitted Investment" means an Investment by the Company or any Restricted
Subsidiary in (i) the Company, a Restricted Subsidiary or a Person that will,
upon the making of such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is a Related
Business; (ii) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is a Related Business;
(iii) Investments in Cash Equivalents; (iv) receivables owing to the Company or
any Restricted Subsidiary if created or acquired in the ordinary course of
business; (v) loans or advances to employees made in the ordinary course of
business consistent with past practices of the Company or such Restricted
Subsidiary; (vi) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary or in satisfaction of judgments; (vii) any Person to the
extent such Investment represents the non-cash portion of the consideration
received for an Asset Disposition as permitted pursuant to the covenant
described under Section 4.17; (viii) so long as no Default has occurred and is
continuing (or would result therefrom), any Investment made by the issuance of,
or with the proceeds of a substantially concurrent sale of, Capital Stock (other
than Disqualified Stock) of the Company; provided, however, that the Net Cash
Proceeds from such sale shall be excluded from clause 3(B) of paragraph (a) of
the covenant described under Section 4.10; (ix) Investments by the Company or
any Restricted Subsidiary, in an aggregate amount not to exceed $3 million, in
an Unrestricted Subsidiary formed primarily for the purposes of financing
purchases and leases of inventory manufactured by the Company or any Restricted
Subsidiary; (x) Floor Plan Guarantees permitted by the terms of clauses (b)(x)
and (xi), respectively, of the covenants described under Section 4.13 and
Section 4.18; (xi) Investments in joint ventures in Related Businesses not to
exceed $75 million at any time outstanding; and (xii) other Investments that do
not exceed in the aggregate $50 million at any one time outstanding.
15
"Permitted Liens" means, with respect to any Person, (a) pledges or
deposits by such Person under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Indebtedness) or leases
to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits or cash or United States government bonds
to secure surety or appeal bonds to which such Person is a party, or deposits as
security for contested taxes or import duties or for the payment of rent, in
each case Incurred in the ordinary course of business; (b) Liens imposed by law,
including carriers', warehousemen's and mechanics' Liens, in each case for sums
not yet due or being contested in good faith by appropriate proceedings; or
other Liens arising out of judgments or awards against such Person with respect
to which such Person shall then be proceeding with an appeal or other
proceedings for review; (c) Liens for taxes, assessments or other governmental
charges not yet subject to penalties for non-payment or which are being
contested in good faith by appropriate proceedings provided appropriate reserves
have been taken on the books of the Company; (d) Liens to secure the performance
of statutory obligations or in favor of issuers of surety bonds, performance
bonds, appeal bonds or letters of credit or other obligations of a like nature
issued pursuant to the request of and for the account of such Person, in each
case in the ordinary course of its business; provided, however, that such
letters of credit do not constitute Indebtedness; (e) Liens securing a Hedging
Obligation so long as the related Indebtedness is, and is permitted to be under
the Indenture, secured by a Lien on the same property securing the Hedging
Obligation; (f) Liens for the purpose of securing the payment (or the
refinancing of the payment) of all or a part of any Purchase Money Indebtedness
or Capital Lease Obligations relating to assets or property acquired,
constructed or leased in the ordinary course of business provided that (x) the
aggregate principal amount of Indebtedness secured by such Liens shall not
exceed the cost of the assets or property so acquired or constructed and (y)
such Liens shall not encumber any other assets or property of the Company or any
Restricted Subsidiary other than such Assets or property and assets affixed or
appurtenant thereto; (g) Liens arising from precautionary Uniform Commercial
Code financing statement filings regarding operating leases entered into by the
Company and its Subsidiaries in the ordinary course of business; (h) Liens in
favor of the Company and/or any of its Restricted Subsidiaries, other than such
a Lien with respect to intercompany indebtedness if the Company or a Subsidiary
Guarantor is not the beneficiary of such a Lien; (i) Liens securing Indebtedness
of a Person existing at the time that such Person is acquired by, merged into or
consolidated with the Company or any Restricted Subsidiary; provided, however,
that such Liens were not incurred in connection with, or in contemplation of,
such acquisition, merger or consolidation, and do not extend to any property or
assets other than those of such Person; (j) Liens on property or assets existing
at the time of acquisition thereof by the Company or any Restricted Subsidiary;
provided, however, that such Liens were not incurred in connection with, or in
contemplation of, such acquisition, and do not extend to any other property or
assets; (k) Liens existing on November 25, 2003; (l) Liens arising from the
rendering of a final judgment or order against the Company or any Restricted
Subsidiary that does not give rise to an Event of Default; (m) encumbrances
consisting of zoning restrictions, surety exceptions, utility easements,
licenses, rights of way, easements of ingress or egress over property of the
Company or any Restricted Subsidiary, rights or restrictions of record on the
use of real property, minor defects in title, landlords' and lessors' liens
under leases on property located on the rented premises, in each case not
interfering in any material respect with the ordinary conduct of the business of
the Company and the Restricted Subsidiaries; (n) Liens securing Senior
Indebtedness; (o) Liens with
16
respect to Floor Plan Guarantees permitted by the terms of clauses (b)(x) and
(xi), respectively, of the covenants described under Section 4.13 and Section
4.18; and (p) any extension, renewal, refinancing, refunding or replacement of
any Permitted Lien, provided that such new Lien is limited to the property or
assets that secured (or under the arrangement under which the original Permitted
Lien, could secure) the obligations to which such Liens relate.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over shares
of Capital Stock of any other class of such Person.
"principal" of any Indebtedness (including the Notes) means the principal
amount of such Indebtedness plus the premium, if any, on such Indebtedness.
"Private Exchange Notes" has the meaning provided in the Appendix.
"pro forma" means, with respect to any calculation made or required to be
made pursuant to the terms of this Indenture, a calculation in accordance with
Article 11 of Regulation S-X under the Securities Act, as determined by the
Board of Directors of the Company.
"Public Equity Offering" means an underwritten primary or combined primary
and secondary public offering of common stock (other than Disqualified Stock) of
the Company pursuant to an effective registration statement under the Securities
Act which public equity offering results in gross proceeds to the Company of not
less than $50 million.
"Purchase Date" has the meaning provided in Section 4.17.
"Purchase Money Indebtedness" means any Indebtedness of a Person to any
seller or other Person incurred to finance the acquisition (including in the
case of a Capital Lease Obligation, the lease) of any after acquired real or
personal tangible property or assets related to the Business of the Company or
the Restricted Subsidiaries and which is incurred substantially concurrently
with such acquisition and is secured only by the assets so financed.
"Record Date" means each Record Date specified in the Notes, whether or not
a Legal Holiday.
"Redemption Date," when used with respect to any Note to be redeemed, means
the date fixed for such redemption pursuant to this Indenture and the Notes.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price fixed for such redemption pursuant to this Indenture and the
Notes.
"Refinance" means, in respect of any Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or
17
replacement for, such indebtedness. "Refinanced" and "Refinancing" shall have
correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on November
25, 2003 or Incurred in compliance with the Indenture, including Indebtedness
that Refinances Refinancing Indebtedness; provided, however, that (i) such
Refinancing Indebtedness has a Stated Maturity no earlier than the earlier of
(x) the Stated Maturity of the Indebtedness being Refinanced and (y) the Stated
Maturity of the Notes, (ii) such Refinancing Indebtedness has an Average Life at
the time such Refinancing Indebtedness is Incurred that is equal to or greater
than the Average Life of the Indebtedness being Refinanced and (iii) such
Refinancing Indebtedness has an aggregate principal amount (or if Incurred with
original issue discount, an aggregate issue price) that is equal to or less than
the aggregate principal amount (or if Incurred with original issue discount, the
aggregate accreted value) then outstanding or committed (plus unpaid accrued
interest) under the Indebtedness being Refinanced, plus actual fees and expenses
Incurred in connection with the Refinancing; provided, further, however, that
(x) Refinancing Indebtedness shall not include (1) Indebtedness of a Subsidiary
that is not a Wholly Owned Subsidiary or a Subsidiary Guarantor that Refinances
Indebtedness of the Company or (2) Indebtedness of the Company or a Restricted
Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary, (y) if
the Indebtedness being Refinanced is not Senior Indebtedness, then such
Refinancing Indebtedness shall rank no more senior than, and shall be at least
as subordinated in right of payment, to the Notes as the Indebtedness being
Refinanced and (z) Refinancing Indebtedness shall be secured only by assets of a
similar type and in a similar amount to those that secured the Indebtedness so
refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" has the meaning set forth in the Appendix.
"Regulation S" means Regulation S under the Securities Act.
"Related Business" means any business which is the same, similar, or
otherwise reasonably related, ancillary or complementary to the businesses in
which the Company and the Restricted Subsidiaries are engaged on November 25,
2003 (it being understood that the Company and its Restricted Subsidiaries are
currently engaged in the business of manufacturing, renting, assembling, selling
and distributing industrial and commercial equipment).
"Representative" means the indenture trustee or other trustee, agent or
representative in respect of any Designated Senior Indebtedness; provided that
if, and for so long as, any Designated Senior Indebtedness lacks such a
representative, then the Representative for such Designated Senior Indebtedness
shall at all times be the holders of a majority in outstanding principal amount
of such Designated Senior Indebtedness in respect of any Designated Senior
Indebtedness.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payment" has the meaning provided in Section 4.10.
18
"Restricted Subsidiary" means any Subsidiary of the Company that is not an
Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of a Person secured by a
Lien.
"Securities Act" means, the Securities Act of 1933, as amended, or any
successor statute or statutes thereto.
"Senior Credit Facility Representative" means, at any time, the then-acting
administrative agent or agents under the Credit Facility, which shall initially
be Credit Suisse First Boston.
"Senior Indebtedness" means with respect to the Company or any Subsidiary
Guarantor (x) Bank Indebtedness and (y) any other Indebtedness that, by the
terms of the instrument creating or evidencing such Indebtedness, is expressly
made senior in right of payment to the Notes or the applicable Guarantee, other
than (1) any obligation of such Person to any subsidiary of such Person or to
any officer, director or employee of such Person or any such subsidiary, (2) any
liability of such Person for federal, state, local or other taxes owed or owing
by such Person, (3) any accounts payable or other liability of such Person to
trade creditors arising in the ordinary course of business (including Guarantees
thereof or instruments evidencing such liabilities), (4) any Indebtedness,
Guarantee or obligation of such Person which is, expressly by its terms,
subordinate or junior in any respect to any other Indebtedness, Guarantee or
obligation of such Person, (5) that portion of any Indebtedness of such Person
which at the time of issuance is issued in violation of the Indenture, (6)
Indebtedness of such Person represented by Disqualified Stock or (7) Capital
Lease Obligations.
"Senior Subordinated Indebtedness" means the Notes and any other
Indebtedness of the Company that specifically provides that such Indebtedness is
to rank pari passu with the Notes in right of payment and is not subordinated by
its terms in right of payment to any Indebtedness or other obligation of the
Company which is not Senior Indebtedness.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the final date
specified in such security as the fixed date on which all outstanding principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the Company or any
Subsidiary Guarantor (whether outstanding on November 25, 2003 or thereafter
Incurred) which
19
is subordinate or junior in right of payment to the Notes or the relevant
Subsidiary Guarantee, as applicable, pursuant to a written agreement to that
effect.
"Subsidiary" means (a) any corporation, association, partnership, limited
liability company or other business entity of which more than 50% of the total
voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) the Company,
(ii) the Company and one or more Subsidiaries or (iii) one or more Subsidiaries
or (b) any limited partnership of which the Company or any Subsidiary is a
general partner, or (c) any other Person (other than a corporation or limited
partnership) in which the Company, or one or more other Subsidiaries or the
Company and one or more other Subsidiaries, directly or indirectly, has more
than 50% of the outstanding partnership or similar interests or has the power,
by contract or otherwise, to direct or cause the direction of the policies,
management and affairs thereof. Unless the context other wise requires,
Subsidiary means each direct and indirect Subsidiary of the Company.
"Subsidiary Guarantee" means a Guarantee by a Subsidiary Guarantor of the
Company's Obligations with respect to the Notes.
"Subsidiary Guarantee Obligations" has the meaning provided in Section
12.01.
"Subsidiary Guarantor" means any Subsidiary that Guarantees the Company's
Obligations with respect to the Notes.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C. Sections
77aaa-77bbbb), as in effect on the date of this Indenture; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"TIA" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trust Officer" means any authorized officer of the Trustee assigned by the
Trustee to administer this Indenture, or in the case of a successor trustee, an
authorized officer assigned to the department, division or group performing the
corporation trust work of such successor and assigned to administer this
Indenture.
"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 Subsidiary" means any Subsidiary of the Company (other than a
Subsidiary Guarantor) designated as such pursuant to and in compliance with
Section 4.21." Any such designation may be revoked by a resolution of the Board
of Directors of the Company delivered to the Trustee, subject to the provisions
of such covenant.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
20
"U.S. Legal Tender" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Voting Stock" of a Person means Capital Stock of such Person of the class
or classes pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Wholly Owned Subsidiary" means (i) a Restricted Subsidiary all the Capital
Stock of which (other than directors' qualifying shares and shares held by other
Persons to the extent such Shares are required by applicable law to be held by a
Person other than the Company or a Restricted Subsidiary) is owned by the
Company or one or more Wholly Owned Subsidiaries and (ii) P.P.M. S.A.S., and any
future wholly owned subsidiaries of P.P.M. S.A.S. so long as the Company or one
or more Wholly Owned Subsidiaries maintains a percentage ownership interest in
such entity equal to or greater than such ownership interest (on a fully diluted
basis) on the later of (a) November 25, 2003 or (b) the date such entity is
incorporated or acquired by the Company or one or more Wholly Owned
Subsidiaries.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in, and made a part of, this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a Noteholder.
"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 Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP as in effect on November 25, 2003;
21
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) "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; and
(6) reference to Sections or Articles means reference to such Section or
Article in this Indenture, unless stated otherwise.
SECTION 1.04. One Class of Securities.
The Initial Notes, the Private Exchange Notes and the Exchange Notes shall
vote and consent together on all matters as one class and none of the Initial
Notes, the Private Exchange Notes or the Exchange Notes shall have the right to
vote or consent as a separate class on any matter.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
(a) Provisions relating to the Initial Notes, the Private Exchange Notes
and the Exchange Notes are set forth in the Rule 144A/Regulation S Appendix
attached hereto (the "Appendix"), which is hereby incorporated in and expressly
made a part of this Indenture. The Initial Notes and the Trustee's certificate
of authentication shall be substantially in the form of Exhibit A hereto. The
Exchange Notes, the Private Exchange Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit B hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange
rule, agreements to which the Company is subject, if any, or depositary rule or
usage. The Company shall approve the forms of the Notes and any notation, legend
or endorsement on them. Each Note shall be dated the date of its issuance and
shall show the date of its authentication.
(b) The terms and provisions contained in the Appendix and in the forms of
the Notes, annexed hereto as Exhibits A and B, shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
(c) Euroclear and Clearstream Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream" and "Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in Global Notes that are held by participants
through Euroclear or Clearstream.
22
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount.
One Officer shall sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note was an Officer at the time of
such execution but no longer holds that office or position at the time the
Trustee authenticates the Note, the Note shall nevertheless be valid.
On November 25, 2003, the Trustee shall authenticate and deliver $300.0
million of 7-3/8% Senior Subordinated Notes due 2014 in the form of Initial
Notes in accordance with a written order of the Company in the form of an
Officers' Certificate. In addition, the Trustee shall authenticate Exchange
Notes and Private Exchange Notes, as applicable, for original issue in the
aggregate principal amount not to exceed $300.0 million, in each case upon a
written order of the Company in the form of an Officers' Certificate, provided
that such Exchange Notes and Private Exchange Notes shall be issuable only upon
the valid surrender for cancellation of such Initial Notes of a like aggregate
principal amount. Further, at any time and from time to time thereafter, the
Trustee shall authenticate and deliver Notes for original issue in an aggregate
principal amount specified, in each case in a written order of the Company in
the form of an Officers' Certificate. Such order shall specify the amount of the
Notes to be authenticated and the date on which the original issue of Notes is
to be authenticated and, in the case of an issuance of Additional Notes pursuant
to Section 2.15 after November 25, 2003, shall certify that such issuance will
not be prohibited by Section 4.13.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
At the expense of the Company, the Trustee may appoint an authenticating
agent (the "Authenticating Agent") reasonably acceptable to the Company to
authenticate Notes. Unless otherwise provided in the appointment, an
Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such Authenticating Agent. An Authenticating Agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Notes shall be issuable in fully registered form only, without coupons,
in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain or designate an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New York
and which may be the office of the Trustee) where (a) Notes may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Notes may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Registrar shall keep a register of the Notes and of
their registration of transfer and exchange. The Company may have one or more
co-
23
Registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional Paying Agent. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar, except that for purposes of Articles Three and
Eight and Sections 4.16 and 4.17, neither the Company nor any of its
Subsidiaries or Affiliates shall act as Paying Agent. The Company may change any
Paying Agent or Registrar without notice to any Holder.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture, which agreement shall incorporate the provisions
of the TIA and implement the provisions of this Indenture that relate to such
Agent. The Company shall notify the Trustee of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, or fails to
give the foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar, Paying Agent and
agent for service of demands and notices in connection with the Notes, until
such time as the Trustee has resigned or a successor has been appointed. The
Paying Agent or Registrar may resign upon 30 days notice to the Company.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that each Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, or interest on, the Notes (whether such assets have been
distributed to it by the Company or any other obligor on the Notes), and the
Company and the Paying Agent shall notify the Trustee of any Default by the
Company (or any other obligor on the Notes) in making any such payment. The
Company at any time may require a Paying Agent to distribute all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may, and
upon direction of a majority of the Holders shall, at any time during the
continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Company or any other obligor on the
Notes to the Paying Agent, the Paying Agent shall have no further liability for
such assets.
SECTION 2.05. Noteholder 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
the Holders, and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish or cause the Registrar to
furnish to the Trustee before each Record Date and at such other times as the
Trustee may request in writing a list as of such date and in such form as the
Trustee may reasonably require of the names and addresses of the Holders, which
list may be conclusively relied upon by the Trustee and the Company shall
otherwise comply with TIA Section 312(a).
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary
24
or any such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes shall be exchanged by the Company for a note in
definitive fully registered form, without interest coupons ("Certificated
Notes") if (i) the Company delivers to the Trustee notice from the Depositary
that it is unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either case,
a successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary or (ii) the Company in its sole
discretion determines that the Global Notes (in whole but not in part) should be
exchanged for Certificated Notes and delivers a written notice to such effect to
the Trustee. Upon the occurrence of either of the preceding events in (i) or
(ii) above, Certificated Notes shall be issued in such names as the Depositary
shall instruct the Trustee. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Global Note other than as
provided in this Section 2.06(a), although beneficial interests in a Global Note
may be transferred and exchanged as provided in Section 2.06(b), (c) or (d)
hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the requirements of the Depositary for such transaction
("Applicable Procedures"). Beneficial interests in the Restricted Global Notes
shall be subject to restrictions on transfer comparable to those set forth
herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or more of the
other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Global Note may not be made to a
U.S. Person or for the account or benefit of a U.S. Person (other than the
Initial Purchasers). Beneficial interests in any Exchange Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Exchange Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either: (A) (1) a
written order from a participant or an indirect participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the participant
account to be credited with such increase or (B) (1) a written order from a
25
participant or an indirect participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause
to be issued a Certificated Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Certificated Note shall be registered to effect the
transfer or exchange referred to in (B)(1) above. Upon consummation of an
Exchange Offer by the Company in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount of
the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee shall take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must
deliver a certificate in the form of Exhibit C hereto, including the
certifications in item (1) thereof; and
(B) if the transferee shall take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit C hereto,
including the certifications in item (2) thereof; and
(C) if the transferee shall take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit C hereto, including the
certifications in item (3) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Global Exchange Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in a Global Exchange Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in a Global Exchange Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
26
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in a Global Exchange Note, a
certificate from such holder in the form of Exhibit D hereto,
including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in a Global Exchange Note, a certificate
from such holder in the form of Exhibit D hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D),
if the Registrar or the Company so requests or if the
Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar or the Company,
if applicable 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 the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when a Global Exchange Note has not yet been issued, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee shall authenticate one or more Global Exchange Notes in
an aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in a Global Exchange Note cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form of, a beneficial
interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Certificated Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Certificated Notes. Restricted Global Notes and beneficial interests
therein shall be exchangeable for Certificated Notes if (i) the Depositary
(x) notifies the Company that it is unwilling or unable to continue as
depositary for the Restricted Global Notes and the Company thereupon fails
to appoint a successor depositary or (y) has ceased to be a clearing agency
registered under the Exchange Act and the Company fails to appoint a
successor, (ii) the Company, at its option, notifies the Trustee in writing
that it elects to cause the issuance
27
of the Certificated Notes or (iii) there shall have occurred and be
continuing a Default with respect to the Notes. In all cases, Certificated
Notes delivered in exchange for any Restricted Global Note or beneficial
interests therein shall be registered in the names, and issued in any
approved denominations, requested by or on behalf of the Depositary (in
accordance with the Applicable Procedures).
In such event, the Trustee shall cause the Restricted Global Notes to
be cancelled accordingly pursuant to Section 2.11 hereof, and the Company
shall execute and upon receipt of an Authentication Order the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Certificated Note in the appropriate principal amount. Any Certificated
Note issued in exchange for a beneficial interest in a Restricted Global
Note pursuant to this Section 2.06(c) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Registrar through instructions
from the Depositary and the participant or indirect participant. The
Trustee shall deliver such Certificated Notes to the Persons in whose names
such Notes are so registered. Any Certificated Note issued in exchange for
a beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c)(i) shall bear the Private Placement Legend and shall be subject to
all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to Certificated
Exchange Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Certificated Exchange
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Certificated Exchange Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3)
a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Certificated Note that does not bear the Private
Placement Legend, a certificate from such holder in the form of
Exhibit D hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery
28
thereof in the form of a Certificated Note that does not bear the
Private Placement Legend, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar or the Company so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar or the Company, if applicable 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 the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.
(iii) Beneficial Interests in Global Exchange Notes to Certificated
Exchange Notes. Global Exchange Notes and beneficial interests therein
shall be exchangeable for Certificated Exchange Notes if (i) the Depositary
(x) notifies the Company that it is unwilling or unable to continue as
depositary for the Global Exchange Notes and the Company thereupon fails to
appoint a successor depositary or (y) has ceased to be a clearing agency
registered under the Exchange Act and the Company fails to appoint a
successor, (ii) the Company, at its option, notifies the Trustee in writing
that it elects to cause the issuance of the Certificated Exchange Notes or
(iii) there shall have occurred and be continuing a Default with respect to
the Notes. In all cases, Certificated Exchange Notes delivered in exchange
for any Global Exchange Note or beneficial interests therein shall be
registered in the names, and issued in any approved denominations,
requested by or on behalf of the depositary (in accordance with the
Applicable Procedures). In such event, the Trustee shall cause the Global
Exchange Notes to be canceled accordingly pursuant to Section 2.11 hereof,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Certificated
Exchange Note in the appropriate principal amount. Any Certificated
Exchange Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the participant or indirect participant. The Trustee shall
deliver such Certificated Exchange Notes to the Persons in whose names such
Notes are so registered. Any Certificated Exchange Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(iii) shall not
bear the Private Placement Legend.
(d) Transfer and Exchange of Certificated Notes for Beneficial Interests.
(i) Restricted Certificated Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Certificated Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Certificated Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
29
(A) if the Holder of such Restricted Certificated Note proposes
to exchange such Note for a beneficial interest in a Restricted Global
Note, a certificate from such Holder in the form of Exhibit D hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Certificated Note is 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;
(C) if such Restricted Certificated Note is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the effect
set forth in Exhibit C hereto, including the certifications in item
(2) thereof;
(D) if such Restricted Certificated Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit C hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Certificated Note is being transferred to
an Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit C hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such Restricted Certificated Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit C hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Certificated Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit C hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Certificated Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case of
clause (B) above, the 144A Global Note, in the case of clause (C) above,
the Regulation S Global Note, and in all other cases, the IAI Global Note.
(ii) Restricted Certificated Notes to Beneficial Interests in
Global Exchange Notes. A Holder of a Restricted Certificated Note may
exchange such Note for a beneficial interest in a Global Exchange Note
or transfer such Restricted Certificated Note to a Person who takes
delivery thereof in the form of a beneficial interest in a Global
Exchange Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution
30
of the Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Certificated Notes proposes to
exchange such Notes for a beneficial interest in the Global
Exchange Note, a certificate from such Holder in the form of
Exhibit D hereto, including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Certificated Notes proposes to
transfer such Notes to a Person who shall take delivery thereof
in the form of a beneficial interest in the Global Exchange Note,
a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to
the Registrar 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
the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Certificated Notes and
increase or cause to be increased the aggregate principal amount of the Global
Exchange Note.
(iii) Certificated Exchange Notes to Beneficial Interests in
Global Exchange Notes. A Holder of an Certificated Exchange Note may
exchange such Note for a beneficial interest in a Global Exchange Note
or transfer such Certificated Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Global Certificated
Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Certificated
Exchange Note and increase or cause to be increased the aggregate
principal amount of one of the Global Exchange Notes.
If any such exchange or transfer from a Certificated Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D)
or (iii) above at a time when a Global Exchange Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Global Exchange Notes in an aggregate principal
amount equal to the principal amount of Certificated Notes so transferred.
(e) Transfer and Exchange of Certificated Notes for Certificated Notes.
Upon request by a Holder of Certificated Notes and such Holder's compliance with
the provisions of
31
this Section 2.06(e), the Registrar shall register the transfer or exchange of
Certificated Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar the Certificated
Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by his attorney,
duly authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 2.06(e).
(i) Restricted Certificated Notes to Restricted Certificated Notes.
Any Restricted Certificated Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a Restricted
Certificated Note if the Registrar receives the following:
(A) if the transfer shall be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit C hereto, including the certifications in item (1)
thereof; and
(B) if the transfer shall be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit C hereto, including the certifications in item (2) thereof;
and
(C) if the transfer shall be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit C hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
(ii) Restricted Certificated Notes to Certificated Exchange
Notes. Any Restricted Certificated Note may be exchanged by the Holder
thereof for a Certificated Exchange Note or transferred to a Person or
Persons who take delivery thereof in the form of a Certificated
Exchange Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
32
(1) if the Holder of such Restricted Certificated Notes
proposes to exchange such Notes for an Certificated Exchange
Note, a certificate from such Holder in the form of Exhibit D
hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Certificated Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Certificated Exchange Note, a
certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar or the Company so requests, an Opinion of Counsel in
form reasonably acceptable to the Registrar and the Company, if
applicable, 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 the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
(iii) Certificated Exchange Notes to Certificated Exchange Notes.
A Holder of Certificated Exchange Notes may transfer such Notes to a
Person who takes delivery thereof in the form of a Certificated
Exchange Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Certificated Exchange Notes pursuant
to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer 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 (i) one or more Global Exchange Notes in an aggregate
principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Notes tendered for acceptance by Persons that certify in
the applicable Letters of Transmittal that (x) they are not broker-dealers, (y)
they are not participating in a distribution of the Exchange Notes and (z) they
are not affiliates (as defined in Rule 144) of the Company, and accepted for
exchange in the Exchange Offer and (ii) Certificated Notes in an aggregate
principal amount equal to the principal amount of the Restricted Certificated
Notes accepted for exchange in the Exchange Offer. Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate principal amount
of the applicable Restricted Global Notes to be reduced accordingly, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Certificated Notes so accepted Certificated
Notes in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all Global
Notes and Certificated Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Certificated Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form
33
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER:
(1) REPRESENTS THAT (i) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE ACT)(A "QIB"), (ii) IT HAS ACQUIRED
THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S UNDER THE ACT OR (iii) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE ACT (AN "IAI")),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (i) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (ii) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (iii) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (iv) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (v) TO
AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM
THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $100,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
ACT, (vi) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) OR (vii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE ACT.
THE INDENTURE CONTAINS A PROVISION
34
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THESE
SECURITIES IN VIOLATION OF THE FOREGOING."
(B) Notwithstanding the foregoing, any Global Note or
Certificated Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii) or (f) to this Section 2.06 (and
all Notes issued in exchange therefor or substitution thereof) shall
not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (i) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (ii) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (iii) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (iv) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
(h) Cancellation or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Certificated Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who shall take delivery
35
thereof in the form of a beneficial interest in another Global Note or for
Certificated Notes, the principal amount of Notes represented by such Global
Note shall be reduced accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee
to reflect such reduction; and if the beneficial interest is being exchanged for
or transferred to a Person who shall take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Certificated Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Certificated Note for any
registration of transfer or exchange, but the Company or the Trustee may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.6, 3.9, 4.10, 4.14 and 9.5 hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Certificated Notes issued upon any
registration of transfer or exchange of Global Notes or Certificated Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global Notes
or Certificated Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required (a) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.2 hereof and ending at the close of business on
the day of selection, (b) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (c) to register the transfer
of or to exchange a Note between a record date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Certificated
Notes in accordance with the provisions of Section 2.02 hereof.
36
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, subject
to the terms of the next succeeding sentence, the Company shall issue and the
Trustee shall authenticate a replacement Note if the Trustee's reasonable
requirements for replacement Notes are met. If required by the Trustee or the
Company, such Holder must provide an affidavit of lost certificate and an
indemnity bond or other indemnity, sufficient in the judgment of both the
Company and the Trustee, to protect the Company, the Trustee, any Agent or any
Authenticating Agent from any loss which any of them may suffer if a Note is
replaced. The Company and the Trustee may charge such Holder for their
out-of-pocket expenses in replacing a Note, including reasonable fees and
expenses of counsel, and for any tax that may be imposed in replacing such
Notes. Every replacement Note shall constitute an additional obligation of the
Company.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. Subject
to the provisions of Section 2.09, a Note does not cease to be outstanding
because the Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a mutilated Note
surrendered for replacement), it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Note is held by a protected
purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note
and replacement thereof pursuant to Section 2.07.
Except as otherwise provided in Article 8 of this Indenture, if on a
Redemption Date or the Maturity Date the Paying Agent holds U.S. Legal Tender or
U.S. Government Obligations sufficient to pay all of the principal and interest
due on the Notes payable on that date and is not prohibited from paying such
money to the Holders thereof pursuant to the terms of this Indenture, then on
and after that date such Notes cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver, consent or notice, Notes owned by
the Company or any of its Affiliates shall be considered as though they are not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver, consent or notice,
only Notes which a Trust Officer of the Trustee actually knows are so owned
shall be so considered.
SECTION 2.10. Temporary Notes.
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Until definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes upon receipt of a written order
of the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of temporary Notes to be authenticated and
the date on which the temporary Notes are to be authenticated. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate upon receipt
of a written order of the Company pursuant to Section 2.02 definitive Notes in
exchange for, and upon surrender of, temporary Notes. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes authenticated and delivered hereunder.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel and, shall dispose of all Notes surrendered for
registration of transfer, exchange, payment or cancellation. Subject to Section
2.07, the Company may not issue new Notes to replace Notes that it has paid or
delivered to the Trustee for cancellation. If the Company shall acquire any of
the Notes, such acquisition shall not operate as a redemption or satisfaction of
the Indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes (without
regard to any grace period therefor), it shall pay the defaulted interest, plus
(to the extent lawful) any interest payable on the defaulted interest to the
Persons who are Holders on a subsequent special record date, which date shall be
the fifteenth day preceding the date fixed by the Company for the payment of
defaulted interest or the next succeeding Business Day if such date is not a
Business Day. At least 15 days before the subsequent special record date, the
Company shall mail to each Holder, as of a recent date selected by the Company,
with a copy to the Trustee, a notice that states the subsequent special record
date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP Number.
The Company in issuing the Notes may use "CUSIP" numbers, and if so, the
Trustee shall use such CUSIP numbers in notices of redemption or exchange as a
convenience to Holders; provided that no representation is hereby deemed to be
made by the Trustee as to the correctness or accuracy of such CUSIP numbers
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee in writing of any change in a CUSIP number.
SECTION 2.14. Deposit of Moneys.
Prior to 9:00 a.m. New York City time, on each Interest Payment Date and on
the Maturity Date, the Company shall deposit with the Paying Agent in
immediately available funds
38
money sufficient to make cash payments, if any, due on such Interest Payment
Date or Maturity Date, as the case may be, in a timely manner which permits the
Paying Agent to remit payment to the Holders on such Interest Payment Date or
Maturity Date, as the case may be.
SECTION 2.15. Issuance of Additional Notes.
The Company shall be entitled to issue Additional Notes under this
Indenture in a principal amount not to exceed $200,000,000 in the aggregate
which shall have identical terms as the Notes issued on November 25, 2003, other
than with respect to the date of issuance, issue price and amount of interest
payable on the first payment date applicable thereto (and, if such Additional
Notes shall be issued in the form of Exchange Notes, other than with respect to
transfer restrictions); provided, that such issuance is not prohibited by
Section 4.13. The Initial Notes issued on November 25, 2003, any Additional
Notes and all Exchange Notes or Private Exchange Notes issued in exchange
therefor shall be treated as a single class for all purposes under this
Indenture.
With respect to any Additional Notes, the Company shall provide the Trustee
the documents required by Section 13.04, and shall set forth in a resolution of
the Board of Directors and in an Officers' Certificate, a copy of each which
shall be delivered to the Trustee, the following information:
(1) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP number of such
Additional Notes and the amount of interest payable on the first payment
date applicable thereto; provided, however, that no Additional Notes may be
issued at a price that would cause such Additional Notes to have "original
issue discount" within the meaning of Section 1273 of the Code; and
(3) whether such Additional Notes shall be transfer restricted
securities and issued in the form of Initial Notes or shall be registered
securities issued in the form of Exchange Notes as set forth in the
Appendix.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section 3.07 of this
Indenture and Paragraph 6 of the Notes, it shall notify the Trustee and the
Paying Agent in writing of the Redemption Date and the principal amount of the
Notes to be redeemed.
The Company shall give each notice provided for in this Section 3.01 at
least 45 days before the Redemption Date, unless such shorter period is
acceptable to the Trustee, together with an Officers' Certificate stating that
such redemption shall comply with the conditions contained herein and in the
Notes.
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SECTION 3.02. Selection of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, selection of the Notes
to be redeemed will be made by the Trustee in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not then listed on a national securities exchange,
on a pro rata basis, by lot or in such other fair and reasonable manner chosen
at the discretion of the Trustee; provided, however, that if a partial
redemption is made with the proceeds of a Public Equity Offering, selection of
the Notes or portion thereof for redemption shall be made by the Trustee only on
a pro rata basis, unless such method is otherwise prohibited. The Company shall
promptly notify the Trustee and the Paying Agent in writing of the date of
listing and the name of the securities exchange if and when the Notes are listed
on a principal national securities exchange. The Trustee shall make the
selection from the Notes outstanding and not previously called for redemption
and shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. Notes in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption portions (equal to
$1,000 or any integral multiple thereof) of the principal of Notes that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for
redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail or cause to be mailed a notice of redemption by first class
mail, postage prepaid, to each Holder whose Notes are to be redeemed, with a
copy to the Trustee and any Paying Agent. At the Company's written request no
less than 35 days prior to the Redemption Date (or such shorter period as may be
acceptable to the Trustee), the Trustee shall give the notice of redemption in
the Company's name and at the Company's expense.
Each notice for redemption shall identify the Notes to be redeemed and
shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to which such redemption is
being made;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price plus accrued interest, if any;
(6) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of
such Notes is to
40
receive payment of the Redemption Price plus accrued interest, if any, upon
surrender to the Paying Agent of the Notes redeemed;
(7) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, and upon surrender of such Note, a new Note or Notes in the aggregate
principal amount equal to the unredeemed portion thereof will be issued;
(8) if fewer than all the Notes are to be redeemed, the aggregate
principal amount of Notes to be redeemed and the aggregate principal amount
of Notes to be outstanding after such partial redemption and, if the
redemption is not made pro rata, the identification of the particular Notes
(or portion thereof) to be redeemed; and
(9) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03, Notes
called for redemption become due and payable on the Redemption Date and at the
Redemption Price plus accrued interest, if any. Upon surrender to the Trustee or
Paying Agent, such Notes called for redemption shall be paid at the Redemption
Price and the amount of accrued interest payable thereon, provided that if a
Note is redeemed on or after a Record Date for an interest payment but on or
prior to the related Interest Payment Date, then any accrued and unpaid interest
shall be paid to the Holder of record at the close of business on such Record
Date. Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
Except in connection with a defeasance pursuant to Section 8.02 of this
Indenture, at any time prior to the mailing of a notice of redemption to the
Holders pursuant to Section 3.03, the Company may withdraw, revoke or rescind
any notice of redemption delivered to the Trustee without any continuing
obligation to redeem the Notes.
SECTION 3.05. Deposit of Redemption Price.
On or before 9:00 a.m. New York City time on the Redemption Date, the
Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the Redemption Price plus accrued interest, if any, of all Notes to be redeemed
on that date (other than Notes or portions of Notes called for redemption which
have been delivered by the Company to the Trustee for cancellation). The Paying
Agent shall promptly return to the Company any U.S. Legal Tender so deposited
which is not required for that purpose, except with respect to monies owed as
obligations to the Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price plus accrued interest,
if any, interest on the Notes to be redeemed will cease to accrue on and after
the applicable Redemption Date, whether or not such Notes are presented for
payment.
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SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the Company shall
execute and the Trustee shall authenticate for the Holder a new Note or Notes
equal in principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. Optional Redemption.
(a) Except as set forth in paragraph (b) below, the Notes will not be
redeemable at the option of the Company prior to January 15, 2009. Thereafter,
the Notes will be redeemable, at the Company's option, in whole or in part, at
any time or from time to time, at the following redemption prices (expressed in
percentages of principal amount), plus accrued interest to the Redemption Date
(subject to the right of Holders of record on the relevant Record Date to
receive interest due on the relevant Interest Payment Date), if redeemed during
the 12-month period commencing on January 15 of the years set forth below:
Redemption
Period Price
------ -----------
2009.............................. 103.688 %
2010.............................. 102.458 %
2011.............................. 101.229 %
2012 and thereafter............... 100.000 %
(b) In addition, at any time and from time to time prior to January 15,
2007, the Company may redeem in the aggregate up to 35.0% of the original
principal amount of the Notes (including the original principal amount of any
Additional Notes) with the proceeds of one or more Public Equity Offerings, at a
redemption price (expressed as a percentage of principal amount) of 107.375%
plus accrued interest to the Redemption Date (subject to the right of Holders of
record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date); provided, however, that at least 65% of the aggregate
principal amount of the Notes originally outstanding (including the original
principal amount of any Additional Notes) must remain outstanding after each
such redemption.
In order to effect the foregoing redemption with the proceeds of any Public
Equity Offering, the Company shall make such redemption not more than 120 days
after the consummation of any such Public Equity Offering.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay or cause to be paid the principal of and interest on
the Notes on the dates and in the manner provided in the Notes and in this
Indenture. An installment of principal of or interest on the Notes shall be
considered paid on the date it is due if the Trustee or Paying Agent (other than
the Company or an Affiliate of the Company) holds on that date U.S.
42
Legal Tender designated for and sufficient to pay the installment in full and is
not prohibited from paying such money to the Holders pursuant to the terms of
this Indenture.
Notwithstanding anything to the contrary contained in this Indenture, the
Company may, to the extent it is required to do so by law, deduct or withhold
income or other similar taxes imposed by the United States of America from
principal or interest payments hereunder.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under Section
2.03. 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.
SECTION 4.03. Corporate Existence.
Except as otherwise permitted by Article Five and Section 4.16, the Company
shall do or cause to be done, at its own cost and expense, all things necessary
to preserve and keep in full force and effect its corporate existence and the
corporate existence of each of its Restricted Subsidiaries in accordance with
the respective organizational documents of each of them (as the same may be
amended from time to time) and the material rights (charter and statutory) and
franchises of the Company and each such Restricted Subsidiary; provided,
however, that neither the Company nor any Restricted Subsidiary shall be
required to preserve any right or franchise, or the corporate, partnership or
other existence of any Restricted Subsidiary, if the Board of Directors of the
Company shall reasonably 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.
SECTION 4.04. 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, (i) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all lawful claims for
labor, materials and supplies that, if unpaid, might by law become a Lien upon
the property of it 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 properly
instituted and diligently conducted for which reserves, to the extent required
under and in accordance with GAAP, have been taken.
SECTION 4.05. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Restricted Subsidiaries
to, maintain its material properties in good working order and condition
(subject to ordinary wear
43
and tear) and make all necessary repairs, renewals, replacements, additions,
betterments and improvements thereto and actively conduct and carry on its
business; provided, however, that nothing in this Section 4.05 shall prevent the
Company or any of its Restricted Subsidiaries from discontinuing the operation
and maintenance of any of its properties, if such discontinuance is, in the
reasonable good faith judgment of the Company or the Restricted Subsidiary, as
the case may be, desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole.
(b) The Company shall provide or cause to be provided, for itself and each
of its Restricted Subsidiaries, insurance (including reasonably appropriate
self-insurance consistent with past practice) against loss or damage of the
kinds that, in the good faith judgment of the Board of Directors of the Company,
are adequate and appropriate for the conduct of the business of the Company and
such Restricted Subsidiaries in a prudent manner, with reputable insurers or
with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be customary, in the reasonable good faith judgment of the
Board of Directors of the Company, for companies similarly situated in the
industry.
SECTION 4.06. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days after the end
of the Company's fiscal year, an Officers' Certificate stating that a review of
its activities and the activities of its Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture and further stating, as to each
such Officer signing such certificate, that to the best of such Officer's
knowledge, based on such review, the Company during such preceding fiscal year
has kept, observed, performed and fulfilled each and every such covenant
contained in the Indenture and no Default or Event of Default occurred during
such year and at the date of such certificate there is no Default or Event of
Default that has occurred and is continuing or, if such signers do know of such
Default or Event of Default, the certificate shall describe the Default or Event
of Default and its status with particularity. The Officers' Certificate shall
also notify the Trustee should the Company elect to change the manner in which
it fixes its fiscal year end.
(b) So long as not contrary to the then-current recommendations of the
American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to Section 4.08 shall be accompanied by a written
report of the Company's independent accountants (who shall be a firm of
established national reputation) that in conducting their audit of such
financial statements nothing has come to their attention that would lead them to
believe that the Company has violated any provisions of Article Four or Five of
this Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) (i) If any Default or Event of Default has occurred and is continuing
or (ii) if any Holder seeks to exercise any remedy hereunder with respect to a
claimed Default under this Indenture or the Notes, the Company shall deliver to
the Trustee, at its address set forth in
44
Section 13.02 hereof, by registered or certified mail or by telegram, telex or
facsimile transmission followed by hard copy by registered or certified mail an
Officers' Certificate specifying such event, notice or other action within five
Business Days of its becoming aware of such occurrence.
SECTION 4.07. Compliance with Laws.
The Company shall comply, and shall cause each of its Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as are not in the aggregate
reasonably likely to have a material adverse effect on the financial condition
or results of operations of the Company and its Restricted Subsidiaries, taken
as a whole.
SECTION 4.08. SEC Reports.
(a) So long as the Notes are outstanding, the Company (at its own expense)
shall file with the SEC and shall provide to the Trustee and the Holders within
15 days after it files them with the SEC copies of the quarterly and annual
reports and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) filed pursuant to Section 13 or 15(d) of the Exchange Act (without
regard to whether the Company is subject to the requirements of such Section 13
or 15(d) of the Exchange Act); provided that (i) the Company shall not be in
default of the provisions of this Section 4.08 by reason of the failure to file
reports with the SEC (which reports are in the reasonable opinion of counsel to
the Company responsive in all material respects to the applicable requirements
of the Exchange Act) solely by reason of the refusal of the SEC to accept the
same for filing and (ii) prior to the consummation of an Exchange Offer and the
issuance of the Exchange Notes, the Company (at its own expense) will mail to
the Trustee and Holders substantially the same information that would have been
required by such Sections within 15 days of when any such document would
otherwise have been required to be filed with the SEC. Upon qualification of
this Indenture under the TIA, the Company shall also comply with the provisions
of the TIA Section 314(a).
(b) The Company shall provide to any Holder any information reasonably
requested by such Holder concerning the Company (including financial statements)
necessary in order to permit such Holder to sell or transfer Notes in compliance
with Rule 144A under the Securities Act. Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the
Trustee's receipt of such reports 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 4.09. Waiver of Stay, Extension or Usury Laws.
45
The Company covenants (to the extent that it may lawfully do so) that it
will 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 that would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; 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 will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 4.10. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, (i) declare or pay any dividend or make any distribution
on or in respect of its Capital Stock (including any payment in connection with
any merger or consolidation involving the Company) or to the direct or indirect
holders of its Capital Stock in their capacities as such (except dividends or
distributions payable solely in Capital Stock (other than Disqualified Stock) or
in options, warrants or other rights to purchase its Capital Stock (other than
Disqualified Stock) and except dividends or distributions payable to the Company
or a Restricted Subsidiary (and, if the Restricted Subsidiary making such
dividends or distributions has any stockholders other than the Company or
another Restricted Subsidiary, to such stockholders on no more than a pro rata
basis, measured by value)), (ii) purchase, redeem or otherwise acquire or retire
for value any Capital Stock of the Company, any Restricted Subsidiary or any
other Affiliate of the Company, (iii) purchase, repurchase, redeem, defease or
otherwise acquire or retire for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment, any Subordinated Obligations or
(iv) make any Restricted Investment (any such dividend, distribution, purchase,
redemption, repurchase, defeasance, other acquisition, retirement or Restricted
Investment being herein referred to as a "Restricted Payment") if at the time
the Company or such Restricted Subsidiary makes such Restricted Payment: (1) a
Default shall have occurred and be continuing (or would result therefrom); or
(2) the Company would not be permitted to issue an additional $1.00 of
Indebtedness pursuant to paragraph (a) under Section 4.13 after giving pro forma
effect to such Restricted Payment; or (3) the aggregate amount of such
Restricted Payment and all other Restricted Payments since March 31, 1998 would
exceed the sum of: (A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the beginning of the first full
fiscal quarter commencing after March 31, 1998 to the end of the most recent
fiscal quarter for which financial statements are available (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such deficit) plus (B)
the aggregate Net Cash Proceeds received by the Company from (x) the issue or
sale of its Capital Stock (other than Disqualified Stock) subsequent to March
31, 1998 (other than an issuance or sale to a Subsidiary or an employee stock
ownership plan or similar trust in the benefit of employees) and (y) the issue
or sale (other than an issuance or sale to a Subsidiary or an employee stock
ownership plan or similar trust in the benefit of employees) after March 31,
1998 of Disqualified Stock or debt securities that have been converted or
exchanged in accordance with their terms for Capital Stock of the Company (other
than Disqualified Stock), in each case to the extent such proceeds are not used
to redeem, repurchase, retire or otherwise acquire Capital Stock or any
Indebtedness of the Company or any Restricted
46
Subsidiary or to make any Investment pursuant to clause (viii) of the definition
of "Permitted Investment."
(b) The provisions of clauses (2) and (3) of paragraph (a) shall not
prohibit: (1) any purchase or redemption of Capital Stock or Subordinated
Obligations of the Company made by exchange for, or out of the proceeds of the
substantially concurrent sale or issuance of, Capital Stock of the Company
(other than Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary or an employee stock ownership plan); provided, however, that the Net
Cash Proceeds from such sale shall be excluded from clause (3)(B) of paragraph
(a) above; (2) dividends paid within 60 days after the date of declaration if at
such date of declaration such dividend would have complied with this provision;
provided, however, that such dividend shall be deducted in the calculation of
the amount of Restricted Payments available to be made referred to in clause (3)
of paragraph (a) above; (3) the repurchase of shares of, or options to purchase
shares of, Capital Stock of the Company or any of its Subsidiaries from
employees, former employees, directors or former directors of the Company or any
of its Subsidiaries (or permitted transferees of such employees, former
employees, directors or former directors), pursuant to the terms of the
agreements (including employment agreements) or plans (or amendments thereto)
approved by the Board of Directors under which such individuals purchase or sell
or are granted the option to purchase or sell, shares of such common stock;
provided, however, that the aggregate amount of any repurchases pursuant to this
clause (3) and any purchases pursuant to clause (4) below shall not exceed
$5,000,000 per year; (4) provided that no Default or Event of Default shall have
occurred or be continuing at the time of such payment or after giving effect
thereto, the purchase by the Company of shares of its common stock (for not more
than fair market value) in connection with the delivery of such stock to
grantees under any stock option plan (upon the exercise by such grantees of
their stock options) or any other deferred compensation plan of the Company
approved by the Board of Directors; provided, however, that the aggregate amount
of any purchases pursuant to this clause (4) and any repurchases pursuant to
clause (3) above shall not exceed $5,000,000 per year; (5) the redemption,
purchase, retirement or other payoff of any Subordinated Obligations with the
proceeds of any Refinancing Indebtedness permitted to be incurred pursuant to
the terms of clauses (b)(v) and (v), respectively, of Section 4.13 and Section
4.18; and (6) provided that no Default or Event of Default shall have occurred
or be continuing at the time of such payment or after giving effect thereto,
other Restricted Payments in an aggregate amount not to exceed $10 million;
provided, however, that such payment shall be deducted in the calculation of the
amount of Restricted Payments available to be made referred to in clause (3) of
paragraph (a) above.
SECTION 4.11. Limitation on Restrictions on Distributions from Restricted
Subsidiaries.
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create or permit to exist or become effective any
encumbrance or restriction on the ability of any Restricted Subsidiary to (i)
pay dividends or make any other distributions on its Capital Stock or with
respect to any other interest or participation in, or measured by, its profits
to the Company or a Restricted Subsidiary or pay any Indebtedness or other
obligation owed to the Company or a Restricted Subsidiary, (ii) make any loans
or advances to the Company or any other Restricted Subsidiary or (iii) transfer
any of its property or assets to the Company or any other Restricted Subsidiary,
except for such encumbrances or restrictions existing under or by
47
reason of (a) the Credit Facility as in effect on November 25, 2003, and any
amendments, restatements, renewals, replacements or refinancings thereof;
provided, however, that such amendments, restatements, renewals, replacements or
refinancings are no more restrictive with respect to such dividend and other
payment restrictions than those contained in the Credit Facility (or, if more
restrictive, than those contained in this Indenture) immediately prior to any
such amendment, restatement, renewal, replacement or refinancing, (b) applicable
law, (c) any instrument governing Indebtedness or Capital Stock of an Acquired
Person acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such Indebtedness
was incurred in connection with or in contemplation of such acquisition);
provided, however, that (1) such restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Acquired Person, and (2)
the consolidated net income of an Acquired Person for any period prior to such
acquisition shall not be taken into account in determining whether such
acquisition was permitted by the terms of this Indenture, (d) by reason of
customary non-assignment provisions in leases or other agreements entered into
the ordinary course of business and consistent with past practices, (e) Purchase
Money Indebtedness for property acquired in the ordinary course of business that
only impose restrictions on the property so acquired, (f) an agreement for the
sale or disposition of the Capital Stock or assets of such Restricted
Subsidiary; provided, however, that such restriction is only applicable to such
Restricted Subsidiary or assets, as applicable, and such sale or disposition
otherwise is permitted under Section 4.17 below; provided, further, however,
that such restriction or encumbrance shall be effective only for a period from
the execution and delivery of such agreement through a termination date not
later than 270 days after such execution and delivery, or (g) Refinancing
Indebtedness permitted under this Indenture; provided, however, that the
restrictions contained in the agreements governing such Refinancing Indebtedness
are no more restrictive in the aggregate than those contained in the agreements
governing the Indebtedness being refinanced immediately prior to such
refinancing. Notwithstanding the foregoing, neither (a) customary provisions
restricting subletting or assignment of any lease entered into in the ordinary
course of business, consistent with past practice, nor (b) Liens permitted under
this Indenture, shall in and of themselves be considered a restriction on the
ability of the applicable Restricted Subsidiary to transfer such agreements or
assets, as the case may be.
SECTION 4.12. Limitation on Affiliate Transactions.
(a) The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, conduct any business or enter into any transaction or
series of similar transactions (including the purchase, sale, lease or exchange
of any asset or property or the rendering of any service) with any Affiliate of
the Company (other than any employee stock ownership plan for the benefit of the
Company's or a Restricted Subsidiary's employees) unless the terms of such
business, transaction or series of transactions are: (i) as favorable to the
Company or such Restricted Subsidiary as terms that would be obtainable at the
time for a comparable transaction or series of similar transactions in arms'
length dealings with an unrelated third Person and (ii) if such business,
transaction or series of similar transactions involves an amount in excess of $5
million, the terms of such business, transaction or series of similar
transactions shall be in writing and a majority of the disinterested members of
the Board of Directors shall have, by resolution, determined in good faith that
such business or transaction or series of transactions meets the criteria set
forth in (i) above; provided, however, that if such business, transaction or
series of similar transactions involves an amount in excess of $15 million,
48
the Company shall also obtain from a nationally recognized independent
investment banking firm, accounting firm or appraisal firm with experience in
evaluating the terms and conditions of such type of business or transactions an
opinion that such transaction is fair from a financial point of view to the
Company or its Restricted Subsidiary, as the case may be; provided, further,
however, that the provisions of both clause (ii) above and the preceding proviso
shall not apply with respect to any such business, transaction or series of
related transactions between the Company or any Subsidiary Guarantor on the one
hand, and any Restricted Subsidiary on the other hand, which business,
transaction or series of transactions is entered into in the ordinary course of
business.
(b) The provisions of the foregoing paragraph (a) shall not apply to (i)
any Restricted Payment permitted to be made pursuant to Section 4.10, or any
payment or transaction specifically excepted from the definition of Restricted
Payment, (ii) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans entered into in the
ordinary course of business and approved by a majority of the entire Board of
Directors or by a majority of the disinterested members of the Board of
Directors or a majority of the entire board of directors or a majority of the
disinterested members of the board of directors of the relevant Restricted
Subsidiary, (iii) the grant of stock options or similar rights to employees and
directors pursuant to plans approved by a majority of the entire Board of
Directors or by a majority of the disinterested members of the Board of
Directors or a majority of the entire board of directors or a majority of the
disinterested members of the board of directors of the relevant Restricted
Subsidiary, (iv) loans or advances to officers, directors or employees in the
ordinary course of business, (v) the payment of reasonable fees to directors of
the Company and its Restricted Subsidiaries who are not employees of the Company
or its Restricted Subsidiaries, (vi) any Affiliate transaction between the
Company and a Subsidiary Guarantor, between Subsidiary Guarantors, or between
Restricted Subsidiaries which are both not Subsidiary Guarantors, (vii)
indemnification or insurance provided to officers or directors of the Company or
any Subsidiary approved in good faith by the Board of Directors; (viii) payment
of compensation and benefits to directors, officers and employees of the Company
and its Subsidiaries approved in good faith by the Board of Directors; and (ix)
the purchase of or the payment of Indebtedness of or monies owed by the Company
or any of its Restricted Subsidiaries for goods or materials purchased, or
services received, in the ordinary course of business.
SECTION 4.13. Limitation on Indebtedness.
(a) The Company will not Incur, directly or indirectly, any Indebtedness
(including Acquired Indebtedness) unless, on the date of such Incurrence, and
after giving pro forma effect thereto, (i) no Default or Event of Default shall
have occurred and be continuing or would occur and (ii) the Consolidated Cash
Flow Coverage Ratio at the date of such issuance exceeds 2.0 to 1.0.
(b) Notwithstanding paragraph (a), the Company may Incur the following
Indebtedness: (i) Indebtedness Incurred pursuant to the Credit Facility,
together with all Indebtedness then outstanding and Incurred pursuant to clause
(i) of Section 4.18 below, not to exceed in outstanding principal amount the
greater of (1) $950 million at any time outstanding and (2) the sum of (x) 80%
of the consolidated book value of the net accounts receivable of the
49
Company and (y) 50% of the consolidated book value of the inventory of the
Company, in each case determined in accordance with GAAP; (ii) Indebtedness owed
to and held by a Restricted Subsidiary; provided, however, that any subsequent
issuance or transfer of any Capital Stock that results in such Subsidiary
ceasing to be a Restricted Subsidiary, or any transfer of such Indebtedness
(other than to a Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Indebtedness by the Company; (iii) the Notes
and the Exchange Notes (other than Additional Notes); (iv) Indebtedness (other
than Indebtedness described in clause (i), (ii), or (iii) above) outstanding on
November 25, 2003 (including the Existing Notes); (v) any Refinancing
Indebtedness in respect of Indebtedness Incurred pursuant to paragraph (a) or
pursuant to clause (iii), (iv) or (viii) or this clause (v) or pursuant to
clause (v) of the covenant described under Section 4.18 below; (vi) obligations
of the Company pursuant to (A) Interest Rate Protection Agreements in respect of
Indebtedness of the Company that is permitted by the terms of this Indenture to
be outstanding to the extent the notional principal amount of such obligation
does not exceed the aggregate principal amount of the Indebtedness to which such
Interest Rate Protection Agreements relate, (B) Currency Agreement Obligations
in respect of foreign exchange exposures Incurred by the Company in the ordinary
course of its business and (C) commodity agreements of the Company to the extent
entered into in the ordinary course of business to protect the Company from
fluctuations in the prices of raw materials used in its business; (vii)
Indebtedness of the Company consisting of obligations in respect of purchase
price adjustments in connection with the acquisition or disposition of assets by
the Company or any Restricted Subsidiary permitted under this Indenture; (viii)
Capital Lease Obligations, Purchase Money Indebtedness and Acquired Indebtedness
(to the extent not Incurred in connection with, or in anticipation or
contemplation of, the relevant transaction) in an aggregate principal amount,
together with the principal amount of Indebtedness Incurred pursuant to clause
(ix) of Section 4.18, not exceeding $25 million at any one given time
outstanding; (ix) performance bonds, surety bonds, insurance obligations or
bonds and other similar bonds or obligations incurred by the Company in the
ordinary course of business consistent with past practice; (x) Floor Plan
Guarantees; (xi) Indebtedness resulting from endorsement of negotiable
instruments for collection in the ordinary course of business; (xii)
Indebtedness arising under indemnity agreements to title insurers to cause such
title insurers to issue to the Collateral Agent mortgagee title insurance
policies; and (xiii) Indebtedness in an aggregate principal amount which,
together with all other Indebtedness of the Company then outstanding (other than
Indebtedness permitted by paragraph (a) or clauses (i) through (xii) of this
paragraph) does not exceed $25 million (less the amount of any Subsidiary
Indebtedness and Preferred Stock then outstanding and Incurred pursuant to
clause (xii) of Section 4.18).
(c) Except to the extent that such Indebtedness is permitted to be incurred
pursuant to paragraphs (a) and (b) above and the provisions of Section 4.18, the
Company will not, and will not permit any Restricted Subsidiary to, Incur any
Indebtedness if the proceeds thereof are used, directly or indirectly, to repay,
prepay, redeem, defease, retire, refund or refinance any Subordinated
Obligations unless such Indebtedness shall be subordinated to the Notes or the
relevant Subsidiary Guarantee, as applicable, to at least the same extent as
such Subordinated Obligations.
(d) For purposes of determining compliance with the covenants set forth in
this Section 4.13 and Section 4.18, in the event that an item of Indebtedness
meets the criteria of more than one of the types of Indebtedness described
above, the Company, in its sole discretion,
50
will classify such item of Indebtedness and only be required to include the
amount and type of such Indebtedness in one of the above clauses.
(e) For purposes of determining amounts of Indebtedness under the covenants
set forth in this Section 4.13 and Section 4.18, Indebtedness resulting from
security interests granted with respect to Indebtedness otherwise included in
the determination of Indebtedness, and Guarantees (and security interests with
respect thereof) of, or obligations with respect to letters of credit
supporting, Indebtedness otherwise included in the determination of Indebtedness
shall not be included in the determination of Indebtedness.
(f) Indebtedness of any Person which is outstanding at the time such Person
becomes a Restricted Subsidiary of the Company (including upon designation of
any subsidiary or other person as a Restricted Subsidiary) or is merged with or
into or consolidated with the Company or a Restricted Subsidiary of the Company
shall be deemed to have been Incurred at the time such Person becomes such a
Restricted Subsidiary of the Company or merged with or into or consolidated with
the Company or a Restricted Subsidiary of the Company, as applicable.
SECTION 4.14. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries.
The Company will not sell or otherwise dispose of any Capital Stock of a
Restricted Subsidiary, and will not permit any Restricted Subsidiary, directly
or indirectly, to issue or sell or otherwise dispose of any of its Capital Stock
except (i) to the Company or a Wholly Owned Subsidiary, (ii) if, immediately
after giving effect to such issuance, sale or other disposition, neither the
Company nor any of its Subsidiaries own any Capital Stock of such Restricted
Subsidiary, (iii) Preferred Stock of a Subsidiary Guarantor, or (iv) directors'
qualifying shares.
SECTION 4.15. Limitation on Other Senior Subordinated Indebtedness.
The Company will not, and will not permit any Restricted Subsidiary
Guarantor to, create, Incur, assume, guarantee or in any other manner become
liable with respect to any Indebtedness that is expressly by its terms
subordinate or junior in right of payment to any Senior Indebtedness of the
Company or any Subsidiary Guarantor and senior in any respect in right of
payment to the Notes, in the case of the Company, or to the applicable
Subsidiary Guarantee in the case of a Subsidiary Guarantor.
SECTION 4.16. Change of Control.
(a) Upon a Change of Control, each Holder shall have the right to require
that the Company repurchase all or any part of such Holder's Notes at a purchase
price in cash equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of purchase (subject to the right of
Holders of record on a record date to receive interest on the relevant interest
payment date), in accordance with the terms contemplated in Section 4.16(b). If
at the time of such Change of Control the terms of the Senior Indebtedness of
the Company restrict or prohibit the repurchase of Notes pursuant to this
Section, then prior to the mailing of the notice to Holders provided for in
Section 4.16(b) below but in any event within 90 days following any Change of
Control, the Company shall obtain the requisite consent under the
51
agreements governing such Senior Indebtedness of the Company to permit the
repurchase of the Notes as provided for in Section 4.16(b).
(b) Within 15 Business Days following any Change of Control, the Company
shall mail a notice to the Trustee and each Holder stating:
(1) that a Change of Control has occurred and that such Holder has the
right to require the Company to purchase such Holder's Notes at a purchase
price in cash equal to 101% of the principal amount thereof plus accrued
and unpaid interest, if any, to the date of purchase (subject to the right
of Holders of record on the relevant record date to receive interest on the
relevant interest payment date);
(2) the circumstances and relevant facts regarding such Change of
Control (including information with respect to pro forma historical income,
cash flow and capitalization, each after giving effect to such Change of
Control);
(3) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(4) the instructions determined by the Company, consistent with this
Section, that a Holder must follow in order to have its Notes purchased.
(c) Holders electing to have a Note purchased will be required to surrender
the Note, with an appropriate form (as provided for in Exhibit A or B, as
appropriate) duly completed, to the Company at the address specified in the
notice not later than 3 p.m. New York City time two Business Days prior to the
purchase date. Holders will be entitled to withdraw their election if the
Trustee or the Company receives not later than 3 p.m. New York City time two
Business Day prior to the purchase date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note which was delivered for purchase by the Holder and a
statement that such Holder is withdrawing his election to have such Note
purchased.
(d) On the purchase date, all Notes purchased by the Company under this
Section shall be delivered to the Trustee for cancellation, and the Company
shall pay or cause to be paid the purchase price plus accrued and unpaid
interest, if any, to the Holders entitled thereto.
(e) At the time the Company delivers Notes to the Trustee which are to be
accepted for purchase, the Company shall also deliver an Officers' Certificate
stating that such Notes are to be accepted by the Company pursuant to and in
accordance with the terms of this Section. A Note shall be deemed to have been
accepted for purchase at the time the Trustee, directly or through an agent,
mails or delivers payment therefor to the surrendering Holder.
(f) The Company will comply in all material respects, to the extent
applicable, with the requirements of Section 14(e) of the Exchange Act and any
other securities laws or regulations in connection with the repurchase of Notes
pursuant to this Section. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section, the Company will
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section by virtue thereof.
52
SECTION 4.17. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company will not, and will not permit any Restricted Subsidiary to,
make any Asset Disposition unless (i) the Company or such Restricted Subsidiary
receives consideration at the time of such Asset Disposition at least equal to
the fair market value, as determined in good faith by the Board of Directors
(including as to the value of all non-cash consideration), of the shares and
assets subject to such Asset Disposition and at least 75% of the consideration
thereof received by the Company or such Restricted Subsidiary, as the case may
be, is in the form of cash or Cash Equivalents, and (ii) an amount equal to 100%
of the Net Available Cash from such Asset Disposition is applied by the Company
(or such Restricted Subsidiary, as the case may be) (A) first, (x) to the extent
the Company elects (or is required by the terms of any Senior Indebtedness), to
prepay, repay or purchase Senior Indebtedness of the Company) within 360 days of
such Asset Disposition, (y) at the Company's election to the investment by the
Company or any Wholly Owned Subsidiary or such Restricted Subsidiary in
long-term assets to replace the assets that were the subject of such Asset
Disposition or a long-term asset that (as determined in good faith by the Board
of Directors) is directly related to the business of the Company and the
Restricted Subsidiaries existing on November 25, 2003, in each case within 360
days from the date of such Asset Disposition, or (z) a combination of the
foregoing purposes within such 360-day period; (B) second, to the extent of the
balance of such Net Available Cash after application in accordance with clause
(A), to make a pro rata offer to purchase Notes at par (and, to the extent
required by the instrument governing such Indebtedness, any other Senior
Subordinated Indebtedness designated by the Company, at a price no greater than
par) plus accrued and unpaid interest, and (C) third, to the extent of the
balance of such Net Available Cash after application in accordance with clauses
(A) and (B), for general corporate purposes otherwise not prohibited under this
Indenture; provided, however, that in connection with any prepayment, repayment
or purchase of Indebtedness pursuant to clause (A) or (B) above, the Company or
such Subsidiary shall retire such Indebtedness and cause the related loan
commitment (if any) to be permanently reduced in an amount equal to the
principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing
provisions of this Section 4.17, the Company and its Restricted Subsidiaries
shall not be required to apply any Net Available Cash in accordance with this
Section except to the extent that the aggregate Net Available Cash from all
Asset Dispositions (including any Asset Dispositions made since November 25,
2003) which are not applied in accordance with this Section exceeds $25 million.
Pending application of Net Available Cash pursuant to this Section, such Net
Available Cash shall be used to temporarily reduce Senior Indebtedness or
invested in Cash Equivalents.
For the purposes of this Section 4.17, the following is deemed to be cash
or Cash Equivalents: the express assumption of Indebtedness (other than any
Indebtedness that is by its terms subordinated to the Notes) of the Company or
any Restricted Subsidiary, but only to the extent that such assumption is
effected on a basis under which there is no further recourse to the Company or
any of the Restricted Subsidiaries with respect to such liabilities
(b) In the event of an Asset Disposition that requires the purchase of
Notes (and other Senior Subordinated Indebtedness of the Company) pursuant to
Section 4.17(a)(ii)(B), the Company will purchase Notes tendered pursuant to an
offer by the Company for the Notes (and, to the extent required, other Senior
Subordinated Indebtedness of the Company) (the "Offer") at a purchase price of
100% of their principal amount (without premium) plus accrued
53
but unpaid interest (or, in respect of such other Senior Subordinated
Indebtedness of the Company, such lesser price, if any, as may be provided for
by the terms of such Senior Subordinated Indebtedness of the Company) in
accordance with the procedures (including prorating in the event of
oversubscription) set forth in Section 4.17(c). If the aggregate purchase price
of Notes (and, to the extent required, any other Senior Subordinated
Indebtedness of the Company) tendered pursuant to the Offer is less than the Net
Available Cash allotted to the purchase thereof, the Company shall be required
to apply the remaining Net Available Cash in accordance with Section
4.17(a)(ii)(C). The Offer shall remain open for a period of 20 Business Days.
The Company will not be required to make an Offer to purchase Notes (and other
Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.17
if the Net Available Cash available therefor is less than $10 million (which
lesser amount shall be carried forward for purposes of determining whether such
an Offer is required with respect to the Net Available Cash from any subsequent
Asset Disposition).
(c) (1) Promptly, and in any event within 30 days after the Company becomes
obligated to make an Offer, the Company shall be obligated to deliver to the
Trustee and send, by first-class mail to each Holder, a written notice stating
that the Holder may elect to have his Notes purchased by the Company either in
whole or in part (subject to prorating as hereinafter described in the event the
Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at
the applicable purchase price. The notice shall specify a purchase date not less
than 30 days nor more than 60 days after the date of such notice (the "Purchase
Date") and shall contain such information which the Company in good faith
believes will enable such Holders to make an informed decision.
(2) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided above, the Company shall deliver to
the Trustee an Officers' Certificate as to (i) the amount of the Offer (the
"Offer Amount"), (ii) the allocation of the Net Available Cash from the
Asset Dispositions pursuant to which such Offer is being made and (iii) the
compliance of such allocation with the provisions of Section 4.17(a). Upon
the expiration of the period for which the Offer remains open (the "Offer
Period"), the Company shall deliver to the Trustee for cancellation the
Notes or portions thereof which have been properly tendered to and are to
be accepted by the Company. The Trustee shall, on the Purchase Date, mail
or deliver payment to each tendering Holder in the amount of the purchase
price. In the event that the aggregate purchase price of the Notes
delivered by the Company to the Trustee is less than the Offer Amount, the
Trustee shall deliver the excess to the Company promptly after the
expiration of the Offer Period for application in accordance with this
Section.
(3) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Company
at the address specified in the notice not later than 3:00 p.m., New York
City time, two Business Days prior to the Purchase Date. Holders shall be
entitled to withdraw their election if the Trustee or the Company receives
not later than 3:00 p.m., New York City time, two Business Days prior to
the Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder,
54
the principal amount of the Note which was delivered for purchase by the
Holder and a statement that such Holder is withdrawing his election to have
such Note purchased. If at the expiration of the Offer Period the aggregate
principal amount of Notes surrendered by Holders exceeds the Offer Amount,
the Company shall select the Notes to be purchased on a pro rata basis
taking into account any other tendered Senior Subordinated Indebtedness
which is the subject of such offer (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased). Holders whose Notes are
purchased only in part shall be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered.
(4) At the time the Company delivers Notes to the Trustee which are to
be accepted for purchase, the Company shall also deliver an Officers'
Certificate stating that such Notes are to be accepted by the Company
pursuant to and in accordance with the terms of this Section. A Note shall
be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to
this Section 4.17. To the extent that the provisions of any securities laws
or regulations conflict with provisions of this Section, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.17 by virtue
thereof.
SECTION 4.18. Limitation on Indebtedness and Preferred Stock of Restricted
Subsidiaries.
The Company will not permit any Restricted Subsidiary to Incur, directly or
indirectly, any Indebtedness or Preferred Stock (except that a Subsidiary
Guarantor shall be permitted to issue Preferred Stock) except: (i) Indebtedness
Incurred pursuant to the Credit Facility, together with the aggregate amount of
all Indebtedness then outstanding and issued pursuant to clause (b)(i) of
Section 4.13 above, not to exceed in outstanding principal amount the greater of
(1) $950 million at any time outstanding and (2) the sum of (x) 80% of the
consolidated book value of the net accounts receivable of the Company and (y)
50% of the consolidated book value of the inventory of the Company, in each case
determined in accordance with GAAP; (ii) Indebtedness or Preferred Stock issued
to and held by the Company or a Restricted Subsidiary; provided, however, that
(A) any subsequent issuance or transfer of any Capital Stock that results in any
such Subsidiary ceasing to be a Restricted Subsidiary or (B) any subsequent
transfer of such Indebtedness or Preferred Stock (other than to the Company or a
Restricted Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness or Preferred Stock by the issuer thereof; (iii)
Acquired Indebtedness (to the extent not Incurred in connection with, or in
anticipation or contemplation of, the relevant transaction) of such Restricted
Subsidiary; provided that after giving effect to the Incurrence of such Acquired
Indebtedness, the Company could incur $1.00 of Indebtedness pursuant to
paragraph (a) under Section 4.13; (iv) Indebtedness or Preferred Stock (other
than any described in clause (i),
55
(ii) or (iii)) outstanding on November 25, 2003 (including Guarantees in respect
of the Existing Notes); (v) Refinancing Indebtedness Incurred in respect of
Indebtedness or Preferred Stock referred to in clause (iii), (iv) or (ix) or
this clause (v); provided, however, that to the extent such Refinancing
Indebtedness Refinances Acquired Indebtedness or Preferred Stock of a Restricted
Subsidiary that is not a Wholly Owned Subsidiary, such Refinancing Indebtedness
shall be Incurred only by such Restricted Subsidiary; (vi) Obligations of a
Restricted Subsidiary pursuant to (A) Interest Rate Protection Agreements in
respect of Indebtedness of the Restricted Subsidiary that is permitted by the
terms of this Indenture to be outstanding to the extent the notional principal
amount of such obligation does not exceed the aggregate principal amount of the
Indebtedness to which such Interest Rate Protection Agreements relate, (B)
Currency Agreement Obligations in respect of foreign exchange exposures Incurred
by the Restricted Subsidiary in the ordinary course of its business and (C)
commodity agreements of the Restricted Subsidiary to the extent entered into in
the ordinary course of business to protect the Restricted Subsidiary from
fluctuations in the prices of raw materials used in its business; (vii)
Indebtedness consisting of the Subsidiary Guarantees (other than in respect of
Additional Notes, except to the extent that such Additional Notes were permitted
to be issued under Section 4.13); (viii) Indebtedness of any Restricted
Subsidiary consisting of Obligations in respect of purchase price adjustments in
connection with the acquisition or disposition of assets by any Restricted
Subsidiary permitted under this Indenture; (ix) Capital Lease Obligations,
Purchase Money Indebtedness and Acquired Indebtedness (to the extent not
Incurred in connection with, or in anticipation or contemplation of, the
relevant transaction) in an aggregate principal amount not exceeding, together
with the principal amount of Indebtedness Incurred pursuant to clause (b)(viii)
of Section 4.13, $25 million at any one given time outstanding; (x) performance
bonds, surety bonds, insurance obligations or bonds and other similar bonds or
obligations incurred by a Restricted Subsidiary in the ordinary course of
business consistent with past practice; (xi) Floor Plan Guarantees; and (xii)
Indebtedness and Preferred Stock in an aggregate principal amount which,
together with any other Indebtedness or Preferred Stock of Restricted
Subsidiaries then outstanding (other than Indebtedness or Preferred Stock
permitted by clauses (i) through (xi) of this Section) does not exceed $25
million (less the amount of any Indebtedness then outstanding and Incurred
pursuant to clause (b)(xiii) of Section 4.13).
SECTION 4.19. Limitation on Liens Securing Subordinated Indebtedness.
The Company will not, and will not permit any Restricted Subsidiary to,
create, Incur, assume or suffer to exist any Liens of any kind (other than
Permitted Liens) upon any of their respective assets or properties now owned or
acquired after the date of this Indenture or any income or profits therefrom
securing either (i) any Indebtedness of the Company or a Restricted Subsidiary
which is expressly by its terms subordinate or junior in right of payment to any
other Indebtedness of the Company or such Restricted Subsidiary, as the case may
be, unless the Notes or the relevant Subsidiary Guarantee, as the case may be,
are equally and ratably secured for so long as such Indebtedness is so secured;
provided that, if such Indebtedness which is expressly by its terms subordinate
or junior in right of payment to any other Indebtedness of the Company or a
Restricted Subsidiary is expressly subordinate or junior to the Notes or the
relevant Subsidiary Guarantee, as the case may be, then the Lien securing such
subordinated or junior Indebtedness shall be subordinate and junior to the Lien
securing the Notes or the relevant Subsidiary Guarantee, as the case may be,
with the same relative priority as such subordinated or junior Indebtedness
shall have with respect to the Notes or the relevant Subsidiary Guarantee, as
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the case may be or (ii) any assumption, guarantee or other liability of the
Company or any Restricted Subsidiary in respect of any Indebtedness of the
Company or a Restricted Subsidiary which is expressly by its terms subordinate
or junior in right of payment to any other Indebtedness of the Company or such
Restricted Subsidiary, unless the Notes or the relevant Subsidiary Guarantee, as
the case may be, are equally and ratably secured for so long as such assumption,
guaranty or other liability is so secured; provided that, if such subordinated
Indebtedness which is expressly by its terms subordinate or junior in right of
payment to any other Indebtedness of the Company or a Restricted Subsidiary is
expressly by its terms subordinate or junior to the Notes or the relevant
Subsidiary Guarantee, as the case may be, then the Lien securing the assumption,
guarantee or other liability of such Subsidiary shall be subordinate and junior
to the Lien securing the Notes or the relevant Subsidiary Guarantee, as the case
may be, with the same relative priority as such subordinated or junior
Indebtedness shall have with respect to the Notes or the relevant Subsidiary
Guarantee, as the case may be.
SECTION 4.20. Future Subsidiary Guarantors.
The Company and each Subsidiary Guarantor will cause each Restricted
Subsidiary of the Company organized or existing under the laws of the United
States, any state thereof or the District of Columbia of the Company which,
after November 25, 2003 (if not then a Subsidiary Guarantor), becomes a
Restricted Subsidiary to execute and deliver an indenture supplemental to this
Indenture and thereby become a Subsidiary Guarantor which shall be bound by the
Subsidiary Guarantee of the Notes in the form set forth in this Indenture
(without such future Subsidiary Guarantor being required to execute and deliver
the Subsidiary Guarantee endorsed on the Notes). In addition, the Company will
not permit any Restricted Subsidiary that is not a Subsidiary Guarantor to
Guarantee any other Indebtedness of the Company or any Subsidiary Guarantor
unless such Restricted Subsidiary simultaneously executes a supplemental
indenture to the Indenture providing for the Guarantee of the payment of the
Notes by such Restricted Subsidiary, which Guarantee of the payment of the Notes
shall be subordinated to the Guarantee of such other Indebtedness to the same
extent as the Notes or the Subsidiary Guarantees, as applicable, are
subordinated to such other Indebtedness; provided, however, that such Restricted
Subsidiary shall not be required to so Guarantee the payment of the Notes to the
extent that such other Indebtedness does not exceed $1 million individually or,
together with any other Indebtedness of the Company or any Subsidiary Guarantor
Guaranteed by such Restricted Subsidiary, $3 million in the aggregate. Such
Restricted Subsidiary shall be deemed released from its obligations under the
Guarantee of the payment of the Notes at any such time that such Restricted
Subsidiary is released from all of its obligations under its Guarantee of such
other Indebtedness unless such release results from the payment under such
Guarantee of other Indebtedness.
SECTION 4.21. Limitation on Designations of Unrestricted Subsidiaries.
(a) The Company may designate any Subsidiary of the Company (other than a
Subsidiary Guarantor) as an "Unrestricted Subsidiary" (a "Designation") only if:
(i) no Default shall have occurred and be continuing at the time of or
after giving effect to such Designation; and
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(ii) either (x) the Company's Investment in such Subsidiary does not
exceed $1,000 or (y) the Company would be permitted under this Indenture to
make an Investment at the time of Designation (assuming the effectiveness
of such Designation) in an amount (the "Designation Amount") equal to the
fair market value of the Company's Investment in such Subsidiary on such
date.
In the event of any such Designation, the Company shall be deemed to have
made an Investment constituting a Restricted Payment pursuant to Section 4.10
for all purposes of this Indenture in the Designation Amount. The Company shall
not, and shall not permit any Restricted Subsidiary to, at any time (a) provide
credit support for, or a guarantee of, any Indebtedness of any Unrestricted
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness), (b) be directly or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary, or (c) be directly or indirectly liable for any
Indebtedness which provides that the holder thereof may (upon notice, lapse of
time or both) declare a default thereon or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity upon the occurrence
of a default with respect to any Indebtedness of any Unrestricted Subsidiary
(including any right to take enforcement action against such Unrestricted
Subsidiary), except to the extent permitted under Section 4.10.
The Company may revoke any Designation of a Subsidiary as an Unrestricted
Subsidiary (a "Revocation") if:
(i) no Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation; and
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if Incurred at
such time, have been permitted to be Incurred for all purposes of this
Indenture and for all purposes of this Indenture shall be deemed to have
been Incurred at such time.
(b) All Designations and Revocations must be evidenced by an Officers'
Certificate delivered to the Trustee attaching a certified copy of the
resolutions of the Board of Directors giving effect to such Designation or
Revocation, as applicable, and certifying compliance with the foregoing
provisions.
(c) Notwithstanding the foregoing, no Subsidiary that was a Subsidiary
Guarantor as of November 25, 2003, shall be permitted to become an Unrestricted
Subsidiary.
SECTION 4.22. Limitation on Lines of Business.
Neither the Company nor any of its Subsidiaries or Unrestricted
Subsidiaries shall directly or indirectly engage to any substantial extent in
any line or lines of business activity other than that which, in the reasonable
good faith judgment of the Board of Directors, is a Related Business.
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets of the Company.
The Company will not, in a single transaction or a series of related
transactions, consolidate with or merge with or into, or convey, transfer or
lease all or substantially all its assets (computed on a consolidated basis) to,
any Person or group of affiliated Persons, unless: (i) the resulting, surviving
or transferee Person shall be the Company or, if not the Company, shall be a
corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia (the "Successor
Company"), and such Successor Company shall expressly assume, by an indenture
supplemental to this Indenture, executed and delivered to the Trustee, all the
obligations of the Company under the Notes and this Indenture (and the
Subsidiary Guarantees shall be confirmed as applying to such Person's
obligations); (ii) at the time of and immediately after giving effect to such
transaction or transactions on a pro forma basis (and treating any Indebtedness
which becomes an obligation of the resulting, surviving or transferee Person or
any Subsidiary as a result of such transaction as having been Incurred by such
Person or such Subsidiary at the time of such transaction), no Default or Event
of Default shall have occurred and be continuing; (iii) immediately after giving
effect to such transaction, the resulting, surviving or transferee Person would
be able to Incur at least $1.00 of Indebtedness pursuant to paragraph (a) of
Section 4.13; and (iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Article V.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of all or substantially all of the properties and assets of one or
more Subsidiaries, the Company's interest in which constitutes all or
substantially all of the properties and assets of the Company shall be deemed to
be the transfer of all or substantially all of the properties and assets of the
Company.
Notwithstanding the foregoing, the Company may merge with or into, or
convey, transfer or lease all or substantially all of its assets to, any
Subsidiary Guarantor, and a Subsidiary Guarantor may merge with or into, or
convey, transfer or lease all or substantially all of its assets to, any other
Subsidiary Guarantor or the Company.
SECTION 5.02. Successor Corporation Substituted for the Company.
Upon any consolidation, combination or merger or any transfer of all or
substantially all of the assets of the Company in accordance with the foregoing,
in which the Company is not the continuing corporation, the Successor Company
formed by such consolidation or into which the Company is merged or to which
such conveyance,
59
lease or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture and the
Notes with the same effect as if such surviving entity had been named as such,
and the predecessor company, in the case of a conveyance, transfer or lease,
shall be released from the obligation to pay the principal of and interest on
the Notes.
SECTION 5.03. Merger, Consolidation and Sale of Assets of Any Subsidiary
Guarantor.
The Company will not permit any Subsidiary Guarantor to consolidate with or
merge with or into, or convey, transfer or lease, in one transaction or a series
of transactions, all or substantially all of its assets to, any Person unless:
(i) the resulting, surviving or transferee Person shall be the Company or a
Subsidiary Guarantor or, if not the Company or such a Subsidiary Guarantor,
shall be a corporation organized and existing under the laws of the jurisdiction
under which such Subsidiary was organized or under the laws of the United States
of America, or any State thereof or the District of Columbia, and such Person
shall expressly assume, by executing a Subsidiary Guarantee, all the obligations
of such Subsidiary, if any, under its Subsidiary Guarantee; (ii) immediately
after giving effect to such transaction or transactions on a pro forma basis
(and treating any Indebtedness which becomes an obligation of the resulting,
surviving or transferee Person as a result of such transaction as having been
issued by such Person at the time of such transaction), no Default or Event of
Default shall have occurred and be continuing; (iii) immediately after giving
effect to such transaction, the Company would be able to Incur at least $1.00 of
Indebtedness pursuant to Section 4.13(a); and (iv) the Company delivers to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such Subsidiary Guarantee, if any,
complies with this Article V. The provisions of clauses (i), (ii) and (iii)
above shall not apply to any one or more transactions which constitute an (a)
Asset Disposition subject to the applicable provisions of Section 4.17 above or
(b) the grant of any Lien on the assets of a Restricted Subsidiary to secure
outstanding Bank Indebtedness, which Lien is permitted by the terms of this
Indenture, or any conveyance or transfer of such assets resulting from an
exercise of remedies in respect of any such Lien.
SECTION 5.04. Successor Corporation Substituted for Subsidiary Guarantor.
Upon any consolidation, combination or merger or any transfer of all or
substantially all of the assets of any Subsidiary Guarantor in accordance with
the foregoing, in which such Subsidiary Guarantor is not the continuing
corporation, the successor Person formed by such consolidation or into which
such Subsidiary Guarantor is merged or to which such conveyance, lease or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, such Subsidiary Guarantor under this Indenture with
the same effect as if such surviving entity had been named as such, and the
predecessor company, in the case of a conveyance, transfer or lease, shall be
released from the obligation to pay the principal of and interest on the Notes.
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any Notes when
the same becomes due and payable (whether or not such payment shall be
prohibited by Article Ten of this Indenture) and the Default continues for
a period of 30 days; or
(2) the Company defaults in the payment of the principal on any Notes
when such principal becomes due and payable (whether or not such payment
shall be prohibited by Article Ten), at maturity, upon optional redemption,
upon required repurchase, upon declaration or otherwise (including the
failure to make a payment to purchase Notes tendered pursuant to a Change
of Control under Section 4.16 or an Offer under Section 4.17); or
(3) the failure by the Company to comply with its obligations under
Section 5.01 above; or
(4) the failure by the Company to comply for 30 days after notice with
any of its obligations under Sections 4.08, 4.10, 4.11, 4.12, 4.13, 4.14,
4.15, 4.16 (other than a failure to purchase the Notes), 4.17 (other than a
failure to purchase the Notes), 4.18, 4.19, 4.20 and 4.21; or
(5) the Company defaults in the observance or performance of any other
covenant, obligation, warranty or agreement contained in this Indenture and
which default continues for a period of 60 days after notice; or
(6) Indebtedness of the Company or any Significant Subsidiary is not
paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total
amount of Indebtedness unpaid or accelerated together with the principal
amount of any other such Indebtedness which is unpaid or which has been
accelerated, exceeds $10.0 million at any time; or
(7) the Company or any Significant Subsidiary of the Company (A)
commences a voluntary case or proceeding under any Bankruptcy Law with
respect to itself, (B) consents to the entry of a judgment, decree or order
for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (C) consents to the appointment of a Custodian of it or for
substantially all of its property, (D) consents to or acquiesces in the
institution of a bankruptcy or an insolvency proceeding against it, (E)
makes a general assignment for the benefit of its creditors, or (F) takes
any corporate action to authorize or effect any of the foregoing; or
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(8) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any Significant Subsidiary of
the Company in an involuntary case or proceeding under any Bankruptcy Law,
which shall (A) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect of the
Company or any such Significant Subsidiary, (B) appoint a Custodian of the
Company or any such Significant Subsidiary or for substantially all of its
property or (C) order the winding-up or liquidation of its affairs; and
such judgment, decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(9) any judgment or decree for the payment of money the portion of
which is not covered by insurance is in an aggregate amount in excess of
$10.0 million shall have been rendered against the Company or any of its
Significant Subsidiaries and is not discharged and either (A) an
enforcement proceeding has been commenced by any creditor upon such
judgment or decree or (B) there is a period of 60 days following such
judgment during which such judgment or decree is not discharged, waived or
the execution thereof stayed (including pending appeal); or
(10) any Subsidiary Guarantee by a Significant Subsidiary ceases to be
in full force and effect or becomes unenforceable or invalid or is declared
null and void (other than in accordance with the terms of the Subsidiary
Guarantee or this Indenture) or any Subsidiary Guarantor that is a
Significant Subsidiary denies or disaffirms its obligations under its
Subsidiary Guarantee.
However, a default under clause (4), (5) or (9) will not constitute an
Event of Default until the Trustee or the Holders of 25% in principal
amount of the outstanding Notes notify the Company of the default and the
Company does not cure such default within the time specified after receipt
of such notice.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default under clause (6) or (10) and any event which with
the giving of notice or the lapse of time would become an Event of Default
under clause (4), (5) or (9), its status and what action the Company is
taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration.
(a) If an Event of Default (other than an Event of Default specified in
Section 6.01(7) or (8) with respect to the Company) occurs and is continuing,
and has not been waived pursuant to Section 6.04, then the Trustee, by written
notice to the Company, or the Holders of at least 25% in principal amount of
outstanding Notes may declare the principal of and accrued but unpaid interest
on all the Notes to be due and payable by notice in writing to the Company and
the Trustee specifying the respective Event of Default and that it is a "notice
of acceleration". Upon any such declaration, such amount shall be immediately
due and payable provided, however, that for so long as the Credit Facility
remains in effect, such declaration shall not become effective until the earlier
of (i) five Business Days following delivery of notice to the
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Senior Credit Facility Representative of the intention to accelerate the Notes
or (ii) the acceleration of any Indebtedness under the Credit Facility.
(b) If an Event of Default specified in Section 6.01(7) or (8) relating to
the Company occurs and is continuing with respect to the Company, the principal
of and interest on all the Notes will ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holders.
(c) The Holders of a majority in principal amount of the Notes may, on
behalf of the Holders of all of the Notes, rescind and cancel an acceleration
and its consequences (i) if the rescission would not conflict with any judgment
or decree, (ii) if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely because of
the acceleration, (iii) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses, disbursements and
advances and all other amounts due to the Trustee pursuant to Section 7.07 and
(iv) in the event of the cure or waiver of an Event of Default of the type
described in Section 6.01(7) or 6.01(8), the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 2.09, 6.02, 6.07 and 9.02, the Holders of a majority in
principal amount of the then outstanding Notes by notice to the Trustee may, on
behalf of the Holders of all of the Notes, waive an existing Default or Event of
Default and its consequences, except a Default in the payment of principal of or
interest on any Note as specified in clauses (1) and (2) of Section 6.01. When a
Default or Event of Default is waived, it is cured and ceases to exist for every
purpose of this Indenture.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal amount of
the then outstanding Notes 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, including,
63
without limitation, any remedies provided for in Section 6.03. Subject to
Section 7.01, however, the Trustee may refuse to follow any direction that the
Trustee reasonably believes conflicts with any law or this Indenture, that the
Trustee reasonably determines may be unduly prejudicial to the rights of another
Holder, or that may involve the Trustee in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction; and provided further, that this provision
shall not affect the rights of the Trustee set forth in Section 7.01(d).
SECTION 6.06. Limitation on Suits.
Subject to Article Seven, if an Event of Default occurs and is continuing,
the Trustee will be under no obligation to exercise any of the rights or powers
under this Indenture at the request or direction of any of the Holders unless
such Holders have offered to the Trustee indemnity or security against any loss,
liability or expense reasonably satisfactory to the Trustee. Except to enforce
the right to receive payment of principal, premium (if any) or interest when
due, no Holder of a Note may pursue any remedy with respect to this Indenture or
the Notes unless (i) such Holder has previously given the Trustee notice that an
Event of Default is continuing, (ii) Holders of at least 25% in principal amount
of the outstanding Notes have requested the Trustee to pursue the remedy, (iii)
such Holders have offered the Trustee security or indemnity against any loss,
liability or expense reasonably satisfactory to the Trustee, (iv) the Trustee
has not complied with such request within 60 days after the receipt thereof and
the offer of security or indemnity and (v) the Holders of a majority in
principal amount of the outstanding Notes have not given the Trustee a direction
inconsistent with such request within such 60-day period.
SECTION 6.07. 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 a Note, on or after
the respective due dates expressed in such Note, 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 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified in
clause (1) or (2) of Section 6.01 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 Notes for the whole amount of principal and
accrued interest remaining unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest at the rate set forth in Section 4.01 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, consultants and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents
64
and counsel) and the Holders allowed in any judicial proceedings relating to the
Company or any other obligor upon the Notes, any of their respective creditors
or any of their respective 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 Holder to make such payments to the
Trustee and, if the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, taxes, disbursements and advances of the
Trustee, its agents, consultants and counsel, and any other amounts due the
Trustee under Section 7.07. The Company's payment obligations under this Section
6.09 shall be secured in accordance with the provisions of Section 7.07
hereunder. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article Six,
it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the Company directly
without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for principal and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal and interest, respectively;
and
Fourth: to the Company or any other obligor on the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a record date and
payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07, or a suit by a Holder or Holders of more than 10% in principal amount of
the outstanding Notes.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise thereof as a prudent
person would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are specifically set
forth in this Indenture and no covenants or obligations shall be implied in
this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained, the Trustee
may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(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 6.02, 6.04 or 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 in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not assured to it.
(e) Whether or not herein expressly provided, 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.
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(f) The Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel and may require an Officers' Certificate, an Opinion of Counsel or both,
which shall conform to Sections 13.04 and 13.05. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or indirectly or by or through
agents or attorneys and the Trustee shall not be responsible for the misconduct
or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action that it takes or omits
to take in good faith which it reasonably believes to be authorized or within
its rights or powers; provided, however that the Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(e) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, notice, request, direction, consent, order, bond, debenture, 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, upon reasonable notice to the Company, to examine the books,
records, and premises of the Company, personally or by agent or attorney and to
consult with the officers and representatives of the Company, including the
Company's accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Holders pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity satisfactory to
the Trustee against the costs, expenses and liabilities which may be incurred by
it in compliance with such request, order or direction.
(g) The Trustee shall not be required to give any bond or surety in respect
of the performance of its powers and duties hereunder.
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(h) The Trustee may determine (i) the execution by any Holder of any
instrument in writing, (ii) the date of such execution or (iii) the authority of
any Person executing the same, in any manner the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(i) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the Notes
shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
(j) The Trustee shall not be charged with knowledge of any default or Event
of Default with respect to the Notes, unless either (1) a Trust Officer shall
have knowledge of such default of Event of Default or (2) written notice of such
default or Event of Default shall have been given to the Trustee by the Company
or by any Holder of the Notes; and
(k) The permissive rights of the Trustee enumerated herein shall not be
construed as duties.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company, any Subsidiary of the
Company, or their respective Affiliates with the same rights it would have if it
were not Trustee. However, if the Trustee acquires any conflicting interest
within the meaning of Section 3.10(b) of the TIA, it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as trustee
or resign. Any Agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Offering Memorandum and the recitals contained herein and in the Notes
shall be taken as statements of the Company and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or adequacy of this Indenture or the Notes, and it shall not be
accountable for the Company's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Company in this Indenture or the
Notes other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default.
If a Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to each Holder notice of the Default within 90 days after
such Default occurs. Except in the case of a Default in payment of principal of,
or interest on, any Note, including an accelerated payment and the failure to
make payment on the purchase date pursuant to a Change in Control under Section
4.16 or on the Purchase Date pursuant to an Offer under Section 4.17 and, except
in the case of a failure to comply with Article Five hereof, the Trustee may
withhold the notice if and so long as its board of directors, the executive
committee of its board of directors or a committee of its Trust Officers in good
faith reasonably determines that
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withholding the notice is in the best interest of the Holders. In addition, the
Company shall deliver to the Trustee, within 120 days after the end of each
fiscal year, a certificate regarding knowledge of the Company's compliance with
all covenants and conditions under this Indenture. The Company also shall
deliver to the Trustee pursuant to Section 6.01, within 30 days after the
occurrence thereof, written notice of any event which would constitute certain
Defaults, their status and what action the Company is taking or proposes to take
in respect thereof.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15, beginning with the May 15 following the
date of this Indenture, the Trustee shall, to the extent that any of the events
described in TIA Section 313(a) occurred within the previous twelve months, but
not otherwise, mail to each Holder a brief report dated as of such date that
complies with TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b) and (c).
The Company shall promptly notify the Trustee if the Notes become listed
on, or delisted from, any stock exchange and the Trustee shall comply with TIA
Section 313(d).
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation 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 fees and expenses,
including out-of-pocket expenses incurred or made by it in connection with the
performance of its duties under this Indenture. Such expenses shall include the
reasonable fees and expenses of the Trustee's agents, consultants, experts and
counsel, except such disbursements, advances and expenses as may be attributable
to its negligence and bad faith.
The Company shall indemnify the Trustee and its agents, employees,
stockholders and directors and officers for, and hold them harmless against, any
loss, liability or expense incurred by them, arising out of or in connection
with the administration of this trust including the reasonable costs and
expenses of defending themselves against any claim or liability in connection
with the exercise or performance of any of their rights, powers or duties
hereunder. The Company need not reimburse any expense or indemnify against any
loss, liability or expense Incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it may seek
indemnity. At the Trustee's sole discretion, the Company shall defend the claim
and the Trustee shall cooperate and may participate in the defense; provided
that any settlement of a claim shall be approved in writing by the Trustee.
Alternatively, the Trustee may at its option have separate counsel of its own
choosing and the Company shall pay the reasonable fees and expenses of such
counsel; provided that the Company will not be required to pay such fees and
expenses if it assumes the Trustee's defense and there is no conflict of
interest between the Company and the Trustee in connection with such defense as
reasonably determined by the Trustee. The Company need not pay for any
settlement made without its written consent. The Company need not reimburse any
expense or indemnify against any loss or liability to the extent incurred by the
Trustee through its negligence, bad faith or willful misconduct.
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To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or interest on particular Notes. The Trustee's
right to receive payment of any amounts due under this Section 7.07 shall not be
subordinate to any other liability or indebtedness of the Company (even though
the Notes may be subordinate to such other liability or indebtedness).
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(7) or (8) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law; provided, however, that this shall not
affect the Trustee's rights as set forth in the preceding paragraph or Section
6.10.
The provisions of this Section 7.07 shall survive the resignation or
removal of the Trustee and the termination or discharge of this Indenture.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in writing
at least 30 days prior to the date of the proposed resignation. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee by
so notifying the Company and the Trustee and may appoint a successor Trustee.
The Company may remove the Trustee if:
(A) the Trustee fails to comply with Section 7.10;
(B) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(C) a receiver or other public officer takes charge of the Trustee or
its property; or
(D) the Trustee becomes incapable of acting.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
If the Trustee resigns or is removed as Trustee or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder of
such event and shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to 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
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Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
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 principal amount of the then outstanding Notes 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 Holder 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 7.09. 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,
the resulting, surviving or transferee corporation without any further act
shall, if such resulting, surviving or transferee corporation is otherwise
eligible hereunder, be the successor Trustee; provided that such corporation
shall be otherwise qualified and eligible under this Article Seven.
If at the time such successor or successors by merger, conversion,
consolidation or transfer of assets to the Trustee shall succeed to the trust
created by this Indenture any of the Notes shall have been authenticated but not
delivered, any successor to the Trustee may adopt a certificate of
authentication of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Sections 310(a)(1), (2) and (5). The Trustee (or, in the case of a
corporation included in a bank holding company system, the related bank holding
company) shall have a combined capital and surplus of at least $50 million as
set forth in its most recent published annual report of condition. In addition,
if the Trustee is a corporation included in a bank holding company system, the
Trustee, independently of such bank holding company, shall meet the capital
requirements of TIA Section 310(a)(2). The Trustee shall comply with TIA Section
310(b); provided, however, that there shall be excluded from the operation of
TIA Section 310(b)(1) any indenture or indentures under which other securities,
or certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met. The provisions of TIA Section 310 shall apply to the Company,
as obligor of the Notes.
SECTION 7.11. Preferential Collection of Claims Against Company.
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The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Discharge of Liability on Notes; Defeasance.
(a) When (i) the Company delivers to the Trustee all outstanding Notes
(other than Notes replaced pursuant to Section 2.07) for cancellation or (ii)
all outstanding Notes have become due and payable at maturity or will be due and
payable within 60 days as a result of the mailing of a notice of redemption
pursuant to Article 3 hereof, in each case, and the Company irrevocably deposits
with the Trustee funds sufficient to pay at maturity or upon redemption all
outstanding Notes, including interest thereon to maturity or such redemption
date (other than Notes replaced pursuant to Section 2.07), and if in either case
the Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 8.01(c), cease to be of further effect. The
Trustee shall acknowledge satisfaction and discharge of this Indenture on demand
of the Company accompanied by an Officers' Certificate and an Opinion of Counsel
as to the satisfaction of all conditions to such satisfaction and discharge of
this Indenture and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may
terminate (i) all its obligations under the Notes and this Indenture ("legal
defeasance option") or (ii) its obligations under Sections 4.10 through 4.22 and
the operation of Section 6.01(4) and the limitations contained in clause (iii)
of the first paragraph of each Section 5.01 and Section 5.03 ("covenant
defeasance option"). The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the Notes
may not be accelerated because of an Event of Default. If the Company exercises
its covenant defeasance option, payment of the Notes may not be accelerated
because of an Event of Default specified in Section 6.01(4) or because of the
failure of the Company to comply with clause (iii) of the first paragraph of
each Section 5.01 and Section 5.03. If the Company exercises its legal
defeasance option or its covenant defeasance option, each Subsidiary Guarantor,
if any, shall be released from all its obligations under its Subsidiary
Guarantee.
Upon satisfaction of the conditions set forth herein and upon request of
the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding paragraphs (a) and (b) above, the Company's obligations
in Sections 2.03, 2.04, 2.05, 2.07, 2.08, 7.07, 7.08, 8.05, 8.06 and the
Appendix shall survive until the Notes have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive.
SECTION 8.02. Conditions to Defeasance.
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The Company may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of, interest
and premium, if any, on the Notes to maturity or redemption (including, in
the case of payment of principal, interest and premium, if any, to
redemption, under arrangements reasonably satisfactory to the Trustee
providing for redemption pursuant to irrevocable instructions delivered to
the Trustee prior to 60 days before a Redemption Date), as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm expressing their opinion that
the payments of principal and interest when due and without reinvestment on
the deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay principal, premium, if any, and interest when due on all
outstanding Notes to maturity or redemption, as the case may be;
(3) (x) no Default or Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit and (y) no
Event of Default under Section 6.01(7) or (8) shall occur at any time in
the period ending on the 123rd day after the date of such deposit (it being
understood that the condition set forth in the preceding clause (y) is a
condition subsequent which shall not be deemed satisfied until the
expiration of such 123-day period, but in the case of the covenant
defeasance, the covenants which are defeased under Section 8.01(b) will
cease to be in effect unless an Event of Default under Section 6.01(7) or
(8) occurs during such period);
(4) the Company delivers to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors
of the Company and the deposit is not prohibited under any Designated
Senior Indebtedness;
(5) neither the deposit nor the defeasance shall result in a default
or event of default under any other material agreement to which the Company
is a party or by which the Company is bound and neither the deposit nor the
defeasance shall be prohibited by Article 10;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(7) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has
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received from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of this Indenture there has been a change
in the applicable Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the
Noteholders will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred;
(8) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Noteholders will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Notes as contemplated by this Article 8
have been complied with.
Before or after a deposit, the Company may make arrangements satisfactory
to the Trustee for the redemption of Notes at a future date in accordance with
Article Three.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article Eight. It shall apply the deposited
money and the money from U.S. Government Obligations through the Paying Agent
and in accordance with this Indenture to the payment of principal of and
interest on the Notes. Money and securities so held in trust are not subject to
Article 10.
SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the Company,
upon delivery of an Officers' Certificate stating that such payment does not
violate the terms of this Indenture, any
excess money or securities held by them at any time, subject to Section 7.07.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon its written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Noteholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
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SECTION 8.06. Reinstatement.
If the funds deposited with the Trustee to effect legal defeasance or
covenant defeasance are insufficient to pay the principal of, premium, if any,
and interest on the Notes when due, then the obligations of the Company under
the Indenture will be revived and no such defeasance will be deemed to have
occurred.
If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or
U.S. Government Obligations in accordance with this Article Eight by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article Eight until such time as the Trustee or Paying Agent is permitted to
apply all such U.S. Legal Tender or U.S. Government Obligations in accordance
with this Article 8; provided, however, that, if the Company has made any
payment of interest on or principal of any Notes because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the U.S. Legal Tender or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee,
together, may amend or supplement this Indenture or the Notes without notice to
or consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency; provided
that such amendment or supplement does not, in the reasonable opinion of
the Trustee, adversely affect the rights of any Holder in any material
respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to or in place of
certificated Notes (provided that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code, or in a manner
such that the uncertificated Notes are described in Section 163(f)(2)(B) of
the Code);
(4) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(5) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power conferred upon the Company;
(6) to add Guarantees with respect to the Notes;
(7) to secure the Notes; or
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(8) to make any other change that does not adversely affect the rights
of any Holders hereunder;
provided that the Company has delivered to the Trustee an Opinion of
Counsel stating that such amendment or supplement complies with the
provisions of this Section 9.01.
After an amendment, supplement or waiver under this Section 9.01
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee, together, with the written consent of the Holder or
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes, may amend or supplement this Indenture or the Notes, without
notice to any other Holders. Subject to Section 6.07, the Holder or Holders of
at least a majority in aggregate principal amount of the then outstanding Notes
may waive compliance by the Company with any provision of this Indenture or the
Notes without notice to any other Holder. No amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, shall, without the consent of each
Holder of each Note affected thereby:
(1) reduce the amount of Notes whose Holders must consent to an
amendment or waiver;
(2) reduce the rate of or extend the time for payment of interest on
any Notes;
(3) reduce the principal of or change or have the effect of changing
the Stated Maturity of any Note, or change the date on which any Notes may
be subject to repurchase, or reduce the premium payable upon the redemption
of any Note or change the time at which any Note may be redeemed in
accordance with Article 3, or alter the provisions (including definitions)
set forth in Section 4.16 in a manner adverse to the Holders;
(4) make any Notes payable in money or payable in a place other than
that stated in the Notes;
(5) make any change in Section 6.04 or Section 6.07 or the second
sentence of this Section;
(6) amend, modify, change or waive any provision of this Section 9.02;
(7) modify Articles Ten or Twelve or the definitions used in Articles
Ten or Twelve to adversely affect the Holders of the Notes; or
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(8) make any change in any Subsidiary Guarantee that would adversely
affect the Holders.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment, supplement or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment, supplement or waiver.
SECTION 9.03. Effect on Senior Indebtedness.
No amendment of this Indenture shall adversely affect the rights of any
holder of Senior Indebtedness of the Company or any Restricted Subsidiary under
Article Ten or Twelve of this Indenture, without the consent of such holder (or
its Representative).
SECTION 9.04. Compliance with TIA.
If at the time of an amendment to the Indenture or the Notes, this
Indenture shall be qualified under the TIA, every amendment, waiver or
supplement of this Indenture or the Notes shall comply with the TIA as then in
effect.
SECTION 9.05. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder of
a Note or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. Subject
to the following paragraph, any such Holder or subsequent Holder may revoke the
consent as to such Holder's Note or portion of such Note by notice to the
Trustee or the Company received before the date the amendment, supplement or
waiver becomes effective.
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, which record date shall be (i) the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee prior to such solicitation pursuant to Section
2.05 above or (ii) such other date as the Company may designate. 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
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 180 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder, unless it makes a change described in any of clauses (1) through
(8) of Section 9.02, in
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which case, the amendment, supplement or waiver shall bind only each Holder of a
Note who has consented to it and every subsequent Holder of a Note or portion of
a Note that evidences the same debt as the consenting Holder's Note; provided
that, without the consent of a Holder, any such waiver shall not impair or
affect the right of such Holder to receive payment of principal of and interest
on a Note, on or after the respective due dates expressed in such Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates.
SECTION 9.06. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of such Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note 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 Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Any such notation
or exchange shall be made at the sole cost and expense of the Company. Failure
to make the appropriate notation or to issue a new Note shall not affect the
validity of such amendment, supplement or waiver.
SECTION 9.07. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized
pursuant to this Article Nine; provided 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. The Trustee
shall be entitled to receive in addition to the documents required by Section
13.04, 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 Nine is authorized or
permitted by this Indenture. Such Opinion of Counsel shall not be an expense of
the Trustee.
SECTION 9.08. Payment for Consent.
Neither the Company nor any Affiliate of the Company shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Notes, unless such consideration is offered to be paid to all Holders
that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder of the Notes, by its
acceptance thereof, likewise covenants and agrees, that all Notes shall be
issued subject to the provisions of this Article Ten; and each Person holding
any Note, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that the payment of all
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Obligations on the Notes by the Company shall, to the extent and in the manner
herein set forth, be subordinated and junior in right of payment to the prior
payment in full in cash of all Senior Indebtedness of the Company; that the
subordination is for the benefit of, and shall be enforceable directly by, the
holders of Senior Indebtedness of the Company, and that each holder of Senior
Indebtedness of the Company whether now outstanding or hereafter created,
incurred, assumed or guaranteed shall be deemed to have acquired Senior
Indebtedness of the Company in reliance upon the covenants and provisions
contained in this Indenture and the Notes. Only Indebtedness of the Company that
is Senior Indebtedness of the Company will rank senior to the Notes in
accordance with the provisions of the Indenture. The Notes will in all respects
rank pari passu with all other Senior Subordinated Indebtedness of the Company.
Unsecured Indebtedness is not deemed to be subordinated or junior to secured
Indebtedness merely because it is unsecured. The terms of the subordination
provisions described in this Article Ten shall not apply to payments from money
or the proceeds of U.S. Government Obligations in trust by the Trustee for the
payment of principal and interest on the Notes pursuant to the provisions
described in Article Eight unless such payments were in violation of Designated
Senior Indebtedness.
SECTION 10.02. No Payment on Notes in Certain Circumstances.
(a) The Company may not, and no other Person on behalf of the Company may
pay principal of, premium (if any) or interest on the Notes or make any other
payments with respect to the Notes or make any deposit pursuant to the
provisions described under Article Eight above and may not repurchase, redeem or
otherwise retire any Notes (collectively, "pay the Notes") if (i) any amount of
principal, interest or other payments due under any Designated Senior
Indebtedness of the Company has not been paid when due beyond any applicable
grace period whether at maturity, upon redemption, by declaration or otherwise
or (ii) any other default on Designated Senior Indebtedness of the Company
occurs and the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms unless, in either case, the default has been cured or
waived in writing and any such acceleration has been rescinded or such
Designated Senior Indebtedness has been paid in full, after which the Company
shall resume making any and all required payments in respect of the Notes,
including any missed payments. However, the Company may pay the Notes without
regard to the foregoing if the Company and the Trustee receive written notice
approving such payment from the Representative of the Designated Senior
Indebtedness of the Company with respect to which either of the events set forth
in clause (i) or (ii) of the immediately preceding sentence has occurred and is
continuing, after which the Company shall resume making any and all required
payments in respect of the Notes, including any missed payments. During the
continuance of any default (other than a default described in clause (i) or (ii)
of the second preceding sentence) with respect to any Designated Senior
Indebtedness of the Company pursuant to which the maturity thereof may be
accelerated either immediately without further notice (except such notice as may
be required to effect such acceleration) or upon the expiration of any
applicable grace periods, the Company may not pay the Notes for a period (a
"Payment Blockage Period") commencing upon the receipt by the Trustee (with a
copy to the Company) of written notice (a "Blockage Notice") of such default
from the Representative of the holders of such Designated Senior Indebtedness of
the Company specifying an election to effect a Payment Blockage Period and
ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated (A) by written notice to the Trustee and the Company from the Person
or Persons who gave such Blockage Notice (solely as
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evidenced by written notice to the Trustee by the Representative of such
Designated Senior Indebtedness which notice shall be promptly delivered), (B)
because the default giving rise to such Blockage Notice is no longer continuing
or (C) because such Designated Senior Indebtedness of the Company has been
repaid in full). Notwithstanding the provisions described in the immediately
preceding sentence (but subject to the provisions contained in the first
sentence of this paragraph), unless the holders of such Designated Senior
Indebtedness of the Company or the Representative of such holders has
accelerated the maturity of such Designated Senior Indebtedness of the Company,
the Company may resume payments on the Notes after the end of such Payment
Blockage Period, including any missed payments. The Notes shall not be subject
to more than one Payment Blockage Period in any consecutive 360-day period,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness of the Company during such period. No default which exists or was
continuing on the date of commencement of any Blockage Period with respect to
the Designated Senior Indebtedness of the Company shall be, or be made, the
basis for the commencement of a second Blockage Period by the Representative of
such Designated Senior Indebtedness of the Company whether or not within a
period of 360 consecutive days unless such default shall have been cured or
waived in writing for a period of not less than 90 consecutive days. (It being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Blockage Period that, in either case, would give rise to a default pursuant to
any provisions under which a default previously existed or was continuing shall
constitute a new default for this purpose.)
(b) If, notwithstanding the foregoing, any payment shall be received by the
Trustee or any Holder when such payment is prohibited by Section 10.02(a), such
payment shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of such Senior Indebtedness of the Company (pro rata
to such holders on the basis of the respective amount of such Senior
Indebtedness of the Company held by such holders) or their respective
Representatives, as their respective interests may appear. The Trustee shall be
entitled to rely on information regarding amounts then due and owing on the
Senior Indebtedness of the Company, if any, received from the holders of Senior
Indebtedness of the Company (or their Representatives) or, if such information
is not received from such holders or their Representatives, from the Company and
only amounts included in the information provided to the Trustee shall be paid
to the holders of Senior Indebtedness of the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 10.03 would be applicable.
Nothing contained in this Article Ten shall limit the right of the Trustee
or the Holders of Notes to take any action to accelerate the maturity of the
Notes pursuant to Section 6.02 or to pursue any rights or remedies hereunder;
provided that all Senior Indebtedness of the Company thereafter due or declared
to be due shall first be paid in full in cash before the Holders are entitled to
receive any payment of any kind or character with respect to Obligations on the
Notes.
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SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to creditors upon any
total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Indebtedness
of the Company shall first be paid in full in cash, or such payment duly
provided for to the satisfaction of the holders of Senior Indebtedness of the
Company, before any payment or distribution of any kind or character is made on
account of any Obligations on the Notes, or for the acquisition of any of the
Notes for cash or property or otherwise. Upon any total or partial liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of creditors
or marshaling of assets of the Company or in a bankruptcy, reorganization,
insolvency, receivership or other similar proceeding, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Notes or the Trustee under
this Indenture would be entitled, except for the provisions hereof, shall be
paid by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Holders or by the Trustee under this Indenture if received by them, directly to
the holders of Senior Indebtedness of the Company (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness of the Company held
by such holders) or their respective Representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
of the Company may have been issued, as their respective interests may appear,
for application to the payment of Senior Indebtedness of the Company remaining
unpaid until all such Senior Indebtedness of the Company has been paid in full
in cash after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of Senior Indebtedness of the Company.
(b) To the extent any payment of Senior Indebtedness of the Company
(whether by or on behalf of the Company, as proceeds of security or enforcement
of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the Senior
Indebtedness of the Company or part thereof originally intended to be satisfied
shall be deemed to be reinstated and outstanding as if such payment had not
occurred.
(c) If, notwithstanding the foregoing, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, shall be received by any Holder or the Trustee when such payment or
distribution is prohibited by this Section 10.03, such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Indebtedness of the Company (pro rata to such holders
on the basis of the respective amount of Senior Indebtedness of the Company held
by such holders) or their respective Representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
of the Company may have been issued, as their respective interests may appear,
for application to the payment of Senior Indebtedness of the
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Company remaining unpaid until all such Senior Indebtedness of the Company has
been paid in full in cash, after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Senior
Indebtedness of the Company. Notwithstanding the foregoing, the provisions of
this Section 10.03(c) shall not apply to the fees and expenses due to the
Trustee pursuant to Section 7.07 hereof, which fees and expenses shall be paid
directly to the Trustee.
(d) 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 all or substantially all of its
assets, to another corporation upon the terms and conditions provided in Article
Five hereof and as long as permitted under the terms of the Senior Indebtedness
of the Company 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, assume the
Company's obligations hereunder in accordance with Article Five hereof.
SECTION 10.04. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Ten or elsewhere in this Indenture shall
prevent (i) the Company, except under the conditions described in Sections 10.02
and 10.03, from making payments at any time for the purpose of making payments
of principal of and interest on the Notes, or from depositing with the Trustee
any moneys for such payments, or (ii) in the absence of actual knowledge by the
Trustee that a given payment would be prohibited by Section 10.02 or 10.03, the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of, and interest on, the Notes to the Holders
entitled thereto unless at least two Business Days prior to the date upon which
such payment would otherwise become due and payable a Trust Officer shall have
actually received the written notice provided for in the third sentence of
Section 10.02(a) or in Section 10.07 (provided that, notwithstanding the
foregoing, such application shall otherwise be subject to the provisions of the
first sentence of Section 10.02(a), 10.02(b) and Section 10.03). The Company
shall give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Company.
SECTION 10.05. Subrogation.
Subject to the payment in full in cash of all Senior Indebtedness of the
Company, the Holders of the Notes shall be subrogated to the rights of the
holders of Senior Indebtedness of the Company to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Indebtedness of the Company until the Notes shall be paid in full; and,
for the purposes of such subrogation, no such payments or distributions to the
holders of the Senior Indebtedness of the Company by or on behalf of the Company
or by or on behalf of the Holders by virtue of this Article Ten which otherwise
would have been made to the Holders shall, as between the Company and the
Holders of the Notes, be deemed to be a payment by the Company to or on account
of the Senior Indebtedness of the Company, it being understood that the
provisions of this Article Ten are and are intended solely for the purpose of
defining the relative rights of the Holders of the Notes, on the one hand, and
the holders of the Senior Indebtedness of the Company, on the other hand. If any
payment or distribution to which the Holders would otherwise have been entitled
but for the application of the provisions of this Article Ten, shall have been
applied, pursuant to the provisions of this Article Ten, to the
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payment of amounts payable under Senior Indebtedness of the Company, then the
Holders shall be entitled to receive from the holders of such Senior
Indebtedness any payments or distributions received by such holders of Senior
Indebtedness in excess of the amount sufficient to pay all amounts payable under
or in respect of such Senior Indebtedness in full in cash.
SECTION 10.06. Obligations of the Company Unconditional.
Nothing contained in this Article Ten or elsewhere in this Indenture or in
the Notes is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Indebtedness of the Company, and the Holders,
the obligation of the Company, which is absolute and unconditional, to pay to
the Holders the principal of and any interest on the Notes 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 Indebtedness of the Company, nor shall
anything herein or therein prevent the Holder of any Note or the Trustee on its
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
SECTION 10.07. 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 Notes pursuant to the provisions of this Article Ten.
Regardless of anything to the contrary contained in this Article Ten or
elsewhere in this Indenture, the Trustee shall not be charged with knowledge of
the existence of any default or event of default with respect to any Senior
Indebtedness of the Company 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 from the Company, or from a holder of Senior
Indebtedness of the Company or a Representative therefor and, prior to the
receipt of any such written notice, the Trustee shall be entitled to assume (in
the absence of actual knowledge to the contrary) that no such facts exist.
If the Trustee determines in good faith that any evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness of the
Company to participate in any payment or distribution pursuant to this Article
Ten, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amounts of Senior Indebtedness of the
Company 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 Ten, 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 10.08. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article Ten, the Trustee, subject to the provisions of Article Seven
hereof, and the Holders of the
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Notes shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any insolvency, bankruptcy, receivership,
dissolution, winding-up, liquidation, reorganization or similar case or
proceeding is pending so long as such order gives effect to the provisions of
this Article Ten, or upon a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, receiver, assignee for the benefit of creditors, agent or
other person making such payment or distribution, delivered to the Trustee or
the Holders of the Notes, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness of the Company 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 Ten.
SECTION 10.09. Trustee's Relation to Senior Indebtedness.
The Trustee and any agent of the Company or the Trustee shall be entitled
to all the rights set forth in this Article Ten with respect to any Senior
Indebtedness of the Company 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 Indebtedness of the Company and nothing in this Indenture shall deprive
the Trustee or any such agent of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Ten, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness of
the Company 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
Indebtedness of the Company.
Whenever a distribution is to be made or a notice given to holders or
owners of Senior Indebtedness of the Company, the distribution may be made and
the notice may be given to their Representative, if any.
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness of the
Company 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 be charged
with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness of the Company may, at any time and from time to
time, without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Notes and without impairing
or releasing the subordination provided in this Article Ten or the obligations
hereunder of the Holders of the Notes to the holders of the Senior Indebtedness
of the Company, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness of the
84
Company, or otherwise amend or supplement in any manner Senior Indebtedness of
the Company, or any instrument evidencing the same or any agreement under which
Senior Indebtedness of the Company is outstanding; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness of the Company; (iii) release any Person liable in any
manner for the payment or collection of Senior Indebtedness of the Company; and
(iv) exercise or refrain from exercising any rights against the Company and any
other Person.
SECTION 10.11. Noteholders Authorize Trustee To Effectuate Subordination of
Notes.
Each Holder of Notes by its acceptance of them authorizes and expressly
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate, as between the holders of Senior Indebtedness of the
Company and the Holders of Notes, the subordination provided in this Article
Ten, and appoints the Trustee its 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 Notes and accrued
interest in the form required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the form
required in such proceeding prior to 30 days before the expiration of the time
to file such claim or claims, then the holders of the Senior Indebtedness of the
Company or their Representative are or is hereby authorized to have the right to
file and are or is hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Notes. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness of the Company or
their Representative to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee or the holders of Senior Indebtedness of the Company or their
Representative to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 10.12. This Article Ten Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest on the
Notes by reason of any provision of this Article Ten will not be construed as
preventing the occurrence of an Event of Default.
Nothing contained in this Article Ten shall limit the right of the Trustee
or the Holders to take any action or accelerate the maturity of the Notes
pursuant to Article Six or to pursue any rights or remedies hereunder or under
applicable law, subject to the rights, if any, under this Article Ten of the
holders from time to time, of Senior Indebtedness of the Company.
SECTION 10.13. Trustee's Compensation Not Prejudiced.
Nothing in this Article Ten will apply to amounts due to the Trustee
pursuant to other sections in this Indenture
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SECTION 10.14. Acceleration of Payment of Notes.
If payment of the Notes is accelerated because of an Event of Default, the
Company or the Trustee shall promptly notify the holders of Designated Senior
Indebtedness of the Company or the Representative of such holders of the
acceleration (in the case of the Trustee, only to the extent of its actual
knowledge of such holders or the Representative of such holders).
ARTICLE ELEVEN
GUARANTEES
SECTION 11.01. Unconditional Guarantee.
Each of the Subsidiary Guarantors hereby unconditionally jointly and
severally guarantees (such guarantee to be referred to herein as the "Subsidiary
Guarantee") to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, that: (i) the principal of
and interest on the Notes 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, if any, and interest on any interest, to the
extent lawful, of the Notes and all other obligations of the Company to the
Holders or the Trustee under the Indenture or the Notes will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and (ii)
in case of any extension of time of payment or renewal of any Notes or of any
such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration or
otherwise.
Each Subsidiary Guarantor further agrees that, as between such Subsidiary
Guarantor on 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 purposes of the Subsidiary Guaranty, 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 such Subsidiary
Guarantor for the purposes of the Subsidiary Guaranty.
Each of the Subsidiary Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes 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 of the Subsidiary Guarantors 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
Subsidiary Guarantee will not be discharged except by complete performance of
the obligations contained in the Notes, this Indenture and in the Subsidiary
Guarantee. If any Noteholder or the Trustee is required by any court or
otherwise to return to the Company, any
86
Subsidiary Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to the Company or any Subsidiary Guarantor, any
amount paid by the Company or such Subsidiary Guarantor to the Trustee or such
Noteholder, the Subsidiary Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each of the Subsidiary Guarantors
hereby agrees that, in the event of default in the payment of principal (or
premium, if any) or interest on such Notes, whether at their Stated Maturity, by
acceleration, called for redemption, purchase or otherwise, legal proceedings
may be instituted by the Trustee on behalf of, or by, the Holder of such Notes,
subject to the terms and conditions set forth in this Indenture, directly
against each of the Subsidiary Guarantors to enforce the Subsidiary Guarantee
without first proceeding against the Company. Each Subsidiary Guarantor agrees
that if, after the occurrence and during the continuance of an Event of Default,
the Trustee or any Holders are prevented by applicable law from exercising their
respective rights to accelerate the maturity of the Notes, to collect interest
on the Notes, or to enforce any other right or remedy with respect to the Notes,
the Subsidiary Guarantors agree to pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been due and
payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
SECTION 11.02. Subordination of Subsidiary Guarantee.
The obligations of each Subsidiary Guarantor to the Holders of the Notes
and to the Trustee pursuant to the Subsidiary Guarantee and this Indenture are
expressly subordinate and subject in right of payment to the prior payment in
full of all Senior Indebtedness of such Subsidiary Guarantor, to the extent and
in the manner provided in Article Twelve.
SECTION 11.03. Severability.
In case any provision of the Subsidiary 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 11.04. Release of Subsidiary Guarantor from the Subsidiary
Guarantee.
Upon the sale or disposition (whether by merger, stock purchase, asset sale
or otherwise) of a Subsidiary Guarantor (or all or substantially all of its
assets) to an entity which is not the Company or a Subsidiary or Affiliate of
the Company and which sale or disposition is otherwise in compliance with the
terms of this Indenture or pursuant to a foreclosure on the capital stock of
such Subsidiary Guarantor in accordance with the Credit Facility, such
Subsidiary Guarantor shall be deemed released from all obligations under this
Article Eleven without any further action required on the part of the Trustee or
any Holder.
The Trustee shall 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 11.04.
SECTION 11.05. Limitation on Amount Guaranteed; Contribution by Subsidiary
Guarantors.
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(a) Anything contained in this Indenture or the Subsidiary Guaranty to the
contrary notwithstanding, if any Fraudulent Transfer Law (as hereinafter
defined) is determined by a court of competent jurisdiction to be applicable to
the obligations of any Subsidiary Guarantor under the Subsidiary Guarantee, such
obligations of such Subsidiary Guarantor under the Subsidiary Guarantee shall be
limited to a maximum aggregate amount equal to the largest amount that would not
render its obligations under the Subsidiary Guarantee subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the United
States Code or any applicable provisions of comparable state law (collectively,
the "Fraudulent Transfer Laws"), in each case after giving effect to all other
liabilities of such Subsidiary Guarantor, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of such Subsidiary Guarantor (x) in respect of intercompany
Indebtedness to Company or other Affiliates of Company to the extent that such
Indebtedness would be discharged in an amount equal to the amount paid by such
Subsidiary Guarantor under the Subsidiary Guaranty and (y) under any Guarantee
of Subordinated Indebtedness which Guarantee contains a limitation as to maximum
amount similar to that set forth in this subsection 11.05(a), pursuant to which
the liability of such Subsidiary Guarantor under the Subsidiary Guarantee is
included in the liabilities taken into account in determining such maximum
amount) and after giving effect as assets to the value (as determined under the
applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, reimbursement, indemnification or contribution of such Subsidiary
Guarantor pursuant to applicable law or pursuant to the terms of any agreement
(including without limitation any such right of contribution under subsection
11.05(b)).
(b) The Subsidiary Guarantors together desire to allocate among themselves
in a fair and equitable manner, their obligations arising under the Subsidiary
Guarantee. Accordingly, if any payment or distribution is made on any date by
any Subsidiary Guarantor under the Subsidiary Guarantee (a "Funding Subsidiary
Guarantor") that exceeds its Fair Share (as defined below) as of such date, that
Funding Subsidiary Guarantor shall be entitled to a contribution from each of
the other Subsidiary Guarantors in the amount of such other Subsidiary
Guarantor's Fair Share Shortfall (as defined below) as of such date, with the
result that all such contributions will cause each Subsidiary Guarantor's
Aggregate Payments (as defined below) to equal its Fair Share as of such date.
"Fair Share" means, with respect to a Subsidiary Guarantor as of any date of
determination, an amount equal to (i) the ratio of (x) the Adjusted Maximum
Amount (as defined below) with respect to such Subsidiary Guarantor to (y) the
aggregate of the Adjusted Maximum Amounts with respect to all Subsidiary
Guarantors, multiplied by (ii) the aggregate amount paid or distributed on or
before such date by all Funding Subsidiary Guarantors under the Subsidiary
Guarantee in respect of the obligations guarantied. "Fair Share Shortfall"
means, with respect to a Subsidiary Guarantor as of any date of determination,
the excess, if any, of the Fair Share of such Subsidiary Guarantor over the
Aggregate Payments of such Subsidiary Guarantor. "Adjusted Maximum Amount"
means, with respect to a Subsidiary Guarantor as of any date of determination,
the maximum aggregate amount of the obligations of such Subsidiary Guarantor
under the Subsidiary Guarantee, determined as of such date in accordance with
subsection 11.05(a); provided that, solely for purposes of calculating the
Adjusted Maximum Amount with respect to any Subsidiary Guarantor for purposes of
this subsection 11.05(b), any assets or liabilities of such Subsidiary Guarantor
arising by virtue of any rights to subrogation, reimbursement or indemnification
or any rights to or obligations of contribution hereunder shall not be
considered as assets or liabilities of such Subsidiary
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Guarantor. "Aggregate Payments" means, with respect to a Subsidiary Guarantor as
of any date of determination, an amount equal to (i) the aggregate amount of all
payments and distributions made on or before such date by such Subsidiary
Guarantor in respect of the Subsidiary Guarantee (including, without limitation,
in respect of this subsection 11.05(b) minus (ii) the aggregate amount of all
payments received on or before such date by such Subsidiary Guarantor from the
other Subsidiary Guarantors as contributions under this subsection 11.05(b)).
The amounts payable as contributions hereunder shall be determined as of the
date on which the related payment or distribution is made by the applicable
Funding Subsidiary Guarantor. The allocation among Subsidiary Guarantors of
their obligations as set forth in this subsection 11.05(b) shall not be
construed in any way to limit the liability of any Subsidiary Guarantor under
this Indenture or under the Subsidiary Guaranty.
SECTION 11.06. Waiver of Subrogation.
Until payment in full is made of the Notes and all other obligations of the
Company to the Holders or the Trustee hereunder and under the Notes, each
Subsidiary Guarantor hereby irrevocably waives any claim or other rights which
it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of such Subsidiary Guarantor's
obligations under the Subsidiary Guarantee and this Indenture, including without
limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Notes against the Company, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including, without
limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or any other manner, payment
or security on account of such claim or other rights. If any amount shall be
paid to any Subsidiary Guarantor in violation of the preceding sentence and the
Notes shall not have been paid in full, such amount shall have been deemed to
have been paid to such Subsidiary Guarantor for the benefit of, and held in
trust for the benefit of, the Holders of the Notes, and shall forthwith be paid
to the Trustee for the benefit of such Holders to be credited and applied upon
the Notes, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Subsidiary Guarantor acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 11.06 is knowingly made
in contemplation of such benefits.
SECTION 11.07. Execution of Subsidiary Guarantee.
To evidence its guarantee to the Noteholders set forth in this Article
Eleven, each Subsidiary Guarantor hereby agrees to execute the Subsidiary
Guarantee in substantially the form included in Exhibits A and Exhibit B, which
shall be endorsed on such Note ordered to be authenticated and delivered by the
Trustee. Each Subsidiary Guarantor hereby agrees that the Subsidiary Guarantee
set forth in this Article Eleven shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of the Subsidiary
Guarantee. The Subsidiary Guarantee shall be signed on behalf of each Subsidiary
Guarantor by one Officer of such Subsidiary Guarantor (each of whom shall, in
each case, have been duly authorized by all requisite corporate actions) prior
to the authentication of the Note on which it is endorsed, and the delivery of
such Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subsidiary Guarantee on behalf of such Subsidiary
Guarantor.
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Such signatures upon the Subsidiary Guarantee may be by manual or facsimile
signature of such officers and may be imprinted or otherwise reproduced on the
Subsidiary Guarantee, and in case any such Officer who shall have signed the
Subsidiary Guarantee shall cease to be such officer before the Note on which the
Subsidiary Guarantee is endorsed shall have been authenticated and delivered by
the Trustee or disposed of by the Company, such Note nevertheless may be
authenticated and delivered or disposed of as though the person who signed the
Subsidiary Guarantee had not ceased to be such Officer of such Subsidiary
Guarantor.
SECTION 11.08. Waiver of Stay, Extension or Usury Laws.
Each Subsidiary Guarantor jointly and severally covenants (to the extent
that it may lawfully do so) that it will 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 that would prohibit or forgive such
Subsidiary Guarantor from performing the Subsidiary Guarantee 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) each Subsidiary Guarantor hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 11.09. Effectiveness of Subsidiary Guarantee.
The Subsidiary Guarantee shall remain in full force and effect and continue
to be effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Notes, whether as a "voidable
preference," "fraudulent transfer," or otherwise, all as though such a payment
or performance had not been made. If any payments, or any part thereof, is
rescinded, reduced, restored or returned, the Notes shall, to the fullest extent
permitted by law, be reinstituted and deemed reduced only by such amount paid
and not so rescinded, reduced, restored or returned.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Subsidiary Guarantee Obligations Subordinated to Senior
Indebtedness of Subsidiary Guarantors.
Each Subsidiary Guarantor covenants and agrees, and each Holder of the
Notes, by its acceptance thereof, likewise covenants and agrees, that any
payment of obligations by each Subsidiary Guarantor in respect of the Subsidiary
Guarantee (its "Subsidiary Guarantee Obligations") shall be made subject to the
provisions of this Article Twelve, and each Person
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holding any Note, whether upon original issue or upon transfer, assignment or
exchange thereof, accepts and agrees that the payment of all such Subsidiary
Guarantor's Subsidiary Guarantee Obligations shall, to the extent and in the
manner herein set forth, be subordinated and junior in right of payment to the
prior payment in full in cash of all Obligations in respect of such Subsidiary
Guarantor's Senior Indebtedness, including principal, premium (if any) or
interest (including post-petition interest) thereon, that the subordination is
for the benefit of, and shall be enforceable directly by, the holders of such
Subsidiary Guarantor's Senior Indebtedness, and that each holder of any
Subsidiary Guarantor's Senior Indebtedness whether now outstanding or hereafter
created, incurred, assumed or guaranteed shall be deemed to have acquired such
Subsidiary Guarantor's Senior Indebtedness in reliance upon the covenants and
provisions contained in this Indenture and the Notes. Only Indebtedness of a
Subsidiary Guarantor that is Senior Indebtedness of such Subsidiary Guarantor
will rank senior to the Subsidiary Guarantee of such Subsidiary Guarantor in
accordance with the provisions of the Indenture. A Subsidiary Guarantee will in
all respects rank pari passu with all other Senior Subordinated Indebtedness of
the Subsidiary Guarantor to which it relates. Unsecured Indebtedness is not
deemed to be subordinated or junior to secured Indebtedness merely because it is
unsecured.
SECTION 12.02. No Payment on Notes in Certain Circumstances.
(a) No Subsidiary Guarantor may, and no other Person on behalf of such
Subsidiary Guarantor may, make any payment with respect to the Subsidiary
Guarantee or make any deposit pursuant to Article Eight above (collectively,
"pay the Subsidiary Guarantee") if (i) any amount of principal, interest or
other payments due under any Designated Senior Indebtedness of such Subsidiary
Guarantor or the Company has not been paid when due beyond any applicable grace
period whether at maturity, upon redemption, by declaration or otherwise or (ii)
any other default on Designated Senior Indebtedness of such Subsidiary Guarantor
or the Company occurs and the maturity of such Designated Senior Indebtedness is
accelerated in accordance with its terms unless, in either case, the default has
been cured or waived in writing and any such acceleration has been rescinded or
such Designated Senior Indebtedness has been paid in full, after which such
Subsidiary Guarantor shall resume making any and all required payments in
respect of the Subsidiary Guaranty, including any missed payments. However, a
Subsidiary Guarantor may pay the Subsidiary Guarantee without regard to the
foregoing if such Subsidiary Guarantor and the Trustee receive written notice
approving such payment from the Representative of the Designated Senior
Indebtedness guaranteed by such Subsidiary Guarantor with respect to which
either of the events set forth in clause (i) or (ii) of the immediately
preceding sentence has occurred and is continuing, after which such Subsidiary
Guarantor shall resume making any and all required payments in respect of the
Subsidiary Guaranty, including any missed payments. During the continuance of
any default (other than a default described in clause (i) or (ii) of the second
preceding sentence) with respect to any Designated Senior Indebtedness of a
Subsidiary Guarantor or the Company pursuant to which the maturity thereof may
be accelerated either immediately without further notice (except such notice as
may be required to effect such acceleration) or upon the expiration of any
applicable grace periods, such Subsidiary Guarantor may not pay the Subsidiary
Guarantee for a period (a "Payment Blockage Period") commencing upon the receipt
by the Trustee (with a copy to such Subsidiary Guarantor) of written notice (a
"Blockage Notice") of such default from the Representative of the holders of
such Designated Senior Indebtedness of such Subsidiary Guarantor or the Company
specifying an election to effect a Payment Blockage Period and ending 179 days
thereafter (or earlier if such
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Payment Blockage Period is terminated (A) by written notice to the Trustee and
such Subsidiary Guarantor from the Person or Persons who gave such Blockage
Notice (solely as evidenced by written notice to the Trustee by the
Representative of such Designated Senior Indebtedness which notice shall be
promptly delivered), (B) because the default giving rise to such Blockage Notice
is no longer continuing or (C) because such Designated Senior Indebtedness of
such Subsidiary Guarantor and the related Designated Senior Indebtedness of the
Company has been repaid in full). Notwithstanding the provisions described in
the immediately preceding sentence (but subject to the provisions contained in
the first sentence of this paragraph), unless the holders of such Designated
Senior Indebtedness of such Subsidiary Guarantor or the Company or the
Representative of such holders has accelerated the maturity of such Designated
Senior Indebtedness of such Subsidiary Guarantor or the Company, such Subsidiary
Guarantor may resume payments on the Subsidiary Guarantee after the end of such
Payment Blockage Period including any missed payments. The Subsidiary Guarantee
shall not be subject to more than one Payment Blockage Period in any consecutive
360-day period, irrespective of the number of defaults with respect to
Designated Senior Indebtedness guaranteed by such Subsidiary Guarantor during
such period. No default which exists or was continuing on the date of
commencement of any Blockage Period with respect to the Designated Senior
Indebtedness of a Subsidiary Guarantor or the Company under this Section 12.02
shall be, or shall be made, the basis for the commencement of a second Blockage
Period by the Representative of such Designated Senior Indebtedness of such
Subsidiary Guarantor whether or not within a period of 360 consecutive days
unless such default shall have been cured or waived in writing for a period of
not less than 90 consecutive days (it being acknowledged that any subsequent
action, or any breach of any financial covenants for a period commencing after
the date of commencement of such Blockage Period that, in either case, would
give rise to a default pursuant to any provisions under which a default
previously existed or was continuing shall constitute a new default for this
purpose).
(b) If, 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 Subsidiary Guarantor's Senior Indebtedness
(pro rata to such holders on the basis of the respective amount of such
Subsidiary Guarantor's Senior Indebtedness held by such holders) or their
respective Representatives, as their respective interests may appear. The
Trustee shall be entitled to rely on information regarding amounts then due and
owing on such Subsidiary Guarantor's Senior Indebtedness, if any, received from
the holders of such Subsidiary Guarantor's Senior Indebtedness (or their
Representatives) or, if such information is not received from such holders or
their Representatives, from such Subsidiary Guarantor and only amounts included
in the information provided to the Trustee shall be paid to the holders of such
Subsidiary Guarantor's Senior Indebtedness.
The provisions of this Section shall not apply to any payment with respect
to which Section 12.03 would be applicable.
Nothing contained in this Article Twelve shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section 6.02 or to pursue any rights or remedies
hereunder; provided that all Senior Indebtedness of the Company thereafter due
or declared to be due shall first be paid in full in cash or before the
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Holders are entitled to receive any payment of any kind or character with
respect to Obligations on the Notes.
SECTION 12.03. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of any Subsidiary Guarantor
of any kind or character, whether in cash, property or securities, to creditors
upon any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of such
Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or other similar proceeding relating to such Subsidiary Guarantor
or its property, whether voluntary or involuntary, all Obligations due or to
become due upon all of such Subsidiary Guarantor's Senior Indebtedness shall
first be paid in full in cash, or such payment duly provided for to the
satisfaction of the holders of such Subsidiary Guarantor's Senior Indebtedness,
before any payment or distribution of any kind or character is made on account
of any Obligations with respect to the Subsidiary Guarantee of such Subsidiary
Guarantor, or for the acquisition of such Subsidiary Guarantee for cash or
property or otherwise. Upon any such total or partial liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors or
marshaling of assets of such Subsidiary Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or other similar proceeding, any
payment or distribution of assets of such Subsidiary Guarantor of any kind or
character, whether in cash, property or securities, to which the Holders of the
Notes or the Trustee under this Indenture would be entitled, except for the
provisions hereof, shall be paid by such Subsidiary Guarantor or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders or by the Trustee under
this Indenture if received by them, directly to the holders of such Subsidiary
Guarantor's Senior Indebtedness (pro rata to such holders on the basis of the
respective amounts of such Subsidiary Guarantor's Senior Indebtedness held by
such holders) or their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Subsidiary Guarantor's Senior
Indebtedness may have been issued, as their respective interests may appear, for
application to the payment of such Subsidiary Guarantor's Senior Indebtedness
remaining unpaid until all such Subsidiary Guarantor's Senior Indebtedness has
been paid in full in cash after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Subsidiary
Guarantor's Senior Indebtedness.
(b) To the extent any payment of any Subsidiary Guarantor's Senior
Indebtedness (whether by or on behalf of such Subsidiary Guarantor, as proceeds
of security or enforcement of any right of setoff or otherwise) is declared to
be fraudulent or preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person under
any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, such
Subsidiary Guarantor's Senior Indebtedness or part thereof originally intended
to be satisfied shall be deemed to be reinstated and outstanding as if such
payment had not occurred.
(c) If, notwithstanding the foregoing, any payment or distribution of
assets of any Subsidiary Guarantor of any kind or character, whether in cash,
property or securities, shall be received by any Holder or the Trustee when such
payment or distribution is prohibited by this
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Section 12.03, such payment or distribution shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of such
Subsidiary Guarantor's Senior Indebtedness (pro rata to such holders on the
basis of the respective amount of such Subsidiary Guarantor's Senior
Indebtedness held by such holders) or their respective Representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Subsidiary Guarantor's Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of such
Subsidiary Guarantor's Senior Indebtedness remaining unpaid until all such
Subsidiary Guarantor's Senior Indebtedness has been paid in full in cash, after
giving effect to any concurrent payment, distribution or provision therefor to
or for the holders of such Subsidiary Guarantor's Senior Indebtedness.
(d) The consolidation of any Subsidiary Guarantor with, or the merger of
any Subsidiary Guarantor with or into, another corporation or the liquidation or
dissolution of any Subsidiary Guarantor following the conveyance or transfer of
all or substantially all of its assets, to another corporation upon the terms
and conditions provided in Article Five hereof and as long as permitted under
the terms of such Subsidiary Guarantor's Senior Indebtedness 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, assume such Subsidiary Guarantor's obligations
hereunder in accordance with Article Five hereof.
SECTION 12.04. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Twelve or elsewhere in this Indenture
shall prevent (i) any Subsidiary Guarantor, except under the conditions
described in Sections 12.02 and 12.03, from making payments at any time for the
purpose of making payments in respect of this Subsidiary Guarantee, or from
depositing with the Trustee any moneys for such payments, or (ii) in the absence
of actual knowledge by the Trustee that a given payment would be prohibited by
Section 12.02 or 12.03, the application by the Trustee of any moneys deposited
with it for the purpose of making such payments to the Holders entitled thereto
unless at least two Business Days prior to the date upon which such payment
would otherwise become due and payable a Trust Officer shall have actually
received the written notice provided for in the third sentence of Section
12.02(a) or in Section 12.07 (provided that, notwithstanding the foregoing, such
application shall otherwise be subject to the provisions of the first sentence
of Section 12.02(a), 12.02(b) and Section 12.03). Each Subsidiary Guarantor
shall give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of such Subsidiary Guarantor.
SECTION 12.05. Subrogation.
Subject to the payment in full in cash of all Subsidiary Guarantor Senior
Indebtedness, the Holders of the Obligations of any Subsidiary Guarantor shall
be subrogated to the rights of the holders of such Subsidiary Guarantor's Senior
Indebtedness to receive payments or distributions of cash, property or
securities of such Subsidiary Guarantor applicable to such Subsidiary
Guarantor's Senior Indebtedness until the Obligations of such Subsidiary
Guarantor under the Subsidiary Guarantee shall be paid in full; and, for the
purposes of such subrogation, no such payments or distributions to the holders
of such Subsidiary Guarantor's Senior
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Indebtedness by or on behalf of such Subsidiary Guarantor or by or on behalf of
the Holders by virtue of this Article Twelve which otherwise would have been
made to the Holders shall, as between such Subsidiary Guarantor and the Holders
of such Subsidiary Guarantor's Obligations, be deemed to be a payment by such
Subsidiary Guarantor to or on account of such Subsidiary Guarantor's Senior
Indebtedness, it being understood that the provisions of this Article Twelve are
and are intended solely for the purpose of defining the relative rights of the
Holders of such Subsidiary Guarantor's Obligations, on the one hand, and the
holders of such Subsidiary Guarantor's Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise have
been entitled but for the application of the provisions of this Article Twelve
shall have been applied, pursuant to the provisions of this Article Twelve, to
the payment of amounts payable under Senior Indebtedness of any Subsidiary
Guarantor, then the Holders shall be entitled to receive from the holders of
such Senior Indebtedness any payments or distributions received by such holders
of Senior Indebtedness in excess of the amount sufficient to pay all amounts
payable under or in respect of such Senior Indebtedness in full in cash.
SECTION 12.06. Obligations of Subsidiary Guarantor Unconditional.
Nothing contained in this Article Twelve or elsewhere in this Indenture or
in the Notes is intended to or shall impair, as among the Subsidiary Guarantors,
their respective creditors other than the holders of such Subsidiary Guarantor's
Senior Indebtedness, and the Holders, the obligation of such Subsidiary
Guarantor, which is absolute and unconditional, to pay to the Holders the
Subsidiary Guarantee Obligations 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 such Subsidiary Guarantor other
than the holders of such Subsidiary Guarantor's Senior Indebtedness, nor shall
anything herein or therein prevent the Holder of any Note or the Trustee on its
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, in respect of cash,
property or securities of such Subsidiary Guarantor received upon the exercise
of any such remedy.
SECTION 12.07. Notice to Trustee.
Each Subsidiary Guarantor shall give prompt written notice to the Trustee
of any fact known to such Subsidiary Guarantor which would prohibit the making
of any payment to or by the Trustee in respect of the Subsidiary Guarantee or
the Notes pursuant to the provisions of this Article Twelve. Regardless of
anything to the contrary contained in this Article Twelve or elsewhere in this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any default or event of default with respect to any Subsidiary Guarantor's
Senior Indebtedness 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 from such Subsidiary Guarantor or from a holder of such
Subsidiary Guarantor's Senior Indebtedness or a Representative therefor, and,
prior to the receipt of any such written notice, the Trustee shall be entitled
to assume (in the absence of actual knowledge to the contrary) that no such
facts exist.
If the Trustee determines in good faith that any evidence is required with
respect to the right of any Person as a holder of such Subsidiary Guarantor's
Senior Indebtedness to
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participate in any payment or distribution pursuant to this Article Twelve, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amounts of such Subsidiary Guarantor's
Senior Indebtedness 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 Twelve, 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 12.08. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of any Subsidiary Guarantor
referred to in this Article Twelve, the Trustee, subject to the provisions of
Article Seven hereof, and the Holders of the Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
any insolvency, bankruptcy, receivership, dissolution, winding-up, liquidation,
reorganization or similar case or proceeding is pending so long as such order
gives effect to the provisions of this Article Twelve, or upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or the Holders of the Notes, for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of each Subsidiary Guarantor's Senior Indebtedness and
other Indebtedness of any Subsidiary 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 Twelve.
SECTION 12.09. Trustee's Relation to Subsidiary Guarantor's Senior
Indebtedness.
The Trustee, any agent of the Trustee and any agent of any Subsidiary
Guarantor shall be entitled to all the rights set forth in this Article Twelve
with respect to the respective Subsidiary Guarantor's Senior Indebtedness 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 the respective Subsidiary Guarantor's Senior
Indebtedness and nothing in this Indenture shall deprive the Trustee or any such
agent of any of its rights as such holder.
With respect to the holders of the respective Subsidiary Guarantor's Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article Twelve,
and no implied covenants or obligations with respect to the holders of the
respective Subsidiary Guarantor's Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of any Subsidiary Guarantor's Senior Indebtedness.
Whenever a distribution is to be made or a notice given to holders or
owners of any Subsidiary Guarantor's Senior Indebtedness, the distribution may
be made and the notice may be given to their Representative, if any.
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SECTION 12.10. Subordination Rights Not Impaired by Acts or Omissions of
Subsidiary Guarantors or Holders of Subsidiary Guarantors' Senior Indebtedness.
No right of any present or future holders of any Subsidiary Guarantor's
Senior Indebtedness 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 such Subsidiary Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by such Subsidiary Guarantor
with the terms of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of any Subsidiary Guarantor's Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee, without
incurring responsibility to the Trustee or the Holders of the Notes and without
impairing or releasing the subordination provided in this Article Twelve or the
obligations hereunder of the Holders of the Notes to the holders of such
Subsidiary Guarantor's Senior Indebtedness, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, such Subsidiary Guarantor's Senior Indebtedness, or
otherwise amend or supplement in any manner such Subsidiary Guarantor's Senior
Indebtedness, or any instrument evidencing the same or any agreement under which
such Subsidiary Guarantor's Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Subsidiary Guarantor's Senior Indebtedness; (iii)
release any Person liable in any manner for the payment or collection of such
Subsidiary Guarantor's Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against such Subsidiary Guarantor and any other Person.
SECTION 12.11. Noteholders Authorize Trustee To Effectuate Subordination of
Notes.
Each Holder of Notes by its acceptance of them authorizes and expressly
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate, as between the holders of each Subsidiary Guarantor's
Senior Indebtedness and the Holders of Notes, the subordination provided in this
Article Twelve, and appoints the Trustee its attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of such Subsidiary 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 Subsidiary Guarantor, the filing of a claim for the
unpaid balance of its Notes and accrued interest in the form required in those
proceedings.
If the Trustee does not file a proper claim or proof of debt in the form
required in such proceeding prior to 30 days before the expiration of the time
to file such claim or claims, then the holders of each Subsidiary Guarantor's
Senior Indebtedness or their Representative are or is hereby authorized to have
the right to file and are or is hereby authorized to file an appropriate claim
for and on behalf of the Holders of said Notes. Nothing herein contained shall
be deemed to authorize the Trustee or the holders of any Subsidiary Guarantor's
Senior Indebtedness or their respective Representatives to authorize or consent
to or accept or adopt on
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behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee or the holders of any Subsidiary Guarantor's Senior
Indebtedness or their Representatives to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 12.12. This Article Twelve Not To Prevent Events of Default.
The failure to make a payment on account of Obligations of any Subsidiary
Guarantor by reason of any provision of this Article Twelve will not be
construed as preventing the occurrence of an Event of Default. Nothing contained
in this Article Twelve shall limit the right of the Trustee or the Holders to
take any action or accelerate the maturity of the Notes pursuant to Article Six
or to pursue any rights or remedies hereunder or under applicable law, subject
to the rights, if any, under this Article Twelve of the holders from time to
time, of Senior Indebtedness of any Subsidiary Guarantor.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
SECTION 13.02. Notices.
Any notices or other communications required or permitted hereunder shall
be in writing, and shall be sufficiently given if made by hand delivery, by
commercial courier service, by telex, by telecopier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
if to the Company or any Subsidiary Guarantor:
Terex Corporation
500 Post Road East
Westport, CT 06880
Facsimile No.: (203) 227-1647
Telephone: (203) 222-7170
Attn: General Counsel
with a copy to:
Bryan Cave LLP
1290 Avenue of the Americas
New York, NY 10104
Facsimile No.: (212) 541-1360
98
Telephone: (212) 541-2000
Attn: Stuart A. Gordon, Esq.
if to the Trustee:
HSBC Bank USA
452 Fifth Avenue
New York, NY 10018
Facsimile No.: (212) 525-1300
Telephone No.: (212) 525-1349
Attn: Issuer Services
if to the Senior Credit Facility Representative:
Credit Suisse First Boston
Eleven Madison Avenue - 20th Floor
New York, NY 10010
Facsimile No.: (212) 325-8304
Telephone No.: (212) 325-2000
Attn: Syndication/Agency Department
Each of the Company, the Subsidiary Guarantors, the Trustee, and the Senior
Credit Facility Representative by written notice to each other such Person may
designate additional or different addresses for notices to such Person. Any
notice or communication to the Company, the Subsidiary Guarantors, the Trustee
and the Senior Credit Facility Representative shall be deemed to have been given
or made as of the date so delivered if personally delivered; when receipt is
confirmed if delivered by commercial courier service; when receipt is
acknowledged, if faxed; and five (5) calendar days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Holder shall be mailed to him by
first class mail or other equivalent means at his address as it appears on the
registration books of the Registrar and shall be sufficiently given to him if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to the TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Subsidiary Guarantors, the Trustee, the Registrar and any other
Person shall have the protection of the TIA Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
99
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this Indenture, the Company shall furnish
to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent to be performed by the Company, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company, if
any, provided for in this Indenture relating to the proposed action have
been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture, other than the Officers' Certificate
required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition and the definitions relating thereto;
(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 reasonably 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 each such
Person, such condition or covenant has been complied with;
provided, that with respect to matters of fact, an Opinion of Counsel
may rely on an Officers' Certificate or a certificate of an appropriate
public official.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at a meeting of Holders. The Paying Agent
or Registrar may make reasonable rules for its functions.
SECTION 13.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of payment is a
Saturday, a Sunday or a day on which banking institutions in New York, New York
or at such place of payment are not required to be open. If a payment date is a
Legal Holiday at such place,
100
payment may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 13.08. Governing Law.
THIS INDENTURE AND THE NOTES (AND THE SUBSIDIARY GUARANTEES RELATING
THERETO) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE.
SECTION 13.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any of its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.10. No Recourse Against Others.
No past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company, any Subsidiary Guarantor or of the
Trustee shall have any liability for any obligations of the Company under the
Notes or this Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
SECTION 13.11. Successors.
All agreements of the Company and the Subsidiary Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 13.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together shall represent the same
agreement.
SECTION 13.13. Severability.
In case any one or more of the provisions in this Indenture or in the Notes
shall be held invalid, illegal or unenforceable, in any respect for any reason,
the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions shall not in any way be affected or
impaired thereby, it being intended that all of the provisions hereof shall be
enforceable to the full extent permitted by law.
101
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms of provisions hereof.
102
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
Issuer:
TEREX CORPORATION
By: /s/ Eric I Cohen
-------------------------------------------
Name: Eric I Cohen
Title: Senior Vice President
Subsidiary Guarantors:
KOEHRING CRANES, INC.
PAYHAULER CORP.
PPM CRANES, INC.
TEREX CRANES, INC.
TEREX-RO CORPORATION
TEREX-TELELECT, INC.
THE AMERICAN CRANE CORPORATION
O&K ORENSTEIN & KOPPEL, INC.
AMIDA INDUSTRIES, INC.
CEDARAPIDS, INC.
STANDARD HAVENS, INC.
STANDARD HAVENS PRODUCTS, INC.
BL-PEGSON (USA), INC.
BENFORD AMERICA, INC.
COLEMAN ENGINEERING, INC.
EARTHKING, INC.
FINLAY HYDRASCREEN USA, INC.
POWERSCREEN HOLDINGS USA, INC.
POWERSCREEN INTERNATIONAL LLC
POWERSCREEN NORTH AMERICA, INC.
POWERSCREEN USA, LLC
ROYER INDUSTRIES, INC.
TEREX BARTELL, INC.
TEREX MINING EQUIPMENT, INC.
CMI TEREX CORPORATION
CMI DAKOTA COMPANY
CMIOIL CORPORATION
FUCHS TEREX, INC.
GENIE ACCESS SERVICES, INC.
GENIE CHINA, INC.
GENIE FINANCIAL SERVICES, INC.
GENIE HOLDINGS, INC.
GENIE INDUSTRIES, INC.
GENIE INTERNATIONAL, INC.
GENIE MANUFACTURING, INC.
GFS COMMERCIAL LLC
GFS NATIONAL, INC.
GO CREDIT CORPORATION
LEASE SERVICING & FUNDING CORP.
PRODUCT SUPPORT, INC.
SCHAEFF INCORPORATED
SPINNAKER INSURANCE COMPANY
TELELECT SOUTHEAST DISTRIBUTION, INC.
TEREX ADVANCE MIXER, INC.
TEREX FINANCIAL SERVICES, INC.
TEREX UTILITIES, INC.
TEREX UTILITIES SOUTH, INC.
UTILITY EQUIPMENT, INC.
By: /s/ Eric I Cohen
---------------------------------------
Name: Eric I Cohen
Title: Senior Vice President
Trustee:
HSBC BANK USA, as Trustee
By: /s/ Marcia Markowski
--------------------------------------
Name: Marcia Markowski
Title: Vice President
RULE 144A/REGULATION S APPENDIX
FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT
TO RULE 144A AND TO CERTAIN PERSONS IN OFFSHORE
TRANSACTIONS IN RELIANCE ON REGULATION S
PROVISIONS RELATING TO INITIAL NOTES,
-------------------------------------
PRIVATE EXCHANGE NOTES
----------------------
AND EXCHANGE NOTES
------------------
1. Definitions.
1.1 Definitions.
For the purposes of this Appendix the following terms shall have the
meanings indicated below, provided that all capitalized terms used but not
defined shall have the meanings given such terms in the Indenture:
"Depositary" means The Depository Trust Company, its nominees and their
respective successors and assigns.
"Exchange Notes" means (i) the 7-3/8% Senior Subordinated Notes due 2014 to
be issued pursuant to this Indenture in connection with a Registered Exchange
Offer pursuant to a Registration Rights Agreement and (ii) Additional Notes, if
any, issued in the form of 7-3/8% Senior Subordinated Notes due 2014 pursuant to
a registration statement filed with the SEC under the Securities Act.
"Initial Purchasers" means (i) with respect to the Initial Notes issued on
November 25, 2003, Credit Suisse First Boston LLC, Citigroup Global Markets
Inc., ABN AMRO Incorporated, Banc of America Securities LLC, Credit Lyonnais
Securities (USA) Inc., Dresdner Kleinwort Wasserstein Securities and (ii) with
respect to each issuance of Additional Notes, the Persons purchasing such
Additional Notes under the related Purchase Agreement.
"Initial Notes" means (i) $300,000,000 principal amount of 7-3/8% Senior
Subordinated Notes due 2014, issued on November 25, 2003 and (ii) Additional
Notes, if any, issued in the form of 7-3/8% Senior Subordinated Notes due 2014
in a transaction exempt from the registration requirements of the Securities
Act.
"Private Exchange" means the offer by the Company, pursuant to a
Registration Rights Agreement, to the Initial Purchasers to issue and deliver to
each Initial Purchaser, in exchange for the Initial Notes held by the Initial
Purchaser as part of its initial distribution, a like aggregate principal amount
of Private Exchange Notes.
"Private Exchange Notes" means the 7-3/8% Senior Subordinated Private
Exchange Notes due 2014, if any, to be issued pursuant to this Indenture to the
Initial Purchasers in a Private Exchange.
"Purchase Agreement" means (i) with respect to the Initial Notes issued on
November 25, 2003, the Purchase Agreement dated November 10, 2003, among the
Company, the Subsidiary Guarantors and the initial purchasers named therein and
(ii) with respect to each issuance of Additional Notes, the purchase agreement
or underwriting agreement among the Company, the Subsidiary Guarantors and the
Persons purchasing such Additional Notes.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registered Exchange Offer" means the offer by the Company, pursuant to a
Registration Rights Agreement, to certain Holders of Initial Notes, to issue and
deliver to such Holders, in exchange for such Initial Notes, a like aggregate
principal amount of Exchange Notes registered under the Securities Act.
"Registration Rights Agreement" means (i) with respect to the Initial Notes
issued on November 25, 2003, the Registration Rights Agreement dated November
25, 2003 among the Company, the Subsidiary Guarantors and the initial purchasers
named therein, and (ii) with respect to each issuance of Additional Notes issued
in a transaction exempt from the registration requirements of the Securities
Act, the registration rights agreement, if any, among the Company, the
guarantors thereunder and the Persons purchasing such Additional Notes under the
related Purchase Agreement.
"Securities" means the Initial Notes, the Exchange Notes and the Private
Exchange Notes, treated as a single class.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depositary), or any successor person thereto and
shall initially be the Trustee.
"Shelf Registration Statement" means the shelf registration statement
issued by the Company, in connection with the offer and sale of Initial Notes,
Exchange Notes or Private Exchange Notes, pursuant to a Registration Rights
Agreement.
"Transfer Restricted Securities" means Securities that bear or are required
to bear the legend set forth in Section 2.3(b) hereto.
1.2 Other Definitions
Term Defined in Section:
---- ------------------
"Agent Members".............. 2.1(b)
"Global Security"............ 2.1(a)
"Regulation S"............... 2.1(a)
"Rule 144A".................. 2.1(a)
2. The Securities.
2.1 Form and Dating.
On November 25, 2003, $300,000,000 of the Initial Notes are being offered
and sold by the Company pursuant to the Purchase Agreement.
(a) Global Securities. Initial Notes sold in offshore transactions in
reliance on Regulation S under the Securities Act ("Regulation S") will
initially be represented by one or more temporary global notes in definitive,
fully registered form without interest coupons with the global securities legend
and restricted securities legend set forth in Exhibit 1 hereto(each a "Temporary
Regulation S Global Note") and will be deposited with the Trustee as custodian
for, and registered in the name of a nominee of, DTC for the accounts of
Euroclear and Clearstream Banking. The Temporary Regulation S Global Note will
be exchangeable for one or more permanent global notes (each a "Permanent
Regulation S Global Note"; and together with the Temporary Regulation S Global
Notes, the "Regulation S Global Note") on or after the 40th day following the
Closing Date upon certification that the beneficial interests in such global
Note are owned by non-U.S. persons. Prior to the 40th day after the Closing
Date, beneficial interests in the Temporary Regulation S Global Notes may only
be held through Euroclear or Clearstream Banking, and any resale or transfer of
such interests to U.S. persons shall not be permitted during such period unless
such resale or transfer is made pursuant to Rule 144A or Regulation S.
Notes sold in reliance on Rule 144A under the Securities Act ("Rule 144A")
will be represented by one or more permanent global notes in definitive, fully
registered form without interest coupons with the global securities legend and
restricted securities legend set forth in Exhibit 1 hereto (each a "144A Global
Note"; and together with the Regulation S Global Notes, the "Restricted Global
Notes") and will be deposited with the Trustee as custodian for, and registered
in the name of a nominee of, DTC.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global
Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with this
Section 2.1(b), authenticate and deliver initially one or more Global Securities
that (a) shall be registered in the name of the Depositary for such Global
Security or Global Securities or the nominee of such Depositary and (b) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions or held by the Trustee as custodian for the Depositary.
Members of, or participants in, the Depositary ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary or by the Trustee as the custodian of the Depositary or
under such Global Security, and the Depositary may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices of such
Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
(c) Certificated Securities. Except as provided in this Section 2.1 or
Section 2.3 or 2.4 of this Appendix, owners of beneficial interests in Global
Securities will not be entitled to receive physical delivery of certificated
Securities.
2.2 Authentication. The Trustee shall authenticate and deliver: (1) On
November 25, 2003, $300.0 million 7-3/8% Senior Subordinated Notes due 2014, (2)
any Additional Notes for original issue in an aggregate principal amount
specified in the written order of the Company pursuant to Section 2.02 of the
Indenture and (3) Exchange Notes or Private Exchange Notes for issue in a
Registered Exchange Offer or a Private Exchange, respectively, in exchange for a
like principal amount of Initial Notes, in each case upon a written order of the
Company in the form of an Officers' Certificate. Such order shall specify the
amount of the Securities to be authenticated and the date on which the original
issue of Notes is to be authenticated and whether the Securities are to be
Initial Notes, Exchange Notes or Private Exchange Notes and in the case of an
issuance of Additional Notes pursuant to Section 2.15 of the Indenture, shall
certify, among other things that such issuance will not be prohibited by Section
4.13 of the Indenture.
2.3 Transfer and Exchange.
(a) Transfer and Exchange of Global Securities.
(i) The transfer and exchange of Global Securities or beneficial
interests therein shall be effected through the Depositary, in accordance
with Section 2.6 of this Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Depositary
therefor. A transferor of a beneficial interest in a Global Security shall
deliver to the Registrar a written order, substantially in the form of
Exhibit C hereto, given in accordance with the Depositary's procedures
containing information regarding the participant account of the Depositary
to be credited with a beneficial interest in the Global Security. The
Registrar shall, in accordance with such instructions instruct the
Depositary to credit to the account of the Person specified in such
instructions a beneficial interest in the Global Security and to debit the
account of the Person making the transfer the beneficial interest in the
Global Security being transferred.
(ii) Notwithstanding any other provisions of this Appendix (other than
the provisions set forth in Section 2.4 of this Appendix), a Global
Security may not be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
(iii) In the event that a Global Security is exchanged for
Certificated Securities in definitive registered form pursuant to Section
2.4 of this Appendix or Section 2.6 or 2.10 of this Indenture, prior to the
consummation of a Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities, such Securities may
be exchanged by delivering to the Registrar a written order, substantially
in the form of Exhibit D hereto, only in accordance with such procedures as
are substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of the
Initial Notes intended to ensure that such transfers comply with Rule 144A
or Regulation S, as the case may be) and such other procedures as may from
time to time be adopted by the Company.
(b) Legend.
(i) Except as permitted by the following paragraphs (ii), (iii) and
(iv), each Security certificate evidencing Initial Notes and Private
Exchange Notes (and all Securities issued in exchange therefor or in
substitution thereof, other than Exchange Notes) shall bear a legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (i) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE ACT)(A "QIB"), (ii) IT HAS ACQUIRED THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE ACT OR (iii) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT (AN
"IAI")),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (i) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (ii) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (iii) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF THE ACT, (iv) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE ACT, (v) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN
BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE ACT, (vi) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY) OR (vii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND,
IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THESE SECURITIES IN VIOLATION OF THE FOREGOING."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act, the Registrar
shall permit the Holder thereof to exchange such Transfer Restricted
Security for a certificated Security that does not bear the legend set
forth above and rescind any restriction on the transfer of such Transfer
Restricted Security, if the Holder certifies in writing to the Registrar
that its request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Security).
(iii) After a transfer of any Initial Notes or Private Exchange Notes
during the period of the effectiveness of a Shelf Registration Statement
with respect to such Initial Notes or Private Exchange Notes, as the case
may be, all requirements pertaining to legends on such Initial Notes or
such Private Exchange Notes will cease to apply, but the requirements
requiring such Initial Notes or such Private Exchange Notes issued to
certain Holders be issued in global form will continue to apply, and
Initial Notes or Private Exchange Notes in global form without legends will
be available to the transferee of the Holder of such Initial Notes or
Private Exchange Notes upon exchange of such transferring Holder's Initial
Notes or Private Exchange Notes or directions to transfer such Holder's
interest in the Global Security, as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with respect
to the Initial Notes pursuant to which Holders of such Initial Notes are
offered Exchange Notes in exchange for their Initial Notes, all
requirements pertaining to such Initial Notes that Initial Notes issued to
certain Holders be issued in global form will continue to apply and Initial
Notes in global form with the restricted securities legend set forth in
Exhibit 1 hereto will be available to Holders of such Initial Notes that do
not exchange their Initial Notes, and Exchange Notes in global form without
the restricted securities legend set forth in Exhibit 1 hereto will be
available to Holders that exchange such Initial Notes in such Registered
Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect to the
Initial Notes pursuant to which Holders of such Initial Notes are offered
Private Exchange Notes in exchange for their Initial Notes, all
requirements pertaining to such Initial Notes that Initial Notes issued to
certain Holders be issued in global form will still apply, and Private
Exchange Notes in global form with the restricted securities legend set
forth in Exhibit 1 hereto will be available to Holders that exchange such
Initial Notes in such Private Exchange.
(c) Cancellation or Adjustment of Global Security. At such time as all
beneficial interests in a Global Security have either been exchanged for
certificated Securities, redeemed, repurchased or canceled, such Global Security
shall be returned to the Depositary for cancellation or retained and canceled by
the Trustee. At any time prior to such cancellation, if any beneficial interest
in a Global Security is exchanged for certificated Securities, redeemed,
repurchased or canceled, the principal amount of Securities represented by such
Global Security shall be reduced and an adjustment shall be made on the books
and records of the Trustee (if it is then the Securities Custodian for such
Global Security) with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
(d) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate certificated Securities
and Global Securities at the Registrar's or any co-registrar's request.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Company or the Trustee may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.06, 2.10, 3.06, 4.16, 4.17 and Section 9.06
of this Indenture).
(iii) The Registrar or any co-registrar shall not be required to
register the transfer of or exchange of (a) any certificated Security
selected for redemption in whole or in part pursuant to Article III of this
Indenture, except the unredeemed portion of any certificated Security being
redeemed in part, or (b) any Security for a period beginning 15 Business
Days before the mailing of a notice of an offer to repurchase or redeem
Securities or 15 Business Days before an Interest Payment Date.
(iv) Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and
none of the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
(e) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in the
Depositary or other Person with respect to the accuracy of the records of
the Depositary or its nominee or of any participant or member thereof, with
respect to any ownership interest in the Securities or with respect to the
delivery to any participant, member, beneficial owner or other Person
(other than the Depositary) of any notice (including any notice of
redemption) or the payment of any amount, under or with respect to such
Securities. All notices and communications to be given to the Holders and
all payments to be made to Holders under the Securities shall be given or
made only to or upon the order of the registered Holders (which shall be
the Depositary or its nominee in the case of a Global Security). The rights
of beneficial owners in any Global Security shall be exercised only through
the Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee may rely and shall be fully protected in relying
upon information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between
or among Depositary participants, members or beneficial owners in any
Global 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.
2.4 Certificated Securities.
(a) A Global Security deposited with the Depositary or with the Trustee as
custodian for the Depositary pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of certificated Securities in an aggregate
principal amount equal to the principal amount of such Global Security, in
exchange for such Global Security, only if such transfer complies with Section
2.3 and (i) the Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for such Global Security or if at any time such
Depositary ceases to be a "clearing agency" registered under the Exchange Act
and a successor depositary is not appointed by the Company within 90 days of
such notice, or (ii) an Event of Default has occurred and is continuing, (iii)
the Company, in its sole discretion, notifies the Trustee in writing that it
elects to cause the issuance of certificated Securities under this Indenture or
(iv) upon a subsequent transfer to an Institutional Accredited Investor in
accordance with the provisions of this Indenture and upon the execution by such
Institutional Accredited Investor of a certificate substantially in the Form of
the Certificate of Acquiring Institutional Accredited Investor attached hereto
as Exhibit E.
(b) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section shall be surrendered by the Depositary to the
Trustee, to be so transferred, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon such transfer of
each portion of such Global Security, an equal aggregate principal amount of
certificated Securities of authorized denominations. Any portion of a Global
Security transferred pursuant to this Section shall be executed, authenticated
and delivered only in denominations of $1,000 and any integral multiple thereof
and registered in such names as the Depositary shall direct. Any certificated
Initial Note delivered in exchange for an interest in the Global Security shall,
except as otherwise provided by Section 2.3(b), bear the restricted securities
legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the registered Holder of a
Global Security may grant proxies and otherwise authorize any Person, including
Agent Members and Persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this Indenture or the
Securities.
(d) In the event of the occurrence of either of the events specified in
Section 2.4(a) above, the Company will promptly make available to the Trustee a
reasonable supply of certificated Securities in definitive, fully registered
form without interest coupons.
EXHIBIT 1
TO RULE 144A/REGULATION S
APPENDIX
[Global Securities Legend]
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (i) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (ii) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(iii) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (iv) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
[Restricted Securities Legend]
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (i) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE ACT)(A "QIB"), (ii) IT HAS ACQUIRED THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE ACT OR (iii) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT (AN
"IAI")),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (i) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (ii) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (iii) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF THE ACT, (iv) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE ACT, (v) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN
BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE ACT, (vi) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY) OR (vii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND,
IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THESE SECURITIES IN VIOLATION OF THE FOREGOING."
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
<s> <c> <c> <c> <c>
Amount of decrease in Amount of increase in Principal Amount of this Signature of authorized
Principal Amount of this Principal Amount of this Global Security following officer of Trustee or
Date of Exchange Global Security Global Security such decrease or increase Securities Custodian
EXHIBIT A
---------
FORM OF INITIAL NOTE
--------------------
CUSIP No.:
TEREX CORPORATION
7-3/8% SENIOR SUBORDINATED NOTE DUE 2014
No. $
TEREX CORPORATION, a Delaware corporation (the "Company," which term
includes any successor entity), for value received promises to pay to _______ or
registered assigns, the principal sum of ______ Dollars, on January 15, 2014.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officer.
TEREX CORPORATION
By:
--------------------------------------
Name:
Title:
Dated: ____________
Certificate of Authentication
This is one of the 7-3/8% Senior Subordinated Notes due 2014 referred to in
the within-mentioned Indenture.
HSBC Bank USA,
as Trustee
By:
--------------------------------------
Authorized Officer
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(REVERSE OF SECURITY)
7-3/8% SENIOR SUBORDINATED NOTE DUE 2014
1. Interest. TEREX CORPORATION, a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at the rate per
annum shown above; provided, however, that if a Registration Default (as defined
in the Registration Rights Agreement) occurs, additional interest will accrue on
this Note at a rate of 0.50% per annum, from and including the date on which any
such Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured, calculated on the principal amount of
this Note as of the date on which such interest is payable. Such interest is
payable in addition to any other interest payable from time to time with respect
to this Note. The Trustee will not be deemed to have notice of a Registration
Default until it shall have received actual notice of such Registration Default.
Interest on the Notes will accrue from the most recent date on which interest
has been paid or, if no interest has been paid, from November 25, 2003. The
Company will pay interest semi-annually in arrears on each Interest Payment
Date, commencing January 15, 2004. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal at the rate borne by
the Notes plus 1% per annum and on overdue installments of interest (without
regard to any applicable grace periods) at such higher rate to the extent
lawful.
2. Method of Payment. The Company shall pay interest on the Notes (except
defaulted interest) to the Persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date
even if the Notes are cancelled on registration of transfer or registration of
exchange after such Record Date. Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by its check payable in such U.S. Legal Tender.
The Company may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, HSBC Bank USA, a New York banking
corporation (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.
4. Indenture and Subsidiary Guarantee. The Company issued the Notes under
an Indenture, dated as of November 25, 2003 (the "Indenture"), among the
Company, the Subsidiary Guarantors named therein and the Trustee. This Note is
one of a duly authorized issue of Initial Notes of the Company designated as its
7-3/8% Senior Subordinated Notes due 2014. The Company shall be entitled to
issue Additional Notes pursuant to Section 2.15 of the Indenture; provided, that
such issuance is not prohibited by Section 4.13 of the Indenture. The Initial
Notes issued on November 25, 2003, any Additional Notes, and any Private
Exchange Notes and Exchange Notes issued pursuant to the Indenture are treated
as a single class of securities under the Indenture. Capitalized terms herein
are used as defined in the Indenture
A-3
unless otherwise defined herein. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture. Notwithstanding anything to the contrary
herein, the Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and the TIA Act for a statement of them. The Notes are
general unsecured obligations of the Company. Payment on each Note is guaranteed
on a senior subordinated basis by the Subsidiary Guarantors pursuant to Article
Eleven of the Indenture. To the extent of any conflict between the terms of the
Notes and the Indenture, the applicable terms of the Indenture shall govern.
5. Subordination. The Notes are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior payment in
full in cash of all Senior Indebtedness of the Company, whether outstanding on
the date of the Indenture or thereafter created, incurred, assumed or
guaranteed. Each Holder by his acceptance hereof agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on his behalf, to
take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purposes.
6. Redemption.
(a) Optional Redemption. Except as set forth in the following paragraph,
the Notes will not be redeemable at the option of the Company prior to January
15, 2009. Thereafter, the Notes will be redeemable, at the Company's option, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' prior notice mailed by first-class mail to each Holder's
registered address, at the following redemption prices (expressed in percentages
of principal amount), plus accrued interest to the redemption date (subject to
the right of Holders of record on the relevant record date to receive interest
due on the relevant interest payment date), if redeemed during the 12-month
period commencing on January 15 of the years set forth below:
Redemption
Period Price
------ ----------
2009......................... 103.688 %
2010......................... 102.458 %
2011..................... ... 101.229 %
2012 and thereafter.......... 100.000 %
(b) Optional Redemption Upon Public Equity Offerings. In addition, at any
time and from time to time prior to January 15, 2007, the Company may redeem in
the aggregate up to 35.0% of the original principal amount of the Notes
(including the original principal amount of any Additional Notes) with the
proceeds of one or more Public Equity Offerings, at a redemption price
(expressed as a percentage of principal amount) of 107.375% plus accrued
interest to the redemption date (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date); provided, however, that at least 65% of the aggregate principal
amount of the Notes originally outstanding (including the original principal
amount of any Additional Notes) must remain outstanding after each such
redemption.
A-4
In order to effect the foregoing redemption with the proceeds of any Public
Equity Offering, the Company shall make such redemption not more than 120 days
after the consummation of any such Public Equity Offering.
7. Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at such Holder's registered address. Notes in denominations
of $1,000 may be redeemed only in whole. Notes in denominations larger than
$1,000 may be redeemed in part but only in multiples of $1,000.
Except as set forth in the Indenture, if monies for the redemption of the
Notes called for redemption shall have been deposited with the Paying Agent for
redemption on such Redemption Date, then, unless the Company defaults in the
payment of such Redemption Price plus accrued and unpaid interest, if any, the
Notes called for redemption will cease to bear interest from and after such
Redemption Date and the only right of the Holders of such Notes will be to
receive payment of the Redemption Price plus accrued and unpaid interest, if
any.
8. Offers to Purchase. Sections 4.16 and 4.17 of the Indenture provide
that, upon the occurrence of a Change of Control (as defined in the Indenture)
and in the event of certain Asset Dispositions (as defined in the Indenture),
and subject to further limitations contained therein, the Company will make an
offer to purchase certain amounts of the Notes in accordance with the procedures
set forth in the Indenture.
9. Registration Rights. Pursuant to the Registration Rights Agreement (as
defined in the Indenture), the Company will be obligated to consummate an
exchange offer pursuant to which the Holder of this Note shall have the right to
exchange this Note for the Company's 7-3/8% Senior Subordinated Notes due 2014
in the form of Exchange Notes, which shall have been registered under the
Securities Act, or the Company's 7-3/8% Senior Subordinated Private Exchange
Notes due 2014 (the "Private Exchange Notes"), in each case in like principal
amount and having terms identical in all material respects to the Initial Notes.
The Holders of the Initial Notes shall be entitled to receive certain additional
interest payments if such exchange offer is not consummated and upon certain
other conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement. The Company shall notify the Trustee of the
amount of any such payments.
10. Denominations; Transfer; Exchange. The Notes are in registered form,
without coupons, in denominations of $1,000 and integral multiples of $1,000. A
Holder shall register the transfer of or exchange of Notes in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection therewith
as permitted by the Indenture. The Registrar need not register the transfer of
or exchange of any Notes or portions thereof selected for redemption (except, in
the case of Notes to be redeemed in part, the portion of such Notes not to be
redeemed) or any Note for a period beginning 15 Business Days before the mailing
of a notice of an offer to repurchase or a notice of redemption or 15 Business
Days before any Interest Payment Date.
A-5
11. Persons Deemed Owners. The registered Holder of a Note shall be treated
as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company (subject to any applicable abandoned property law).
After that, all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
13. Discharge Prior to Redemption or Maturity. If the Company at any time
deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the Indenture
and the Notes (including certain covenants, but excluding its obligation to pay
the principal of and interest on the Notes).
14. Amendment; Supplement; Waiver. Subject to certain exceptions set forth
in the Indenture, the Indenture or the Notes may be amended or supplemented with
the written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, omission, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated Notes, or comply
with Article Five of the Indenture or make any other change that does not
adversely affect in any material respect the rights of any Holder of a Note.
15. Restrictive Covenants. The Indenture imposes certain limitations on the
ability of the Company and its Restricted Subsidiaries to, among other things,
incur additional Indebtedness, make payments in respect of its Capital Stock or
certain Indebtedness, enter into transactions with Affiliates, create dividend
or other payment restrictions affecting Subsidiaries, merge or consolidate with
any other Person, sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its assets or adopt a plan of liquidation. Such
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
16. Successors. When a successor assumes, in accordance with the Indenture,
all the obligations of its predecessor under the Notes and the Indenture, the
predecessor will be released from those obligations.
17. Defaults and Remedies. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in aggregate principal amount of
Notes then outstanding may declare all the Notes to be due and payable in the
manner, at the time and with the effect provided in the Indenture. Certain
events of bankruptcy and insolvency are Events of Default which will result in
the Notes being due and payable immediately upon the occurrence of such Events
of Default. Holders of Notes may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture or the Notes unless it has received indemnity reasonably satisfactory
to it. The Indenture permits, subject to
A-6
certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Notes then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in
their interest.
18. Trustee Dealings with Company. The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
19. Authentication. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
20. Governing Law. The Laws of the State of New York shall govern this Note
and the Indenture (and the Subsidiary Guarantees relating thereto), without
regard to principles of conflict of laws.
21. Abbreviations and Defined Terms. Customary abbreviations may be used in
the name of a Holder of a Note 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).
22. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes as a convenience to the Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
23. Indenture. Each Holder, by accepting a Note, agrees to be bound by all
of the terms and provisions of the Indenture, as the same may be amended from
time to time.
24. Holders' Compliance with Registration Rights Agreement. Each Holder of
a Note, by acceptance hereof, acknowledges and agrees to the provisions of the
Registration Rights Agreement, including, without limitation, the obligations of
the Holders with respect to a registration and the indemnification of the
Company to the extent provided therein.
25. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder, of the Company, as such, shall have any liability
for any obligations of the Company under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Securities and Exchange
Commission that such a waiver is against public policy.
26. Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Definitive
Notes shall have all the rights set forth in the Registration Rights Agreement.
A-7
The Company will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture. Requests may be made to: TEREX
CORPORATION, 500 Post Road East, Westport, CT 06880, Attn: Secretary.
A-8
[FORM OF NOTATION ON NOTE RELATING TO SUBSIDIARY GUARANTEE]
SUBSIDIARY GUARANTEE
Koehring Cranes, Inc., Payhauler Corp., PPM Cranes, Inc., Terex Cranes, Inc.,
Terex-RO Corporation, Terex-Telelect, Inc., The American Crane Corporation, O&K
Orenstein & Koppel, Inc., Amida Industries, Inc. Cedarapids, Inc., Standard
Havens, Inc., Standard Havens Products, Inc., BL-Pegson (USA), Inc., Benford
America, Inc., Coleman Engineering, Inc., EarthKing, Inc., Finlay Hydrascreen
USA, Inc., Powerscreen Holdings USA, Inc., Powerscreen International LLC,
Powerscreen North America, Inc., Powerscreen USA, LLC, Royer Industries, Inc.,
Terex Bartell, Inc., Terex Mining Equipment, Inc., CMI Terex Corporation, CMI
Dakota Company, CMIOIL Corporation, Fuchs Terex, Inc., Genie Access Services,
Inc., Genie China, Inc., Genie Financial Services, Inc., Genie Holdings, Inc.,
Genie Industries, Inc., Genie International, Inc., Genie Manufacturing, Inc.,
GFS Commercial LLC, GFS National, Inc., Go Credit Corporation, Lease Servicing &
Funding Corp., Product Support, Inc., Schaeff Incorporated, Spinnaker Insurance
Company, Telelect Southeast Distribution, Inc., Terex Advance Mixer, Inc., Terex
Financial Services, Inc., Terex Utilities, Inc., Terex Utilities South, Inc. and
Utility Equipment, Inc., (collectively, the "Subsidiary Guarantors"), have each
jointly and severally unconditionally guaranteed on a senior subordinated basis
(such guarantee by each Subsidiary Guarantor being referred to herein as the
"Subsidiary Guarantee") (i) the due and punctual payment of the principal of and
interest on the Notes, subject to any applicable grace period, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal and interest, if any, on the Notes, to the extent
lawful, 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 and (ii) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, subject to any
applicable grace period, by acceleration or otherwise.
The obligations of each Subsidiary Guarantor to the Holders of Notes and to
the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly
set forth and are senior subordinated obligations of any Subsidiary Guarantor,
to the extent and in the manner provided, in Articles Eleven and Twelve of the
Indenture, and reference is hereby made to such Indenture for the precise terms
of the Subsidiary Guarantee therein made.
No stockholder, officer, director, employee or incorporator, as such, past,
present or future, of each Subsidiary Guarantor shall have any liability under
the Subsidiary Guarantee by reason of his or its status as such stockholder,
officer, director, employee or incorporator.
The Subsidiary Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Notes upon which the Subsidiary
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
A-9
KOEHRING CRANES, INC.
PAYHAULER CORP.
PPM CRANES, INC.
TEREX CRANES, INC.
TEREX-RO CORPORATION
TEREX-TELELECT, INC.
THE AMERICAN CRANE CORPORATION
O&K ORENSTEIN & KOPPEL, INC.
AMIDA INDUSTRIES, INC.
CEDARAPIDS, INC.
STANDARD HAVENS, INC.
STANDARD HAVENS PRODUCTS, INC.
BL-PEGSON (USA), INC.
BENFORD AMERICA, INC.
COLEMAN ENGINEERING, INC.
EARTHKING, INC.
FINLAY HYDRASCREEN USA, INC.
POWERSCREEN HOLDINGS USA, INC.
POWERSCREEN INTERNATIONAL LLC
POWERSCREEN NORTH AMERICA, INC.
POWERSCREEN USA, LLC
ROYER INDUSTRIES, INC.
TEREX BARTELL, INC.
TEREX MINING EQUIPMENT, INC.
CMI TEREX CORPORATION
CMI DAKOTA COMPANY
CMIOIL CORPORATION
FUCHS TEREX, INC.
GENIE ACCESS SERVICES, INC.
GENIE CHINA, INC.
GENIE FINANCIAL SERVICES, INC.
GENIE HOLDINGS, INC.
GENIE INDUSTRIES, INC.
GENIE INTERNATIONAL, INC.
GENIE MANUFACTURING, INC.
GFS COMMERCIAL LLC
GFS NATIONAL, INC.
GO CREDIT CORPORATION
LEASE SERVICING & FUNDING CORP.
PRODUCT SUPPORT, INC.
SCHAEFF INCORPORATED
SPINNAKER INSURANCE COMPANY
TELELECT SOUTHEAST DISTRIBUTION, INC.
TEREX ADVANCE MIXER, INC.
TEREX FINANCIAL SERVICES, INC.
TEREX UTILITIES, INC.
A-10
TEREX UTILITIES SOUTH, INC.
UTILITY EQUIPMENT, INC.
By:
--------------------------------------
Name:
Title:
A-11
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Note 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 Note on the books of the
Company. The agent may substitute another to act for him.
Date: Signed:
-------------------- ---------------------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
---------------------
(Signature must be guaranteed by an "eligible guarantor institution," that
is, a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents 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).
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) [two years from date of original issuance], the undersigned
confirms that it has not utilized any general solicitation or general
advertising in connection with the transfer and that this Note is being
transferred:
A-12
[Check One]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the Securities Act; or
(3) __ outside the United States to a "foreign person" in compliance with Rule
904 of Regulation S under the Securities Act; or
(4) __ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act; or
(5) __ pursuant to an effective registration statement under the Securities Act;
or
(6) __ pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered Holder thereof; provided that if box (3), (4) or (6) is checked, the
Company or the Trustee may require, prior to registering any such transfer of
the Notes, in its sole discretion, such legal opinions, certifications and other
information as the Trustee or the Company has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
A-13
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in the Appendix to the Indenture shall have been satisfied.
Dated: Signed:
-------------------- --------------------------------------------
(Sign exactly as name
appears on the other side of
this Security)
Signature Guarantee:
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TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated:
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NOTICE: To be executed by an
executive officer
A-14
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.16 or Section 4.17 of the Indenture, check the appropriate box:
Section 4.16 [ ]
Section 4.17 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.16 or Section 4.17 of the Indenture, state the
amount you elect to have purchased:
$
-----------------
Dated:
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NOTICE: The signature on this
assignment must correspond with the
name as it appears upon the face of
the within Note in every particular
without alteration or enlargement or
any change whatsoever and be
guaranteed by the endorser's bank or
broker.
Signature Guarantee:
-------------------
(Signature must be guaranteed by an "eligible guarantor institution," that
is, a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents 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).
A-15
EXHIBIT B
FORM OF EXCHANGE NOTE AND PRIVATE EXCHANGE NOTE
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CUSIP No.:
TEREX CORPORATION
7-3/8% SENIOR SUBORDINATED [PRIVATE EXCHANGE] NOTE DUE 2014
No. $
TEREX CORPORATION, a Delaware corporation (the "Company," which term
includes any successor entity), for value received promises to pay to _________
or registered assigns, the principal sum of ______ Dollars, on January 15, 2014.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officer.
TEREX CORPORATION
By:
--------------------------------------------
Name:
Title:
Dated:
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Certificate of Authentication
This is one of the 7-3/8% Senior Subordinated [Private Exchange] Notes due
2014 referred to in the within-mentioned Indenture.
HSBC BANK USA,
as Trustee
By:
------------------------------------------
Authorized Officer
[If the Note is to be issued in global form add the Global Securities Legend
from Exhibit 1 to the Appendix and the attachment from such Exhibit 1 captioned
"[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR DECREASES IN
GLOBAL SECURITY".]
[If the Note is a Private Exchange Note issued in a Private Exchange to an
Initial Purchaser holding an unsold portion of its initial allotment, add the
restricted securities legend from Exhibit 1 to Appendix A and replace the
Assignment Form with that included in Exhibit A.]
B-2
(REVERSE OF SECURITY)
7-3/8% SENIOR SUBORDINATED [PRIVATE EXCHANGE] NOTE DUE 2014
1. Interest. TEREX CORPORATION, a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at the rate per
annum shown above; [provided, however, that if a Registration Default (as
defined in the Registration Rights Agreement) occurs, additional cash interest
will accrue on this Note at a rate of 0.50% per annum from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured, calculated on the
principal amount of this Note as of the date on which such interest is payable.
Such interest is payable in addition to any other interest payable from time to
time with respect to this Note. The Trustee will not be deemed to have notice of
a Registration Default until it shall have received actual notice of such
Registration Default]. Interest on the Notes will accrue from [the most recent
date on which interest has been paid on the Initial Note in exchange for which
this [Exchange Note] [Private Exchange Note] was issued] [date of issuance of
Additional Notes]. The Company will pay interest semi-annually in arrears on
each Interest Payment Date, commencing [January 15, 2004] [first interest
payment date after issuance of Additional Notes]. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal at the rate borne by
the Notes plus 1% per annum and on overdue installments of interest (without
regard to any applicable grace periods) at such higher rate to the extent
lawful.
2. Method of Payment. The Company shall pay interest on the Notes (except
defaulted interest) to the Persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date
even if the Notes are cancelled on registration of transfer or registration of
exchange after such Record Date. Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by its check payable in such U.S. Legal Tender.
The Company may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, HSBC Bank USA, a New York banking
corporation (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.
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1 Insert if at the time of issuance of the Exchange NOte or Private Exchange
Note (as the case may be) neither the Registered Exchange Offer has been
consummated nor a Shelf Registration Statement has been declared effective
in accordance with a Registration Rights Agreement.
B-3
4. Indenture and Guarantee. The Company issued the Notes under an
Indenture, dated as of November 25, 2003 (the "Indenture"), among the Company,
the Subsidiary Guarantors named therein and the Trustee. [This Note is one of a
duly authorized issue of Exchange Notes of the Company designated as its 7-3/8%
Senior Subordinated Notes due 2014.] [This Note is one of a duly authorized
issue of Private Exchange Notes of the Company designated as its 7-3/8% Senior
Subordinated Private Exchange Notes due 2014.] The Company shall be entitled to
issue Additional Notes pursuant to Section 2.15 of the Indenture; provided, that
such issuance is not prohibited by Section 4.13 of the Indenture. The Initial
Notes issued on November 25, 2003, any Additional Notes, and any Private
Exchange Notes and Exchange Notes issued pursuant to the Indenture are treated
as a single class of securities under the Indenture. Capitalized terms herein
are used as defined in the Indenture unless otherwise defined herein. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the TIA of 1939 (15 U.S. Code Sections 77aaa-77bbbb)
(the "TIA"), as in effect on the date of the Indenture. Notwithstanding anything
to the contrary herein, the Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and the TIA for a statement of them. The
Notes are general unsecured obligations of the Company. Payment on each Note is
guaranteed on a senior subordinated basis by the Subsidiary Guarantors pursuant
to Article Eleven of the Indenture. To the extent of any conflict between the
terms of the Notes and the Indenture, the applicable terms of the Indenture
shall govern.
5. Subordination. The Notes are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior payment in
full in cash of all Senior Indebtedness of the Company, whether outstanding on
the date of the Indenture or thereafter created, incurred, assumed or
guaranteed. Each Holder by his acceptance hereof agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on his behalf, to
take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purposes.
6. Redemption.
(a) Optional Redemption. Except as set forth in the following paragraph,
the Notes will not be redeemable at the option of the Company prior to January
15, 2007. Thereafter, the Notes will be redeemable, at the Company's option, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' prior notice mailed by first-class mail to each Holder's
registered address, at the following redemption prices (expressed in percentages
of principal amount), plus accrued interest to the redemption date (subject to
the right of Holders of record on the relevant record date to receive interest
due on the relevant interest payment date), if redeemed during the 12-month
period commencing on January 15 of the years set forth below:
Redemption
Period Price
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2009........................... 103.688 %
2010........................... 102.458 %
2011........................... 101.229 %
2012 and thereafter............ 100.000 %
B-4
(b) Optional Redemption Upon Public Equity Offerings. In addition, at any
time and from time to time prior to January 15, 2007, the Company may redeem in
the aggregate up to 35.0% of the original principal amount of the Notes
(including the original principal amount of any Additional Notes) with the
proceeds of one or more Public Equity Offerings, at a redemption price
(expressed as a percentage of principal amount) of 107.375% plus accrued
interest to the redemption date (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date); provided, however, that at least 65% of the aggregate principal
amount of the Notes originally outstanding (including the original principal
amount of any Additional Notes) must remain outstanding after each such
redemption.
In order to effect the foregoing redemption with the proceeds of any Public
Equity Offering, the Company shall make such redemption not more than 120 days
after the consummation of any such Public Equity Offering.
7. Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at such Holder's registered address. Notes in denominations
of $1,000 may be redeemed only in whole. Notes in denominations larger than
$1,000 may be redeemed in part but only in multiples of $1,000.
Except as set forth in the Indenture, if monies for the redemption of the
Notes called for redemption shall have been deposited with the Paying Agent for
redemption on such Redemption Date, then, unless the Company defaults in the
payment of such Redemption Price plus accrued and unpaid interest, if any, the
Notes called for redemption will cease to bear interest from and after such
Redemption Date and the only right of the Holders of such Notes will be to
receive payment of the Redemption Price plus accrued and unpaid interest, if
any.
8. Offers to Purchase. Sections 4.16 and 4.17 of the Indenture provide
that, upon the occurrence of a Change of Control (as defined in the Indenture)
and in the event of certain Asset Dispositions (as defined in the Indenture),
and subject to further limitations contained therein, the Company will make an
offer to purchase certain amounts of the Notes in accordance with the procedures
set forth in the Indenture.
9. Denominations; Transfer; Exchange. The Notes are in registered form,
without coupons, in denominations of $1,000 and integral multiples of $1,000. A
Holder shall register the transfer of or exchange of Notes in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection therewith
as permitted by the Indenture. The Registrar need not register the transfer of
or exchange of any Notes or portions thereof selected for redemption (except, in
the case of Notes to be redeemed in part, the portion of such Notes not to be
redeemed) or any Note for a period beginning 15 Business Days before the mailing
of a notice of an offer to repurchase or a notice of redemption or 15 Business
Days before any Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note shall be treated
as the owner of it for all purposes.
B-5
11. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company (subject to any applicable abandoned property law).
After that, all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
12. Discharge Prior to Redemption or Maturity. If the Company at any time
deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the Indenture
and the Notes (including certain covenants, but excluding its obligation to pay
the principal of and interest on the Notes).
13. Amendment; Supplement; Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the written consent
of the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding, and any existing Default or Event of Default or noncompliance
with any provision may be waived with the written consent of the Holders of a
majority in aggregate principal amount of the Notes then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture or the Notes to, among other things, cure any ambiguity, omission,
defect or inconsistency, provide for uncertificated Notes in addition to or in
place of certificated Notes, or comply with Article Five of the Indenture or
make any other change that does not adversely affect in any material respect the
rights of any Holder of a Note.
14. Restrictive Covenants. The Indenture imposes certain limitations on the
ability of the Company and its Restricted Subsidiaries to, among other things,
incur additional Indebtedness, make payments in respect of its Capital Stock or
certain Indebtedness, enter into transactions with Affiliates, create dividend
or other payment restrictions affecting Subsidiaries, merge or consolidate with
any other Person, sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its assets or adopt a plan of liquidation. Such
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
15. Successors. When a successor assumes, in accordance with the Indenture,
all the obligations of its predecessor under the Notes and the Indenture, the
predecessor will be released from those obligations.
16. Defaults and Remedies. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in aggregate principal amount of
Notes then outstanding may declare all the Notes to be due and payable in the
manner, at the time and with the effect provided in the Indenture. Certain
events of bankruptcy and insolvency are Events of Default which will result in
the Notes being due and payable immediately upon the occurrence of such Events
of Default. Holders of Notes may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture or the Notes unless it has received indemnity reasonably satisfactory
to it. The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the Notes then
outstanding to direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Notes notice of any continuing Default or
Event of Default
B-6
(except a Default in payment of principal or interest) if it
determines that withholding notice is in their interest.
17. Trustee Dealings with Company. The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
18. No Recourse Against Others. No past, present or future stockholder,
director, officer, employee or incorporator, as such, of the Company or any
Subsidiary Guarantor shall have any liability for any obligation of the Company
under the Notes 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 Note by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
19. Authentication. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
20. Governing Law. The Laws of the State of New York shall govern this Note
and the Indenture (and the Subsidiary Guarantees relating thereto), without
regard to principles of conflict of laws.
21. Abbreviations and Defined Terms. Customary abbreviations may be used in
the name of a Holder of a Note 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).
22. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes as a convenience to the Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
23. Indenture. Each Holder, by accepting a Note, agrees to be bound by all
of the terms and provisions of the Indenture, as the same may be amended from
time to time.
[24. Registration Rights. Pursuant to the Registration Rights Agreement (as
defined in the Indenture), the Company will have certain obligations to the
Holders of the Exchange Notes and the Private Exchange Notes. The Holders of the
Exchange Notes and the Private Exchange Notes shall be entitled to receive
certain additional interest payments upon certain conditions, all pursuant to
and in accordance with the terms of the Registration Rights Agreement. The
Company shall notify the Trustee of the amount of any such payments.](2)
The Company will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests
- --------------------------
2 To be included if applicable.
B-7
may be made to: TEREX CORPORATION, 500 Post Road East, Westport, CT 06880, Attn:
Secretary.
B-8
[FORM OF NOTATION ON NOTE RELATING TO SUBSIDIARY GUARANTEE]
SUBSIDIARY GUARANTEE
Koehring Cranes, Inc., Payhauler Corp., PPM Cranes, Inc., Terex Cranes, Inc.,
Terex-RO Corporation, Terex-Telelect, Inc., The American Crane Corporation, O&K
Orenstein & Koppel, Inc., Amida Industries, Inc. Cedarapids, Inc., Standard
Havens, Inc., Standard Havens Products, Inc., BL-Pegson (USA), Inc., Benford
America, Inc., Coleman Engineering, Inc., EarthKing, Inc., Finlay Hydrascreen
USA, Inc., Powerscreen Holdings USA, Inc., Powerscreen International LLC,
Powerscreen North America, Inc., Powerscreen USA, LLC, Royer Industries, Inc.,
Terex Bartell, Inc., Terex Mining Equipment, Inc., CMI Terex Corporation, CMI
Dakota Company, CMIOIL Corporation, Fuchs Terex, Inc., Genie Access Services,
Inc., Genie China, Inc., Genie Financial Services, Inc., Genie Holdings, Inc.,
Genie Industries, Inc., Genie International, Inc., Genie Manufacturing, Inc.,
GFS Commercial LLC, GFS National, Inc., Go Credit Corporation, Lease Servicing &
Funding Corp., Product Support, Inc., Schaeff Incorporated, Spinnaker Insurance
Company, Telelect Southeast Distribution, Inc., Terex Advance Mixer, Inc., Terex
Financial Services, Inc., Terex Utilities, Inc., Terex Utilities South, Inc. and
Utility Equipment, Inc., (collectively, the "Subsidiary Guarantors"), have each
jointly and severally unconditionally guaranteed on a senior subordinated basis
(such guarantee by each Subsidiary Guarantor being referred to herein as the
"Subsidiary Guarantee") (i) the due and punctual payment of the principal of and
interest on the Notes, subject to any applicable grace period, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal and interest, if any, on the Notes, to the extent
lawful, 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 and (ii) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, subject to any
applicable grace period, by acceleration or otherwise.
The obligations of each Subsidiary Guarantor to the Holders of Notes and to the
Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set
forth and are senior subordinated obligations of each Subsidiary Guarantor, to
the extent and in the manner provided, in Articles Eleven and Twelve of the
Indenture, and reference is hereby made to such Indenture for the precise terms
of the Subsidiary Guarantee therein made.
No stockholder, officer, director, employee or incorporator, as such, past,
present or future, of each Subsidiary Guarantor shall have any liability under
the Subsidiary Guarantee by reason of his or its status as such stockholder,
officer, director, employee or incorporator.
The Subsidiary Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Notes upon which the Subsidiary
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
B-9
KOEHRING CRANES, INC.
PAYHAULER CORP.
PPM CRANES, INC.
TEREX CRANES, INC.
TEREX-RO CORPORATION
TEREX-TELELECT, INC.
THE AMERICAN CRANE CORPORATION
O&K ORENSTEIN & KOPPEL, INC.
AMIDA INDUSTRIES, INC.
CEDARAPIDS, INC.
STANDARD HAVENS, INC.
STANDARD HAVENS PRODUCTS, INC.
BL-PEGSON (USA), INC.
BENFORD AMERICA, INC.
COLEMAN ENGINEERING, INC.
EARTHKING, INC.
FINLAY HYDRASCREEN USA, INC.
POWERSCREEN HOLDINGS USA, INC.
POWERSCREEN INTERNATIONAL LLC
POWERSCREEN NORTH AMERICA, INC.
POWERSCREEN USA, LLC
ROYER INDUSTRIES, INC.
TEREX BARTELL, INC.
TEREX MINING EQUIPMENT, INC.
CMI TEREX CORPORATION
CMI DAKOTA COMPANY
CMIOIL CORPORATION
FUCHS TEREX, INC.
GENIE ACCESS SERVICES, INC.
GENIE CHINA, INC.
GENIE FINANCIAL SERVICES, INC.
GENIE HOLDINGS, INC.
GENIE INDUSTRIES, INC.
GENIE INTERNATIONAL, INC.
GENIE MANUFACTURING, INC.
GFS COMMERCIAL LLC
GFS NATIONAL, INC.
GO CREDIT CORPORATION
LEASE SERVICING & FUNDING CORP.
PRODUCT SUPPORT, INC.
SCHAEFF INCORPORATED
SPINNAKER INSURANCE COMPANY
TELELECT SOUTHEAST DISTRIBUTION, INC.
TEREX ADVANCE MIXER, INC.
TEREX FINANCIAL SERVICES, INC.
TEREX UTILITIES, INC.
B-10
TEREX UTILITIES SOUTH, INC.
UTILITY EQUIPMENT, INC.
By:
--------------------------------------
Name:
Title:
B-11
ASSIGNMENT FORM(3)
If you the Holder want to assign this Note, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Note 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 Note
on the books of the Company. The agent may substitute another to act for him.
Date: Signed:
--------------------- --------------------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
------------------------
(Signature must be guaranteed by an "eligible guarantor institution," that is, a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents 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).
- -----------------------
3 If the Note is a Private Exchange NOte, replace the Assignment Form with
that included in Exhibit A to the Indenture.
B-12
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.16 or Section 4.17 of the Indenture, check the appropriate box:
Section 4.16 [ ]
Section 4.17 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.16 or Section 4.17 of the Indenture, state the
amount you elect to have purchased:
$
---------------------
Dated:
------------------- ------------------------------------
NOTICE: The signature on this
assignment must correspond with the
name as it appears upon the face of
the within Note in every particular
without alteration or enlargement or
any change whatsoever and be
guaranteed by the endorser's bank or
broker.
Signature Guarantee:
--------------------
(Signature must be guaranteed by an "eligible guarantor institution," that
is, a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents 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).
B-13
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
XXXX
XXXX
Re: 7-3/8% Senior Subordinated Notes due 2014
Reference is hereby made to the Indenture, dated as of November 25, 2003
(the "Indenture"), by and among Terex Corporation, as issuer (the "Company"),
the guarantors named therein, and HSBC Bank USA, 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
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to __________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. __Check if Transferee shall take delivery of a beneficial interest in
the 144A Global Note or a Certificated Note Pursuant to Rule 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933 (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Certificated
Note is being transferred to a Person that the Transferor reasonably believed
and believes is purchasing the beneficial interest or Certificated Note 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 beneficial interest or Certificated Note shall be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note or the Certificated Note and in the
Indenture and the Securities Act.
2. __Check if Transferee shall take delivery of a beneficial interest in
the Regulation S Global Note or a Certificated Note 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 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, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Certificated Note shall be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Note and/or the
Certificated Note and in the Indenture and the Securities Act.
3. Check and complete if Transferee shall take delivery of a beneficial
interest in the IAI Global Note or a Certificated Note pursuant to any provision
of the Securities Act other than Rule 144A or Regulation S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Certificated
Notes and pursuant to and in accordance with the Securities Act and any
applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) such Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;
or
(b) such Transfer is being effected to the Company or a subsidiary thereof;
or
(c) such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus
delivery requirements of the Securities Act;
or
(d) such Transfer is being effected to an Institutional Accredited Investor
and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Certificated Notes and the requirements of
the exemption claimed, which certification is supported by (1) a certificate
executed by the Transferee in the form of Exhibit E to the Indenture and (2) if
such Transfer is in respect of a principal amount of Notes at the time of
transfer of less than $100,000, an Opinion of Counsel provided by the Transferor
or the Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Certificated
Note will be subject to the restrictions on transfer
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enumerated in the Private Placement Legend printed on the IAI Global Note and/or
the Certificated Notes and in the Indenture and the Securities Act.
4. Check if Transferee shall take delivery of a beneficial interest in a
Global Exchange Note or a Certificated Exchange Note.
(a) Check if Transfer is pursuant to Rule 144. (i) 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
any applicable blue sky securities laws of any state of the United States and
(ii) the restrictions on transfer contained in the Indenture and the Private
Placement 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 beneficial interest or Certificated
Note shall no longer be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Certificated Notes and in the Indenture.
(b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement 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 beneficial interest or
Certificated Note shall no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Certificated Notes and in the Indenture.
(c) Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is
being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement 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 beneficial interest or
Certificated Note shall not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Certificated Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
-----------------------------------------
Name:
Title:
Dated:
-------------, ------
C-3
EXHIBIT D
FORM OF CERTIFICATE OF EXCHANGE
XXXX
XXXX
Re: 7-3/8% Senior Subordinated Notes due 2014
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of November 25, 2003
(the "Indenture"), by and among Terex Corporation, as issuer (the "Company"),
the guarantors named therein, and HSBC Bank USA, as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
____________, (the "Owner") owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Certificated Notes or Beneficial Interests in a
Restricted Global Note for Certificated Exchange Notes or Beneficial Interests
in a Global Exchange Note.
(a) Check if Exchange is from beneficial interest in a Restricted Global
Note to beneficial interest in a Global Exchange Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
beneficial interest in a Global Exchange Note in an equal principal amount, the
Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the United States Securities Act of 1933 (the
"Securities Act"), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in a Global
Exchange Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(b) Check if Exchange is from beneficial interest in a Restricted Global
Note to a Certificated Exchange Note. In connection with the Exchange of the
Owner's beneficial interest in a Restricted Global Note for a Certificated
Exchange Note, the Owner hereby certifies (i) the Certificated Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Certificated Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(c) Check if Exchange is from Restricted Certificated Note to beneficial
interest in a Global Exchange Note. In connection with the Owner's Exchange of a
Restricted Certificated Note for a beneficial interest in a Global Exchange
Note, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Certificated Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(d) Check if Exchange is from Restricted Certificated Note to Certificated
Exchange Note. In connection with the Owner's Exchange of a Restricted
Certificated Note for a Certificated Exchange Note, the Owner hereby certifies
(i) the Certificated Exchange Note is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Certificated Notes and pursuant
to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Certificated
Exchange Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
2. Exchange of Restricted Certificated Notes or Beneficial Interests in
Restricted Global Notes for Restricted Certificated Notes or Beneficial
Interests in Restricted Global Notes.
(a) Check if Exchange is from beneficial interest in a Restricted Global
Note to Restricted Certificated Note. In connection with the Exchange of the
Owner's beneficial interest in a Restricted Global Note for a Restricted
Certificated Note with an equal principal amount, the Owner hereby certifies
that the Restricted Certificated Note is being acquired for the Owner's own
account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Certificated Note
issued shall continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Certificated Note and
in the Indenture and the Securities Act.
(b) Check if Exchange is from Restricted Certificated Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the
Owner's Restricted Certificated Note for a beneficial interest in the 144A
Global Note, Regulation S Global Note or IAI Global Note, with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the
D-2
beneficial interest issued shall be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
---------------------------------------------
[Insert Name of Owner]
By:
------------------------------------------
Name:
Title:
Dated:
--------------, ------
D-3
EXHIBIT E
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Terex Corporation
500 Post Road East, Suite 320
Westport, CT 06880
HSBC Bank USA
452 Fifth Avenue
New York, NY 10018
Re: 7-3/8% Senior Subordinated Notes due 2014
Reference is hereby made to the Indenture, dated as of November 25, 2003
(the "Indenture"), by and among Terex Corporation, as issuer (the "Company"),
the guarantors named therein, and HSBC Bank USA, as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) > a beneficial interest in a Global Note, or
(b) > a Certificated Note, we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the United States Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and, if such transfer is in respect of
a principal amount of Notes, at the time of transfer of less than $100,000, an
Opinion of Counsel in form reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act, (D) outside the
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing the Certificated Note
or beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
__________________________________________
[Insert Name of Accredited Investor]
By:
__________________________
Name:
Title:
Dated: ________, ____ XXXXf
E-2