Exhibit 4
JLG INDUSTRIES, INC.,
THE NOTE GUARANTORS PARTY HERETO
AND
THE BANK OF NEW YORK,
AS TRUSTEE
8 1/4% SENIOR NOTES DUE 2008
INDENTURE
DATED AS OF MAY 5, 2003
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions............................................................ 1
Section 1.2. Incorporation by Reference of Trust Indenture Act...................... 35
Section 1.3. Rules of Construction.................................................. 35
ARTICLE II
THE NOTES
Section 2.1. Form and Dating........................................................ 36
Section 2.2. Execution and Authentication........................................... 36
Section 2.3. Registrar and Paying Agent............................................. 37
Section 2.4. Paying Agent To Hold Money in Trust.................................... 38
Section 2.5. Holder Lists........................................................... 38
Section 2.6. Transfer and Exchange.................................................. 38
Section 2.7. Mutilated, Destroyed, Lost or Stolen Notes............................. 38
Section 2.8. Temporary Notes........................................................ 39
Section 2.9. Cancellation........................................................... 39
Section 2.10. Defaulted Interest..................................................... 39
Section 2.11. CUSIP and ISIN Numbers................................................. 40
Section 2.12. Additional Notes....................................................... 40
Section 2.13. Additional Interest Under Registration Rights Agreements............... 41
Section 2.14. No Redemption Prior to the Maturity Date............................... 41
ARTICLE III
COVENANTS
Section 3.1. Payment of Notes....................................................... 41
Section 3.2. Maintenance of Office or Agency........................................ 42
Section 3.3. Corporate Existence.................................................... 42
Section 3.4. Payment of Taxes and Other Claims...................................... 42
Section 3.5. Compliance Certificate................................................. 43
Section 3.6. Further Instruments and Acts........................................... 43
Section 3.7. Waiver of Stay, Extension or Usury Laws................................ 43
Section 3.8. Change of Control...................................................... 44
Section 3.9. Limitation on Incurrence of Additional Indebtedness.................... 45
Section 3.10. Limitation on Restricted Payments...................................... 46
Section 3.11. Limitation on Asset Sales.............................................. 49
Section 3.12. Limitation on Ownership and Sale of Capital Stock of Restricted
Subsidiaries........................................................... 52
Section 3.13. Limitation on Designation of Unrestricted Subsidiaries................. 52
Section 3.14. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries................................................ 53
Section 3.15. Limitation on Liens.................................................... 55
Section 3.16. Limitation on Sale and Leaseback Transactions.......................... 55
Section 3.17. Limitation on Transactions with Affiliates............................. 55
Section 3.18. Conduct of Business.................................................... 57
Section 3.19. Reports to Holders..................................................... 57
ARTICLE IV
SUCCESSOR ENTITY
Section 4.1. Merger, Consolidation and Sale of Assets............................... 57
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.1. Events of Default...................................................... 60
Section 5.2. Acceleration........................................................... 61
Section 5.3. Other Remedies......................................................... 62
Section 5.4. Waiver of Past Defaults................................................ 62
Section 5.5. Control by Majority.................................................... 62
Section 5.6. Limitation on Suits.................................................... 62
Section 5.7. Rights of Holders to Receive Payment................................... 63
Section 5.8. Collection Suit by Trustee............................................. 63
Section 5.9. Trustee May File Proofs of Claim, etc.................................. 63
Section 5.10. Priorities............................................................. 64
Section 5.11. Undertaking for Costs.................................................. 64
ARTICLE VI
TRUSTEE
Section 6.1. Duties of Trustee...................................................... 65
Section 6.2. Rights of Trustee. Subject to Section 6.1:............................. 66
Section 6.3. Individual Rights of Trustee........................................... 67
Section 6.4. Trustee's Disclaimer................................................... 67
Section 6.5. Notice of Defaults..................................................... 67
Section 6.6. Reports by Trustee to Holders.......................................... 67
Section 6.7. Compensation and Indemnity............................................. 67
Section 6.8. Replacement of Trustee................................................. 68
Section 6.9. Successor Trustee by Merger............................................ 69
Section 6.10. Eligibility; Disqualification.......................................... 70
Section 6.11. Preferential Collection of Claims Against Company...................... 70
ARTICLE VII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 7.1. Legal Defeasance and Covenant Defeasance............................... 70
Section 7.2. Conditions to Defeasance............................................... 71
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Section 7.3. Application of Trust Money............................................. 73
Section 7.4. Repayment to Company................................................... 73
Section 7.5. Indemnity for U.S. Government Obligations.............................. 73
Section 7.6. Reinstatement.......................................................... 73
Section 7.7. Satisfaction and Discharge............................................. 74
ARTICLE VIII
AMENDMENTS
Section 8.1. Without Consent of Holders............................................. 74
Section 8.2. With Consent of Holders................................................ 75
Section 8.3. Compliance with Trust Indenture Act.................................... 77
Section 8.4. Revocation and Effect of Consents and Waivers.......................... 77
Section 8.5. Notation on or Exchange of Notes....................................... 77
Section 8.6. Trustee to Sign Amendments or Supplements.............................. 77
ARTICLE IX
NOTE GUARANTEES
Section 9.1. Note Guarantees........................................................ 78
Section 9.2. Limitation on Liability; Termination, Release and Discharge............ 79
Section 9.3. Right of Contribution.................................................. 80
Section 9.4. No Subrogation......................................................... 80
Section 9.5. Additional Note Guarantees............................................. 81
ARTICLE X
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls........................................... 81
Section 10.2. Notices................................................................ 81
Section 10.3. Communication by Holders with Other Holders............................ 82
Section 10.4. Certificate and Opinion as to Conditions Precedent..................... 82
Section 10.5. Statements Required in Certificate or Opinion.......................... 82
Section 10.6. Rules by Trustee, Paying Agent and Registrar........................... 83
Section 10.7. Legal Holidays......................................................... 83
Section 10.8. Governing Law, Waiver of Jury Trial, etc............................... 83
Section 10.9. No Recourse Against Others............................................. 84
Section 10.10. Successors............................................................. 84
Section 10.11. Duplicate and Counterpart Originals.................................... 84
Section 10.12. Severability........................................................... 84
Section 10.13. Qualification of Indenture............................................. 84
Section 10.14. Table of Contents; Headings............................................ 84
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RULE 144A/REGULATIONS APPENDIX
EXHIBIT 1 FORM OF NOTE
EXHIBIT A FORM OF EXCHANGE NOTE OR PRIVATE EXCHANGE SECURITY
EXHIBIT B FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO QIB
EXHIBIT C FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS PURSUANT TO REGULATIONS
EXHIBIT D FORM OF RULE 144 CERTIFICATION
EXHIBIT E FORM OF ADDITIONAL NOTE GUARANTEES
INDENTURE, dated as of May 5, 2003, between JLG Industries,
Inc., a Pennsylvania corporation (the "Company"), the Note Guarantors party
hereto and The Bank of New York, a New York banking corporation (the "Trustee"),
as Trustee.
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
8-1/4% Senior Notes Due 2008 issued hereunder.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"8-3/8% Notes" means the $175,000,000 aggregate principal
amount of 8-3/8% Senior Subordinated Notes due 2012 issued by the Company under
the indenture dated as of June 17, 2002, among the Company as issuer, certain of
its Subsidiaries, as guarantors and The Bank of New York, as trustee, as well as
any additional notes issued under that indenture.
"Acquired Indebtedness" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary or at the time it merges or consolidates with the Company or any of
its Restricted Subsidiaries or is assumed in connection with the acquisition of
assets from such Person. Such Indebtedness shall be deemed to have been Incurred
at the time such Person becomes a Restricted Subsidiary or at the time it merges
or consolidates with the Company or a Restricted Subsidiary or at the time such
Indebtedness is assumed in connection with the acquisition of assets from such
Person, whether or not such Indebtedness was incurred in connection with, as a
result of, or in contemplation of, such Acquired Person becoming a Restricted
Subsidiary (or being merged into or consolidated with the Company or any
Restricted Subsidiary) or such acquisition of assets.
"Additional Note Board Resolutions" means resolutions duly
adopted by the Board of Directors of the Company and delivered to the Trustee in
an Officers' Certificate providing for the issuance of Additional Notes.
"Additional Note Guarantee" has the meaning assigned to it in
Section 9.5.
"Additional Note Guarantor" has the meaning assigned to it in
Section 9.5.
"Additional Note Supplemental Indenture" means a supplement to
this Indenture duly executed and delivered by the Company, each Note Guarantor
and the Trustee pursuant to Article VIII providing for the issuance of
Additional Notes.
"Additional Notes" means additional Notes of up to an amount
equal to the difference between $225 million and the aggregate principal amount
of Notes issued as of the Issue Date together with the aggregate principal
amount of any Notes issued
after the Issue Date pursuant to Section 2.12, such difference to exclude the
aggregate principal amount of any replacement Notes and any Exchange Notes as
specified in the relevant Additional Note Board Resolutions or Additional Note
Supplemental Indenture issued therefor in accordance with this Indenture.
"Affiliate" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise; provided, that beneficial ownership of 10% or more of the Voting
Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Affiliate Transaction" has the meaning assigned to it in
Section 3.17(a).
"Asset Acquisition" means:
(1) an Investment by the Company or any Restricted
Subsidiary in any other Person pursuant to which such Person shall
become a Restricted Subsidiary, or shall be merged with or into the
Company or any Restricted Subsidiary;
(2) the acquisition by the Company or any Restricted
Subsidiary of the assets of any Person (other than a Subsidiary of the
Company) which constitute all or substantially all of the assets of
such Person or comprises any division or line of business of such
Person or any other properties or assets of such Person other than in
the ordinary course of business; or
(3) any Revocation with respect to an Unrestricted
Subsidiary.
"Asset Sale" means any direct or indirect sale, disposition,
issuance, conveyance, transfer, lease, assignment or other transfer, including a
Sale and Leaseback Transaction (each, a "disposition") by the Company or any
Restricted Subsidiary of:
(a) any Capital Stock (other than Capital Stock of the
Company); or
(b) any property or assets (other than cash or Cash
Equivalents) of the Company or any Restricted Subsidiary.
Notwithstanding the preceding, the following items shall not
be deemed to be Asset Sales:
(1) the disposition of all or substantially all of the
assets of the Company and its Restricted Subsidiaries as permitted
under Section 4.1;
(2) the disposition of inventory or obsolete or worn-out
assets, including the leasing of inventory by the Company and its
Restricted Subsidiaries
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to its customers (whether or not the leased inventory remains (for tax
or accounting purposes) an asset of the Company or a Restricted
Subsidiary), in each case in the ordinary course of business;
(3) dispositions of assets in any fiscal year with a Fair
Market Value not to exceed $5 million in the aggregate;
(4) for purposes of Section 3.11 only, the making of a
Restricted Payment permitted under Section 3.10;
(5) a disposition to the Company or a Restricted
Subsidiary, including a Person that is or will become a Restricted
Subsidiary immediately after the disposition;
(6) any disposition of Receivables Assets pursuant to a
Limited Recourse Receivables Transaction which constitutes an
Incurrence of Indebtedness by the Company or any Restricted Subsidiary
made in accordance with Section 3.9;
(7) any disposition of Receivables Assets pursuant to a
Qualified Receivables Transaction for fair market value thereof;
provided that at least 75% of the consideration therefor consists of
cash or Cash Equivalents received by the Company or any Restricted
Subsidiary at the time thereof; and
(8) any disposition constituting a Lien (other than a
Sale and Leaseback Transaction) permitted under Section 3.15.
"Asset Sale Offer" has the meaning assigned to it in Section
3.11(c).
"Asset Sale Offer Amount" has the meaning assigned to it in
Section 3.11(c).
"Asset Sale Offer Notice" means notice of an Asset Sale Offer
which shall govern the terms of the Asset Sale Offer and shall state:
(1) the circumstances of the Asset Sale or Sales, the Net
Cash Proceeds of which are included in the Asset Sale Offer, that an
Asset Sale Offer is being made pursuant to Section 3.11(c), and that
all Notes that are timely tendered will be accepted for payment;
(2) the Asset Sale Offer Amount and the Asset Sale Offer
Payment Date, which date shall be a Business Day no earlier than 30
days nor later than 60 days from the date the Asset Sale Offer Notice
is mailed (other than as may be required by law);
(3) that any Notes or portions thereof not tendered or
accepted for payment will continue to accrue interest;
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(4) that, unless the Company defaults in the payment of
the Asset Sale Offer Amount with respect thereto, all Notes or portions
thereof accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest from and after the Asset Sale Offer Payment
Date;
(5) that any Holder electing to have any Notes or
portions thereof purchased pursuant to the Asset Sale Offer will be
required to surrender such Notes, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of such Notes completed, to
the Paying Agent at the address specified in the notice prior to the
close of business on the third Business Day preceding the Asset Sale
Offer Payment Date;
(6) that any Holder shall be entitled to withdraw such
election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Asset Sale Offer
Payment Date, a facsimile transmission or letter, setting forth the
name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing such Holder's
election to have such Notes or portions thereof purchased pursuant to
the Asset Sale Offer;
(7) that any Holder electing to have Notes purchased
pursuant to the Asset Sale Offer must specify the principal amount that
is being tendered for purchase, which principal amount must be $1,000
or an integral multiple thereof;
(8) that any Holder of Certificated Notes whose
Certificated Notes are being purchased only in part will be issued new
Certificated Notes equal in principal amount to the unpurchased portion
of the Certificated Note or Notes surrendered, which unpurchased
portion will be equal in principal amount to $1,000 or an integral
multiple thereof;
(9) that the Trustee will return to the Holder of a
Global Note that is being purchased in part, such Global Note with a
notation on the schedule of increases or decreases thereof adjusting
the principal amount thereof to be equal to the unpurchased portion of
such Global Note; and
(10) any other information necessary to enable any Holder
to tender Notes and to have such Notes purchased pursuant to Section
3.11(f).
"Asset Sale Offer Payment Date" has the meaning assigned to it
in Section 3.11(e).
"Asset Sale Transaction" means any Asset Sale and, whether or
not constituting an Asset Sale, (1) any sale or other disposition of Capital
Stock, (2) any Designation with respect to an Unrestricted Subsidiary and (3)
any sale or other disposition of property or assets excluded from the definition
of Asset Sale by clause (3) of that definition.
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"Attributable Debt" in respect of a Sale and Leaseback
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Notes, compounded annually) of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale and Leaseback Transaction (including any period
for which such lease has been extended); provided that if such Sale and
Leaseback Transaction results in Capitalized Lease Obligations, the amount of
Indebtedness represented thereby will be determined in accordance with the
definition of "Capitalized Lease Obligations".
"Authenticating Agent" has the meaning assigned to it in
Section 2.2(d).
"Bank Credit Facilities" means (i) the Amended and Restated
Credit Agreement dated June 17, 2002 by and among the Company, its Subsidiaries
listed on Schedule 1 thereto, the lenders listed on Schedule 2 thereto, Wachovia
Bank, National Association and Bank One, Michigan, as amended by Amendment No. 1
to Amended and Restated Credit Agreement dated August 30, 2002, Amendment No. 2
and Waiver Under Amended and Restated Credit Agreement dated February 21, 2003
and Amendment No. 3 Under Amended and Restated Credit Agreement dated April 28,
2003 and (ii) the Second Amended and Restated Financing Agreement, dated June
17, 2002, by and among the Company, its subsidiaries party thereto and
Manufacturers and Traders Trust Company (formerly known as Allfirst Bank), as
amended by Amendment No. 1 to Second Amended and Restated Financing Agreement
dated August 30, 2002, Amendment No. 2 and Waiver Under Second Amended and
Restated Financing Agreement dated February 21, 2003 and Amendment No. 3 Under
Amended and Restated Financing Agreement dated April 28, 2003, in each case,
together with the related documents thereto (including any Guarantee agreements
and security documents), as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder or extending the maturity of,
refinancing, replacing or otherwise restructuring all or any portion of the
Indebtedness or commitments under such agreement(s) or any successor or
replacement agreement(s) and whether by the same or any other agent, lender or
group of lenders, in each case in the bank credit market.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"Bankruptcy Law Event of Default" means:
(1) the entry by a court of competent jurisdiction of:
(i) a decree or order for relief in respect of the Company or any other
Bankruptcy Party in an involuntary case or proceeding under any
Bankruptcy Law or (ii) a decree or order (A) adjudging the Company or
any other Bankruptcy Party a bankrupt or insolvent, (B) approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of, or in respect of, the Company or any
other Bankruptcy Party under any Bankruptcy Law, (C) appointing a
Custodian of the Company or any other Bankruptcy Party or of any
substantial part of the
5
property of the Company or any other Bankruptcy Party, or (D) ordering
the winding-up or liquidation of the affairs of the Company or any
other Bankruptcy Party, and in each case, the continuance of any such
decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive calendar days; or
(2) (i) the commencement by the Company or any other
Bankruptcy Party of a voluntary case or proceeding under any Bankruptcy
Law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, (ii) the consent by the Company or any other Bankruptcy
Party to the entry of a decree or order for relief in respect of the
Company or such Bankruptcy Party in an involuntary case or proceeding
under any Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or such Bankruptcy
Party, (iii) the filing by the Company or any other Bankruptcy Party of
a petition or answer or consent seeking reorganization or relief under
any Bankruptcy Law, (iv) the consent by the Company or any other
Bankruptcy Party to the filing of such petition or to the appointment
of or taking possession by a Custodian of the Company or such
Bankruptcy Party or of any substantial part of the property of the
Company or such Bankruptcy Party, (v) the making by the Company or any
other Bankruptcy Party of an assignment for the benefit of creditors,
(vi) the admission by the Company or any other Bankruptcy Party in
writing of its inability to pay its debts generally as they become due,
(vii) the approval by stockholders of the Company or any other
Bankruptcy Party of any plan or proposal for the liquidation or
dissolution of the Company or such Bankruptcy Party, or (viii) the
taking of corporate action by the Company or any other Bankruptcy Party
in furtherance of any such action.
"Bankruptcy Party" means (i) the Company; (ii) each
Significant Subsidiary; or (iii) one or more Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary; it being understood that
any reference in this Indenture to any Bankruptcy Party shall in the case of
multiple Restricted Subsidiaries that individually do not constitute a
Significant Subsidiary, but that, taken together, do constitute a Significant
Subsidiary, only constitutes a reference to all such Restricted Subsidiaries
taken together.
"Board of Directors" means, with respect to any Person, the
board of directors, management committee or similar governing body of such
Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banking institutions are authorized or required by
law to close in New York City.
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"Capitalized Lease Obligations" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP. For purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means:
(1) with respect to any Person that is a corporation, any
and all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person;
(2) with respect to any Person that is not a corporation,
any and all partnership or other equity or ownership interests of such
Person; and
(3) any warrants, rights or options to purchase any of
the instruments or interests referred to in clause (1) or (2) above.
"Cash Equivalents" means:
(1) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued
by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof;
(2) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings obtainable from either Standard &
Poor's Corporation ("S&P") or Moody's Investors Service, Inc.
("Moody's") or any successors thereto;
(3) commercial paper maturing no more than one year from
the date of acquisition thereof and, at the time of acquisition, having
a rating of at least A-1 from S&P or P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances
maturing within one year from the date of acquisition thereof issued by
any bank organized under the laws of the United States of America or
any state thereof or the District of Columbia or any U.S. branch of a
non-U.S. bank having at the date of acquisition thereof combined
capital and surplus of not less than $500 million;
(5) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause
(1) above entered into with any bank meeting the qualifications
specified in clause (4) above; and
7
(6) investments in money market funds which invest
substantially all of their assets in securities of the types described
in clauses (1) through (5) above.
"Certificated Note" means any Note issued in fully-registered
certificated form (other than a Global Note), which shall be substantially in
the form of Exhibit 1 to the Appendix (as defined in Section 2.1), with
appropriate legends as specified in Section 2.1 and Exhibit 1 to the Appendix.
"Change of Control" means the occurrence of one or more of the
following events:
(1) any Person or Group is or becomes the "beneficial
owner," directly or indirectly, in the aggregate of more than 35% of
the total voting power of the Voting Stock of the Company (including a
Successor Entity, if applicable), whether by virtue of the issuance,
sale or other disposition of Capital Stock of the Company by the
Company or by a direct or indirect holder of Capital Stock of the
Company, a merger or consolidation involving the Company, its direct or
indirect shareholders or such Person or Group, a sale of assets by the
Company, its direct or indirect shareholders, any voting trust
agreement or other agreement to which the Company, its direct or
indirect shareholders or any such Person or Group is a party or is
subject, or otherwise; or
(2) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors of the Company, together with any new directors whose
election by such Board of Directors or whose nomination for election by
the shareholders of the Company was approved by a vote of a majority of
the directors of the Company then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board of Directors of the
Company then in office; or
(3) the approval by the holders of Capital Stock of the
Company of any plan or proposal for the liquidation or dissolution of
the Company, whether or not otherwise in compliance with the provisions
of the Indenture.
For purposes of this definition:
(a) "beneficial owner" shall have the meaning specified
in Rules 13d-3 and 13d-5 under the Exchange Act, except that any Person
or Group shall be deemed to have "beneficial ownership" of all
securities that such Person or Group has the right to acquire, whether
such right is exercisable immediately, only after the passage of time
or upon the occurrence of a subsequent condition.
(b) "Person" and "Group" shall have the meanings for
"person" and "group" as used in Sections 13(d) and 14(d) of the
Exchange Act; and
(c) any other Person or Group shall be deemed to
beneficially own any Voting Stock of a corporation held by any other
corporation (the "parent
8
corporation") so long as such Person or Group, beneficially owns,
directly or indirectly, in the aggregate at least 35% of the voting
power of the Voting Stock of the parent corporation and no other Person
or Group beneficially owns an equal or greater amount of the Voting
Stock of the parent corporation.
"Change of Control Offer" has the meaning assigned to it in
Section 3.8(b).
"Change of Control Offer Notice" means a notice sent by the
Company pursuant to Section 3.8(b), which notice shall govern the terms of the
Change of Control Offer and shall state:
(1) that a Change of Control has occurred, the
circumstances or events causing such Change of Control and that a
Change of Control Offer is being made pursuant to Section 3.8(b), and
that all Notes that are timely tendered will be accepted for payment;
(2) the Change of Control Payment, and the Change of
Control Payment Date, which date shall be a Business Day no earlier
than 30 calendar days nor later than 60 calendar days subsequent to the
date such notice is mailed (other than as may be required by law);
(3) that any Notes or portions thereof not tendered or
accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in the payment of
the Change of Control Payment with respect thereto, all Notes or
portions thereof accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest from and after the Change of
Control Payment Date;
(5) that any Holder electing to have any Notes or
portions thereof purchased pursuant to a Change of Control Offer will
be required to tender such Notes, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of such Notes completed, to
the Paying Agent at the address specified in the notice prior to the
close of business on the third Business Day preceding the Change of
Control Payment Date;
(6) that any Holder shall be entitled to withdraw such
election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Change of Control
Payment Date, a facsimile transmission or letter, setting forth the
name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing such Holder's
election to have such Notes or portions thereof purchased pursuant to
the Change of Control Offer;
(7) that any Holder electing to have Notes purchased
pursuant to the Change of Control Offer must specify the principal
amount that is being tendered
9
for purchase, which principal amount must be $1,000 or an integral
multiple thereof;
(8) that any Holder of Certificated Notes whose
Certificated Notes are being purchased only in part will be issued new
Certificated Notes equal in principal amount to the unpurchased portion
of the Certificated Note or Notes surrendered, which unpurchased
portion will be equal in principal amount to $1,000 or an integral
multiple thereof;
(9) that the Trustee will return to the Holder of a
Global Note that is being purchased in part, such Global Note with a
notation on Schedule A thereof adjusting the principal amount thereof
to be equal to the unpurchased portion of such Global Note; and
(10) any other information necessary to enable any Holder
to tender Notes and to have such Notes purchased pursuant to Section
3.8.
"Change of Control Payment" has the meaning assigned to it in
Section 3.8(a).
"Change of Control Payment Date" has the meaning assigned to
it in Section 3.8(b).
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodity Derivative Agreement" means, in respect of any
Person, any commodity swap agreement (including caps, collars, swaptions,
forward agreements and other similar instruments or agreements) and/or other
types of agreements and instruments designed to hedge commodity risk of such
Person.
"Common Stock" of any Person means any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of such Person's common equity interests,
whether outstanding on the Issue Date or issued after the Issue Date, and
includes all series and classes of such common equity interests.
"Company" means the party named as such in the introductory
paragraph to this Indenture and its successors and assigns, including any
Successor Entity that becomes such in accordance with Article IV.
"Company Order" has the meaning assigned to it in Section
2.2(c).
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period, plus or minus the following to the extent deducted or
added in calculating such Consolidated Net Income:
(1) Consolidated Income Tax Expense for such period;
10
(2) Consolidated Interest Expense for such period;
(3) Consolidated Non-cash Charges for such period;
(4) net after-tax losses from Asset Sale Transactions or
abandonments or reserves relating thereto for such period;
(5) the cash portion of the Orrville Restructuring Charge
taken for such period; less
(6) (x) all non-cash credits and gains for such period
and (y) all cash payments during such period relating to non-cash
charges that were added back in determining Consolidated EBITDA in any
prior period.
Notwithstanding the foregoing, the items specified in clauses
(1), (3) and (4) for any Restricted Subsidiary shall be added to Consolidated
Net Income in calculating Consolidated EBITDA only:
(a) in proportion to the percentage of the total Capital
Stock of such Restricted Subsidiary held directly or indirectly by the
Company, and
(b) to the extent that a corresponding amount would be
permitted at the date of determination to be distributed to the Company
by such Restricted Subsidiary pursuant to its charter and bylaws and
each law, regulation, agreement or judgment applicable to such
distribution.
"Consolidated Fixed Charge Coverage Ratio" means, as of any
date of determination, the ratio of the aggregate amount of Consolidated EBITDA
for the four most recent full fiscal quarters for which financial statements are
available ending prior to the date of such determination (the "Four Quarter
Period") to Consolidated Fixed Charges for such Four Quarter Period. For
purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis in
accordance with Regulation S-X under the Securities Act for the period of such
calculation to:
(1) the Incurrence or repayment (excluding revolving
credit borrowings Incurred or repaid in the ordinary course of business
for working capital purposes) or redemption of any Indebtedness or
Preferred Stock of the Company or any of its Restricted Subsidiaries
(and the application of the proceeds thereof), including the Incurrence
of any Indebtedness or Preferred Stock (and the application of the
proceeds thereof) giving rise to the need to make such determination,
occurring during such Four Quarter Period or at any time subsequent to
the last day of such Four Quarter Period and on or prior to such date
of determination, as if such Incurrence or repayment, as the case may
be (and the application of the proceeds thereof), occurred on the first
day of such Four Quarter Period; and
11
(2) any Asset Sale Transaction or Asset Acquisition
(including any Asset Acquisition giving rise to the need to make such
determination as a result of the Company or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary
as a result of the Asset Acquisition) Incurring Acquired Indebtedness
and including by giving pro forma effect to any Consolidated EBITDA
(provided, that such pro forma Consolidated EBITDA shall be calculated
in a manner consistent with the exclusions in the definition of
Consolidated Net Income) attributable to the assets which are the
subject of the Asset Sale Transaction or Asset Acquisition during the
Four Quarter Period) occurring during the Four Quarter Period or at any
time subsequent to the last day of the Four Quarter Period and on or
prior to such date of determination, as if such Asset Sale Transaction
or Asset Acquisition (including the Incurrence of any such Acquired
Indebtedness) occurred on the first day of the Four Quarter Period.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this "Consolidated Fixed
Charge Coverage Ratio,"
(a) interest on outstanding Indebtedness determined on a
fluctuating basis as of the date of determination and which will
continue to be so determined thereafter shall be deemed to have accrued
at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on such date of determination;
(b) if interest on any Indebtedness actually Incurred on
such date of determination may optionally be determined at an interest
rate based upon a factor of a prime or similar rate, a euro currency
interbank offered rate, or other rates, then the interest rate in
effect on such date of determination will be deemed to have been in
effect during the Four Quarter Period; and
(c) notwithstanding clause (a) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such
interest is covered by Hedging Obligations, shall be deemed to accrue
at the rate per annum resulting after giving effect to the operation of
such agreements.
"Consolidated Fixed Charges" means, for any period, the sum,
without duplication, of:
(1) Consolidated Interest Expense, plus
(2) the product of:
(a) the amount of all cash and non-cash dividend
payments on any series of Preferred Stock or Disqualified
Capital Stock of the Company or any Restricted Subsidiary
(other than dividends paid in Qualified Capital Stock) or any
Restricted Subsidiaries paid, accrued or scheduled to be paid
or accrued during such period times
12
(b) a fraction, the numerator of which is one
and the denominator of which is one minus the then current
effective consolidated U.S. federal, state and local tax rate
of the Company, expressed as a decimal.
"Consolidated Income Tax Expense" means, with respect to the
Company for any period, the provision for U.S. federal, state, local and
non-U.S. income taxes payable by the Company and its Restricted Subsidiaries for
such period as determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the sum
of, without duplication determined on a consolidated basis in accordance with
GAAP:
(1) the aggregate of cash and non-cash interest expense
of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including
(whether or not interest expense in accordance with GAAP):
(a) any amortization or accretion of debt
discount or any interest paid on Indebtedness of the Company
in the form of additional Indebtedness,
(b) any amortization of deferred financing
costs,
(c) the net costs under Hedging Obligations
(including amortization of fees),
(d) all capitalized interest,
(e) the interest portion of any deferred payment
obligation,
(f) commissions, discounts and other fees and
charges Incurred in respect of letters of credit or bankers'
acceptances, and
(g) any interest expense on Indebtedness of
another Person that is (i) Guaranteed by the Company or one of
its Restricted Subsidiaries (excluding interest expense (other
than interest expense of the Company and its Restricted
Subsidiaries determined on a consolidated basis in accordance
with GAAP, which is not reimbursed to the Company and its
Restricted Subsidiaries) on Indebtedness of customers of the
Company or its Restricted Subsidiaries used to finance the
purchase of inventory and related services from the Company or
any of its Restricted Subsidiaries if the Company or a
Restricted Subsidiary has an enforceable right to sell such
inventory to satisfy the Guaranteed Indebtedness or its
reimbursement for payment thereof or similar rights related
thereto) or (ii) secured by a Lien on the assets of the
Company or one of its Restricted Subsidiaries; in each case
whether or not such Guarantee or Lien is called upon; and
13
(2) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by the
Company and its Restricted Subsidiaries during such period.
"Consolidated Net Income" means, with respect to the Company
for any period, the aggregate net income (or loss) of the Company and its
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided, that there shall be excluded therefrom:
(1) net after-tax gains from Asset Sale Transactions or
abandonments or reserves relating thereto;
(2) net after-tax items classified as extraordinary gains
or losses;
(3) for purposes of calculating Consolidated Net Income
pursuant to Section 3.10(a)(C)(i) only, the net income (or loss) of:
(a) any Person acquired in a "pooling of
interests" transaction accrued prior to the date it becomes a
Restricted Subsidiary or is merged or consolidated with the
Company or any Restricted Subsidiary; or
(b) a Successor Entity prior to assuming the
Company's obligations under the Indenture and the Notes
pursuant to Section 4.1.
(4) the net income (but not loss) of any Restricted
Subsidiary to the extent that a corresponding amount could not be
distributed to the Company at the date of determination as a result of
any restriction pursuant to such Restricted Subsidiary's charter or
bylaws or any law, regulation, agreement or judgment applicable to any
such distribution;
(5) the net income (but not loss) of any Person other
than the Company or a Restricted Subsidiary;
(6) any increase (but not decrease) in net income
attributable to minority interests in any Restricted Subsidiary;
(7) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date;
and
(8) the cumulative effect of changes in accounting
principles.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
14
"Consolidated Non-cash Charges" means, for any period, the
aggregate depreciation, amortization and other non-cash expenses or losses of
the Company and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charge which
constitutes an accrual of or a reserve for cash charges for any future period or
the amortization of a prepaid cash expense paid in a prior period).
"Consolidated Senior Debt Ratio" means, as of any date of
determination, the ratio of (x)(A) the total consolidated Indebtedness of the
Company and its Restricted Subsidiaries that is Senior Indebtedness minus (B)
the total consolidated cash and Cash Equivalents of the Company and its
Restricted Subsidiaries, in each case as of the end of the most recent full
fiscal quarter for which financial statements are available ending prior to the
date of such determination to (y) the aggregate amount of Consolidated EBITDA
for the then Four Quarter Period, in each case with such pro forma adjustments
to the amounts of consolidated Indebtedness, consolidated cash and Cash
Equivalent and Consolidated EBITDA as are appropriate and consistent with the
pro forma adjustment provisions set forth in the definition of "Consolidated
Fixed Charge Coverage Ratio".
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 101 Barclay Street, New York, New
York 10286, Attention: Corporate Trust Department, or such other address as the
Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by
notice to the Holders and the Company).
"Covenant Defeasance" has the meaning assigned to it in
Section 7.1(c).
"Credit Derivative Agreement" means, in respect of any Person,
any credit derivative or other similar derivative instrument and/or agreement
designed to hedge credit risk of such Person.
"Currency Derivative Agreement" means, in respect of any
Person, any foreign exchange contract or currency swap agreement (including any
forward agreement, swaption and other similar agreement) or other agreements and
instruments designed to hedge foreign currency risk of such Person.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an Event
of Default.
"Defaulted Interest" has the meaning assigned to it in
paragraph 1 of the Form of Reverse Side of Note contained in Exhibit 1 to the
Appendix.
"Designation" and "Designation Amount" have the meanings
assigned to it in Section 3.13.
15
"Disqualified Capital Stock" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the sole option of the holder thereof, in any case, on or prior to the 91st
day after the final maturity date of the Notes.
"Domestic Restricted Subsidiary" means any direct or indirect
Restricted Subsidiary (other than a Receivables Subsidiary) that is organized
under the laws of the United States, any state or possession thereof or the
District of Columbia.
"DTC" means The Depository Trust Company, its nominees and
their respective successors and assigns, or such other depositary institution
hereinafter appointed by the Company that is a clearing agency registered under
the Exchange Act.
"Event of Default" has the meaning assigned to it in Section
5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" has the meaning assigned to it in the
Appendix hereto.
"Exchange Offer Registration Statement" shall have the meaning
assigned to such term in the Issue Date Registration Rights Agreement and any
other Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset, the
price (after taking into account any liabilities relating to such assets) which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of which is under
any compulsion to complete the transaction; provided, that the Fair Market Value
of any such asset or assets shall be determined conclusively by the Board of
Directors of the Company acting in good faith, and shall be evidenced by a Board
Resolution.
"Four Quarter Period" has the meaning set forth in the
definition of Consolidated Fixed Charge Coverage Ratio above.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States that are in effect as of the
Issue Date.
"Global Notes" has the meaning assigned to it in Section
2.1(a) of the Appendix hereto.
16
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any other
Person:
(1) to purchase or pay, or advance or supply funds for
the purchase or payment of, such Indebtedness of such other Person,
whether arising by virtue of partnership arrangements, or by a binding
agreement to keep-well that is by its terms enforceable by one or more
Persons, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or
otherwise, or
(2) entered into for purposes of assuring in any other
manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof, in whole or in
part,
provided, that "Guarantee" shall not include (i) endorsements for collection or
deposit in the ordinary course of business, (ii) obligations, contingent or
otherwise, pursuant to Standard Undertakings, or (iii) recourse in Limited
Recourse Receivables Transactions. "Guarantee" used as a verb has a
corresponding meaning.
"Hedging Obligations" means the obligations of any Person
pursuant to any Interest Rate Derivative Agreement, Currency Derivative
Agreement, Credit Derivative Agreement or Commodity Derivative Agreement.
"Holder" means the Person in whose name a Note is registered
in the Note Register.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, Guarantee or otherwise become liable in respect
of such Indebtedness or other obligation on the balance sheet of such Person
(and "Incurrence," "Incurred" and "Incurring" shall have meanings correlative to
the preceding).
"Indebtedness" means with respect to any Person, without
duplication:
(1) the principal amount (or, if less, the accreted
value) of all obligations of such Person for borrowed money;
(2) the principal amount (or, if less, the accreted
value) of all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all obligations of such Person issued or assumed as
the deferred purchase price of property, all conditional sale
obligations and all obligations under any title retention agreement
(but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business that are not
17
overdue by 90 days or more or are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted);
(5) all letters of credit, bankers' acceptances or
similar credit transactions, including reimbursement obligations of
such Person in respect thereof;
(6) Guarantees and other contingent obligations of such
Person in respect of Indebtedness referred to in clauses (1) through
(5) above and clauses (8) through (10) below;
(7) all Indebtedness of any other Person of the type
referred to in clauses (1) through (6) which is secured by any Lien on
any property or asset of such Person, the amount of such Indebtedness
being deemed to be the lesser of the Fair Market Value of such property
or asset or the amount of the Indebtedness so secured;
(8) all obligations under Hedging Obligations of such
Person;
(9) all obligations reflected as debt on the balance
sheet of such Person in accordance with GAAP in connection with the
sale, conveyance, securitization or other transfer of, or the creation
of a security interest in, Receivables Assets; and
(10) all Disqualified Capital Stock issued by such Person
with the amount of Indebtedness represented by such Disqualified
Capital Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends, if any; provided, that:
(a) if the Disqualified Capital Stock does not
have a fixed repurchase price, such maximum fixed repurchase
price shall be calculated in accordance with the terms of the
Disqualified Capital Stock as if the Disqualified Capital
Stock were purchased on any date on which Indebtedness shall
be required to be determined pursuant to the Indenture, and
(b) if the maximum fixed repurchase price is
based upon, or measured by, the fair market value of the
Disqualified Capital Stock, the fair market value shall be the
Fair Market Value thereof.
"Indenture" means this Indenture as amended or supplemented
from time to time, including the exhibits hereto.
"Independent Financial Advisor" means an accounting firm,
appraisal firm, investment banking firm or consultant of nationally recognized
standing that is, in the judgment of the Company's Board of Directors, qualified
to perform the task for
18
which it has been engaged and which is independent in connection with the
relevant transaction.
"Initial Notes" has the meaning assigned to it in the
Appendix.
"Interest Payment Date" means the stated due date of an
installment of interest on the Notes as specified in the Form of Face of Note
contained in Exhibit 1 to the Appendix.
"Interest Rate Derivative Agreement" of any Person means any
interest rate swap agreement (including interest rate swaps, caps, floors,
collars, swaptions, forward agreements or forward rate instruments and other
similar agreements) and/or other types of agreements and instruments designed to
hedge interest rate risk of such Person.
"Investment" means, with respect to any Person, any:
(1) direct or indirect loan or other extension of credit
(including a Guarantee) to any other Person,
(2) capital contribution (by means of any transfer of
cash or other property to others or any payment for property or
services for the account or use of others) to any other Person, or
(3) any purchase or acquisition by such Person of any
Capital Stock, bonds, notes, debentures or other securities or
evidences of Indebtedness issued by, any other Person.
"Investment" shall exclude accounts receivable or deposits
arising in the ordinary course of business. "Invest," "Investing" and "Invested"
shall have corresponding meanings.
For purposes of Section 3.10 herein, the Company shall be
deemed to have made an "Investment" in an Unrestricted Subsidiary at the time of
its Designation, which shall be valued at the Fair Market Value of the sum of
the net assets of such Unrestricted Subsidiary at the time of its Designation
and the amount of any Indebtedness of such Unrestricted Subsidiary Guaranteed by
the Company or any Restricted Subsidiary or owed to the Company or any
Restricted Subsidiary immediately following such Designation. Any property
transferred to or from an Unrestricted Subsidiary will be valued at its Fair
Market Value at the time of such transfer. If the Company or any Restricted
Subsidiary sells or otherwise disposes of any Common Stock of a Restricted
Subsidiary (including any issuance and sale of Capital Stock by a Restricted
Subsidiary) such that, after giving effect to any such sale or disposition, such
Restricted Subsidiary would cease to be a Subsidiary of the Company, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to sum of the Fair Market Value of the Capital Stock of such
former Restricted Subsidiary held by the Company or any Restricted Subsidiary
immediately following such sale or other disposition and the amount of any
Indebtedness of such former Restricted Subsidiary
19
Guaranteed by the Company or any Restricted Subsidiary or owed to the Company or
any other Restricted Subsidiary immediately following such sale or other
disposition.
"Investment Return" means, in respect of any Investment (other
than a Permitted Investment) made after the Issue Date by the Company or any
Restricted Subsidiary:
(1) the cash proceeds received by the Company upon the
sale, liquidation or repayment of, or the payment of interest on, such
Investment or, in the case of a Guarantee, the amount of the Guarantee
upon the unconditional release of the Company and its Restricted
Subsidiaries in full, less any payments previously made by the Company
or any Restricted Subsidiary in respect of such Guarantee;
(2) in the case of the Revocation of the Designation of
an Unrestricted Subsidiary, an amount equal to the lesser of:
(a) the Company's Investment in such
Unrestricted Subsidiary at the time of such Revocation;
(b) that portion of the Fair Market Value of the
net assets of such Unrestricted Subsidiary at the time of
Revocation that is proportionate to the Company's equity
interest in such Unrestricted Subsidiary at the time of
Revocation; and
(c) the Designation Amount with respect to such
Unrestricted Subsidiary upon its Designation which was treated
as a Restricted Payment; and
(3) in the event the Company or any Restricted Subsidiary
makes any Investment in a Person that, as a result of or in connection
with such Investment, becomes a Restricted Subsidiary, an amount equal
to the Company's or any Restricted Subsidiary's existing Investment in
such Person,
in the case of each of clauses (1), (2) and (3), up to the amount of such
Investment that was treated as a Restricted Payment pursuant to Section
3.10(a)(C) less the amount of any previous Investment Return in respect of such
Investment.
"Issue Date" means the first date of issuance of Notes under
the Indenture.
"Issue Date Notes" means the $125,000,000 aggregate principal
amount of Notes originally issued on the Issue Date, and any replacement Notes,
Private Exchange Securities and Exchange Notes, issued therefor in accordance
with this Indenture.
"Issue Date Registration Rights Agreement" means the
Registration Rights Agreement, dated as of May 5, 2003, by and among the
Company, the Note Guarantors and Credit Suisse First Boston LLC, Deutsche Bank
Securities, Inc., Banc
20
One Capital Markets, Inc., BMO Nesbitt Burns Corp., Credit Lyonnais Securities
(USA) Inc., NatCity Investments, Inc. and SunTrust Capital Markets, Inc., as
Initial Purchasers.
"Legal Defeasance" has the meaning assigned to it in Section
7.1(b).
"Legal Holiday" has the meaning assigned to it in Section
10.7.
"Lien" means any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest); provided that, the lessee in respect
of a Capitalized Lease Obligation shall be deemed to have Incurred a Lien on the
property leased thereunder.
"Limited Recourse Receivables Transaction" means a sale,
conveyance, assignment or other transfer or securitization of, or creation of a
security interest in, Receivables Assets by the Company and its Restricted
Subsidiaries on a limited recourse basis which constitutes an Incurrence of
Indebtedness specified in clause (9) of the definition of "Indebtedness."
"Material Domestic Subsidiary" means any Domestic Restricted
Subsidiary which either: (i) comprised five percent (5%) or more of the assets
of Company and its Restricted Subsidiaries on a consolidated basis as of the
most recent date for which a balance sheet has been delivered (or is required to
have been delivered under Section 3.19), or (ii) was responsible for five
percent (5%) or more of Consolidated EBITDA for the most recent four fiscal
quarters of the Company completed on or before such date without giving effect
to clause (b) of the definition thereof.
"Maturity Date" means May 1, 2008
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents, including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents received by the Company or any of its Restricted Subsidiaries from
such Asset Sale, net of:
(1) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including legal, accounting and investment banking
fees and sales commissions);
(2) taxes paid or payable in respect of such Asset Sale
after taking into account any reduction in consolidated tax liability
due to available tax credits or deductions and any tax sharing
arrangements;
(3) repayment of Indebtedness secured by a Lien permitted
under the Indenture that is required to be repaid in connection with
such Asset Sale; and
(4) appropriate amounts to be provided by the Company or
any Restricted Subsidiary, as the case may be, as a reserve, in
accordance with GAAP, against any liabilities associated with such
Asset Sale and retained by the
21
Company or any Restricted Subsidiary, as the case may be, after such
Asset Sale, including pension and other post-employment benefit
liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such
Asset Sale, but excluding any reserves with respect to Indebtedness.
"Note Guarantee" means the guarantee of the Company's
Obligations under this Indenture and the Notes by each Note Guarantor pursuant
to Article IX.
"Note Guarantor" means, at any time, any Material Domestic
Subsidiary which provides a Note Guarantee pursuant to Article IX until such
time as such Material Domestic Subsidiary is released and relieved of its
obligations under its Note Guarantee in accordance with Article IX.
"Note Register" has the meaning assigned to it in Section 2.3.
"Notes" means any of the Company's 8-1/4% Senior Notes Due
2008 issued and authenticated pursuant to this Indenture.
"Obligations" means, with respect to any Indebtedness, any
principal, interest (including Post-Petition Interest), penalties, fees,
indemnifications, reimbursements, damages, and other liabilities payable under
the documentation governing such Indebtedness, including in the case of the
Notes and the Note Guarantees, the Indenture and the Registration Rights
Agreement.
"Officer" means, when used in connection with any action to be
taken by the Company or a Note Guarantor, as the case may be, the Chairman of
the Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary of the Company or any Assistant Secretary of the
Company.
"Officers' Certificate" means, when used in connection with
any action to be taken by the Company or a Note Guarantor, as the case may be, a
certificate signed by two Officers and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who,
unless otherwise indicated in this Indenture, may be an employee of or counsel
for the Company and who shall be reasonably acceptable to the Trustee.
"Orrville Restructuring Charge" means the restructuring charge
(the cash portion not to exceed $3,400,000) incurred in connection with the
closing of the Company's facility in Orrville, Ohio.
"Outstanding" means, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture, except:
(1) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
22
(2) Notes, or portions thereof, for the payment or
purchase of which (including pursuant to an Asset Sale Offer or Change
of Control Offer) money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company,
a Note Guarantor or an Affiliate of the Company) in trust or set aside
and segregated in trust by the Company (if the Company, a Note
Guarantor or an Affiliate of the Company is acting as Paying Agent) for
the Holders of such Notes; provided that, if Notes (or portions
thereof) are to be purchased, notice of such purchase has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(3) Notes which have been surrendered pursuant to Section
2.7 or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any
such Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Notes are held by a bona
fide purchaser in whose hands such Notes are valid obligations of the
Company; and
(4) solely to the extent provided in Article VII, Notes
which are subject to Legal Defeasance or Covenant Defeasance as
provided in Article VII;
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of the Outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Notes
owned by the Company or any other obligor upon the Notes or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, modification or waiver, only Notes which a Trust Officer of the Trustee
actually knows to be so owned shall be so disregarded. Notes so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Notes and that the pledgee is not the Company or any other
obligor upon the Notes or any Affiliate of the Company or of such other obligor.
"Paying Agent" has the meaning assigned to it in Section
2.3(a).
"Permitted Business" means the business or businesses
conducted by the Company and its Restricted Subsidiaries as of the Issue Date
and any business ancillary or complementary thereto, it being understood, for
the avoidance of doubt, that any business that permits the Company and its
Restricted Subsidiaries to vertically integrate its business or businesses
conducted as of the Issue Date shall be considered to be ancillary or
complementary thereto.
"Permitted Indebtedness" means, without duplication, each of
the following:
(1) Indebtedness of $125 million in respect of the Notes
(other than Additional Notes);
23
(2) Guarantees by any Note Guarantor of Indebtedness of
the Company or any other Note Guarantor permitted under the Indenture;
provided, that if any such Guarantee is of Subordinated Indebtedness,
then the Note Guarantee of such Note Guarantor shall be senior to such
Note Guarantor's Guarantee of such Subordinated Indebtedness;
(3) Indebtedness Incurred by the Company and any Note
Guarantor pursuant to the Bank Credit Facilities in an aggregate
principal amount at any time outstanding not to exceed $275 million,
less the amount of any prepayments or permanent reductions of
commitments in respect of such Indebtedness made with the Net Cash
Proceeds of an Asset Sale in order to comply with Section 3.11 and it
being understood that amounts outstanding under the Bank Credit
Facilities on the Issue Date are deemed to be Incurred under this
clause (3);
(4) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date other than Indebtedness
under the Bank Credit Facilities or otherwise specified under any of
the other clauses of this definition of Permitted Indebtedness;
(5) Hedging Obligations entered into in the ordinary
course of business and not for speculative purposes;
(6) intercompany Indebtedness between the Company and any
of its Restricted Subsidiaries and between or among the Restricted
Subsidiaries; provided, that:
(a) if the Company or any Note Guarantor is the
obligor on such Indebtedness, such Indebtedness must be
expressly subordinated to the prior payment in full of all
obligations under the Notes and the Indenture, in the case of
the Company, or such Note Guarantor's Note Guarantee, in the
case of any such Note Guarantor, and
(b) in the event that at any time any such
Indebtedness ceases to be held by the Company or a Restricted
Subsidiary, such Indebtedness shall be deemed to be Incurred
and not permitted by this clause (6) at the time such event
occurs;
(7) Indebtedness of the Company or any of its Restricted
Subsidiaries arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently
(including in the case of daylight overdrafts so long as such
overdrafts are paid in full by close of business on the day such
overdraft was incurred) drawn against insufficient funds in the
ordinary course of business; provided, that such Indebtedness is
extinguished within two Business Days of Incurrence;
(8) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or any Restricted Subsidiary, as the case may be, in order to
provide security for workers'
24
compensation claims, payment obligations in connection with
self-insurance or similar requirements in the ordinary course of
business;
(9) Refinancing Indebtedness in respect of:
(a) Indebtedness (other than Indebtedness owed
to the Company or any Subsidiary) Incurred pursuant to Section
3.9(a) (it being understood that no Indebtedness outstanding
on the Issue Date is Incurred pursuant to such Section
3.9(a)), or
(b) Indebtedness Incurred pursuant to clause (1)
or (4) of this definition;
(10) Indebtedness of the Company or any Restricted
Subsidiary in respect of any Limited Recourse Receivables Transaction,
so long as the aggregate Indebtedness reflected on the balance sheet of
the Company and its Restricted Subsidiaries in respect of all
Indebtedness Incurred under this clause (10) does not exceed $100
million at any time;
(11) Guarantees of, or other contingent liabilities
relating to, loans or other obligations Incurred by customers of the
Company and its Restricted Subsidiaries to finance the purchase of
inventory or services from the Company and its Restricted Subsidiaries;
provided that the amount of such loans or other obligations does not
exceed in the aggregate at any one time outstanding (including as
outstanding amounts paid by the Company or any of its Restricted
Subsidiaries in respect of such loans or other obligations that are not
subsequently reimbursed to the Company or any of its Restricted
Subsidiaries unless the Company and its consolidated Subsidiaries could
Incur $1.00 of additional Indebtedness pursuant to Section 3.9(a) at
the time of such payment) $100 million (including such loans or other
obligations outstanding on the Issue Date);
(12) Indebtedness of the Company or any Restricted
Subsidiary in an aggregate principal amount not to exceed $25 million
at any one time outstanding (which amount may, but need not, be
Incurred in whole or in part under the Bank Credit Facilities).
"Permitted Investment" means:
(1) Investments by the Company or any Restricted
Subsidiary in any Person that is, or that result in any Person
becoming, immediately after such Investment, a Restricted Subsidiary or
constituting a merger or consolidation of such Person into the Company
or with or into a Restricted Subsidiary, except for a Guarantee of
Indebtedness of a Restricted Subsidiary that is not a Note Guarantor;
(2) Investments by any Restricted Subsidiary in the
Company;
(3) Investments in cash and Cash Equivalents;
25
(4) any extension, modification or renewal of any
Investments existing as of the Issue Date (but not Investments
involving additional advances, contributions or other investments of
cash or property or other increases thereof, other than as a result of
the accrual or accretion of interest or original issue discount or
payment-in-kind pursuant to the terms of such Investment as of the
Issue Date);
(5) Investments permitted pursuant to Section 3.17(b)(2)
or (5);
(6) Investments received as a result of the bankruptcy or
reorganization of any Person or taken in settlement of or other
resolution of claims or disputes, and, in each case, extensions,
modifications and renewals thereof;
(7) Investments made by the Company or its Restricted
Subsidiaries (a) in the form of non-cash consideration permitted to be
received in connection with an Asset Sale made in compliance with the
covenant described in Section 3.11 or (b) in a Receivables Subsidiary
in connection with a Receivables Transaction so long as (i) any such
Investment is made substantially concurrently with a disposition of the
Receivables Assets in such Receivables Transaction and (ii) the Company
and its Restricted Subsidiaries receive cash consideration for such
disposition at the time thereof such that the total Investment of the
Company and its Restricted Subsidiaries in such Receivables Subsidiary
in connection with such Receivables Transaction after receipt of such
cash consideration does not exceed 25% of the Fair Market Value of such
Receivables Assets;
(8) Investments made solely in the form of common equity
of the Company constituting Qualified Capital Stock;
(9) Guarantees or other contingent obligations which are
Incurred under clause (11) of the definition of "Permitted
Indebtedness"; and
(10) other Investments not to exceed $15 million at any
one time outstanding.
"Permitted Liens" means any of the following:
(1) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law (including Liens for taxes, assessments and other
governmental charges) incurred in the ordinary course of business for
sums not yet delinquent or as to which the period of grace, if any,
related thereto has not expired or being contested in good faith, if
such reserve or other appropriate provision, if any, as shall be
required by GAAP shall have been made in respect thereof;
(2) Liens Incurred or deposits or pledges made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security or similar
legislation or obligations under
26
customer servicer contracts, including any Lien securing letters of
credit issued in the ordinary course of business consistent with past
practice in connection therewith, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed
money);
(3) Liens securing a Capitalized Lease Obligation;
provided, that such Liens do not extend to any property which is not
leased property subject to such Capitalized Lease Obligation and
property related thereto;
(4) purchase money Liens securing Purchase Money
Indebtedness Incurred to finance the acquisition of property of the
Company or a Restricted Subsidiary used in a Permitted Business;
provided, that:
(a) the related Purchase Money Indebtedness
shall not exceed the cost of such property and shall not be
secured by any property of the Company or any Restricted
Subsidiary other than the property so acquired, and
(b) the Lien securing such Indebtedness shall be
created within 90 days of such acquisition;
(5) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person's obligations in
respect of bankers' acceptances issued or created for the account of
such Person to facilitate the purchase, shipment or storage of such
inventory or other goods;
(6) Liens securing reimbursement obligations with respect
to commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds
thereof;
(7) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual, or warranty
requirements of the Company or a Restricted Subsidiary, including
rights of offset and set-off;
(8) Liens existing on the Issue Date and Liens to secure
any Refinancing Indebtedness which is Incurred to Refinance any
Indebtedness which has been secured by a Lien permitted under Section
3.15 and which Indebtedness has been Incurred in accordance with
Section 3.9; provided, that such new Liens:
(a) are not materially less favorable to the
Holders of Notes and are not materially more favorable to the
lienholders with respect to such Liens than the Liens in
respect of the Indebtedness being Refinanced, and
27
(b) do not extend to any property or assets
other than the property or assets securing the Indebtedness
Refinanced by such Refinancing Indebtedness;
(9) Liens securing Acquired Indebtedness Incurred in
accordance with Section 3.9 not Incurred in connection with, or in
anticipation or contemplation of, the relevant acquisition, merger or
consolidation; provided, that:
(a) such Liens secured such Acquired
Indebtedness at the time of and prior to the Incurrence of
such Acquired Indebtedness by the Company or a Restricted
Subsidiary and were not granted in connection with, or in
anticipation of the Incurrence of such Acquired Indebtedness
by the Company or a Restricted Subsidiary,
(b) such Liens do not extend to or cover any
property of the Company or any Restricted Subsidiary other
than the property that secured the Acquired Indebtedness prior
to the time such Indebtedness became Acquired Indebtedness of
the Company or a Restricted Subsidiary and are no more
favorable to the lienholders than the Liens securing the
Acquired Indebtedness prior to the Incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary;
(10) Liens on Receivables Assets or Capital Stock of a
Receivables Subsidiary, in each case granted in connection with a
Receivables Transaction;
(11) Any interest of a lessor in property subject to any
operating lease; and
(12) Liens securing Indebtedness Incurred pursuant to
clause (3) of the definition of "Permitted Indebtedness".
"Person" means an individual, partnership, corporation,
company, limited liability company, unincorporated organization, trust or joint
venture, or a governmental agency or political subdivision thereof.
"Post-Petition Interest" means all interest accrued or
accruing after the commencement of any insolvency or liquidation proceeding (and
interest that would accrue but for the commencement of any insolvency or
liquidation proceeding) in accordance with and at the contract rate (including
any rate applicable upon default) specified in the agreement or instrument
creating, evidencing or governing any Indebtedness, whether or not, pursuant to
applicable law or otherwise, the claim for such interest is allowed as a claim
in such insolvency or liquidation proceeding.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights over any other Capital Stock of such
Person with respect to dividends, distributions or redemptions or upon
liquidation.
28
"Private Exchange Securities" shall have the meaning assigned
to it in the Appendix hereto.
"Purchase Money Indebtedness" means Indebtedness of the
Company or any Restricted Subsidiary Incurred for the purpose of financing all
or any part of the purchase price, or other cost of construction or improvement
of any property; provided, that the aggregate principal amount of such
Indebtedness does not exceed the lesser of the Fair Market Value of such
property or such purchase price or cost, including any Refinancing of such
Indebtedness that does not increase the aggregate principal amount (or accreted
amount, if less) thereof as of the date of Refinancing.
"QIB" means any "qualified institutional buyer" (as defined in
Rule 144A).
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock and any warrants, rights or options to purchase or
acquire Capital Stock that is not Disqualified Capital Stock that are not
convertible into or exchangeable into Disqualified Capital Stock.
"Qualified Receivables Transaction" means any transaction or
series of transactions that may be entered into by the Company or any Restricted
Subsidiary pursuant to which the Company or any Restricted Subsidiary may sell,
convey, assign or otherwise transfer to a Receivables Entity any Receivables
Assets:
(1) for which no term of any portion of the Indebtedness
or any other obligations (contingent or otherwise) or securities
Incurred or issued by any Person in connection therewith:
(a) directly or indirectly provides for recourse
to, or any obligation of, the Company or any Restricted
Subsidiary in any way, whether pursuant to a Guarantee or
otherwise, except for Standard Undertakings,
(b) directly or indirectly subjects any property
or asset of the Company or any Restricted Subsidiary (other
than Capital Stock of a Receivables Subsidiary) to the
satisfaction thereof, except for Standard Undertakings, or
(c) results in such Indebtedness, other
obligations or securities constituting Indebtedness of the
Company or a Restricted Subsidiary, including following a
default thereunder,
(2) for which the terms of any Affiliate Transaction
between the Company or any Restricted Subsidiary, on the one hand, and
any Receivables Entity, on the other, other than Standard Undertakings
and Permitted Investments, are no less favorable than those that could
reasonably be expected to be obtained in a comparable transaction at
such time on an arm's length basis from a Person that is not an
Affiliate of the Company,
29
(3) in connection with which, neither the Company nor any
Restricted Subsidiary has any obligation to maintain or preserve a
Receivables Entity's financial condition, cause a Receivables Entity to
achieve certain levels of operating results, fund losses of a
Receivables Entity or except in connection with Standard Undertakings,
purchase assets of a Receivables Entity.
"Receivables Assets" means (i) accounts receivable, leases,
conditional sale agreements instruments, chattel paper, installment sale
contracts, obligations, general intangibles, and other similar assets, in each
case relating to inventory or services of the Company and its Subsidiaries, (ii)
equipment and equipment residuals relating to any of the foregoing, (iii)
related contractual rights, guarantees, letters of credit, security interests,
liens, insurance proceeds, collections and other related assets and (iv)
proceeds of all of the foregoing.
"Receivables Entity" means a Receivables Subsidiary or any
Person not an Affiliate of the Company that engages in a Receivables Transaction
or issues securities or other interests in connection with a Receivables
Transaction.
"Receivables Subsidiary" means an Unrestricted Subsidiary of
the Company that engages in no activities other than Receivables Transactions
and activities related thereto and that is designated by the Board of Directors
of the Company as a Receivables Subsidiary. Any such designation by the Board of
Directors shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officer's Certificate.
"Receivables Transaction" means a Limited Recourse Receivables
Transaction or a Qualified Receivables Transaction.
"Record Date" has the meaning assigned to it in the Form of
Face of Note contained in Exhibit 1 to the Appendix.
"Refinance" means, in respect of any security or Indebtedness,
to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire,
or to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the
Company or any Restricted Subsidiary, to the extent that such Refinancing does
not:
(1) result in an increase in the Indebtedness of such
Person which exceeds an amount equal to the aggregate principal amount
of the Indebtedness of such Person as of the date of such proposed
Refinancing (plus the amount of any premium required to be paid under
the terms of the instrument governing such Indebtedness and plus the
amount of reasonable expenses incurred by the Company in connection
with such Refinancing); or
(2) create Indebtedness with:
30
(a) a Weighted Average Life to Maturity that is
less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced or
(b) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced; provided, that:
(i) if such Indebtedness being
Refinanced is Indebtedness of the Company,
then such Refinancing Indebtedness shall be
Indebtedness of the Company,
(ii) if such Indebtedness being
Refinanced is Indebtedness of a Note
Guarantor, then such Indebtedness shall be
Indebtedness of the Company and/or such Note
Guarantor, and
(iii) if such Indebtedness being
Refinanced is Subordinated Indebtedness,
then such Refinancing Indebtedness shall be
subordinate to the Notes or the relevant
Note Guarantee, if applicable, at least to
the same extent and in the same manner as
the Indebtedness being Refinanced.
"Registrar" has the meaning assigned to it in Section 2.3(a).
"Registration Rights Agreement" means any registration rights
agreement between the Company, the Note Guarantors and one or more investment
banks acting as initial purchasers in connection with any issuance of Notes
under this Indenture, including the Issue Date Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act or
any successor regulation.
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Payment" has the meaning set forth in Section
3.10.
"Restricted Subsidiary" means any Subsidiary of the Company
which at the time of determination is not an Unrestricted Subsidiary.
"Revocation" has the meaning set forth in Section 3.13.
31
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party providing for
the leasing to the Company or a Restricted Subsidiary of any property, whether
owned by the Company or any Restricted Subsidiary at the Issue Date or later
acquired, which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person by whom funds have
been or are to be advanced on the security of such Property.
"SEC" means the Securities and Exchange Commission, or any
successor agency thereto with respect to the regulation or registration of
securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means, at any date, with respect to the
Company, any Note Guarantor or, for purposes of Section 3.9(a)(ii) and the
definition of "Consolidated Senior Debt Ratio", any Restricted Subsidiary, as
the case may be:
(1) all Obligations of the Company, such Note Guarantor
or such Restricted Subsidiary, as the case may be, under the Bank
Credit Facilities, including all Hedging Obligations with respect
thereto;
(2) all Obligations in respect of Indebtedness of the
Company, such Note Guarantor or such Restricted Subsidiary, as the case
may be, for borrowed money (including the Notes and the Note Guarantees
and Obligations in respect of Sale and Leaseback Transactions and
Capitalized Lease Obligations) and all Indebtedness (whether or not for
borrowed money) specified in clause (9) of the definition of
"Indebtedness"; and
(3) all Obligations pursuant to Standard Undertakings
unless, in the case of clauses (1), (2) and (3), in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such Indebtedness or other Obligations are subordinate in right of payment
to the Notes or the Note Guarantee of such Note Guarantor, as the case may be.
Notwithstanding the preceding, Senior Indebtedness shall not include any
liability or Obligation of the Company, such Note Guarantor or such Restricted
Subsidiary, as the case may be, in respect of the following:
(1) U.S. federal, state, local, non-U.S. or other taxes;
(2) any Indebtedness among or between the Company and any
Subsidiary or Affiliate of the Company;
(3) any trade payables;
(4) that portion of any Indebtedness that is Incurred in
violation of the Indenture;
32
(5) any Disqualified Capital Stock;
(6) any Indebtedness that, when Incurred and without
respect to any election under Section 1111(b) of Title 11, United
States Code, is without recourse to the Company, such Note Guarantor or
such Restricted Subsidiary, as the case may be; or
(7) any Indebtedness or other Obligation that is
subordinate or junior in right of payment to any other Indebtedness or
other Obligation of the Company or such Note Guarantor, as the case may
be.
Notwithstanding anything to the contrary herein, for purposes of Section
3.9(a)(ii) and as used in the definition of "Consolidated Senior Debt Ratio",
the term "Senior Indebtedness shall exclude all Indebtedness (whether or not for
borrowed money) specified in clause (9) of the definition of "Indebtedness" and
all Obligations pursuant to Standard Undertakings.
"Significant Subsidiary" shall mean a Subsidiary of the
Company constituting a "Significant Subsidiary" in accordance with Rule 1-02(w)
of Regulation S-X under the Securities Act in effect on the date hereof, except
that all references to 10% in Rule 1-02(w) are replaced with 5%.
"Special Record Date" has the meaning assigned to it in
Section 2.10(a).
"Standard Undertakings" means representations, warranties,
covenants and indemnities and similar obligations entered into by the Company or
any Subsidiary of the Company in connection with a Receivables Transaction and
which, in the case of a Qualified Receivables Transaction, are customary in
similar receivables securitization transactions and do not cause the
Indebtedness Incurred in connection therewith to constitute Indebtedness of the
Company or any Restricted Subsidiary, including following a default thereunder.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Indebtedness" means, with respect to the Company
or any Note Guarantor, any Indebtedness of the Company or such Note Guarantor,
as the case may be which is expressly subordinated in right of payment to the
Notes or the relevant Note Guarantee, as the case may be, which shall include
the 8-3/8% Notes and any other Indebtedness that ranks pari passu with the
8-3/8% Notes.
"Subsidiary," with respect to any Person, means any other
Person of which such Person owns, directly or indirectly, more than 50% of the
voting power of the other Person's outstanding Voting Stock.
33
"Successor Entity" has the meaning assigned to it in Section
4.1.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended, as in effect on the date of this Indenture (except as
otherwise provided in this Indenture).
"Trustee" means the party named as such in the introductory
paragraph of this Indenture until a successor replaces it in accordance with the
terms of this Indenture and, thereafter, means the successor.
"U.S. Government Obligations" means (i) securities that are
(a) direct obligations of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or (b)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof; and (ii) depositary receipts issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect to
any U.S. Government Obligation which is specified in clause (i) above and held
by such bank for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal or interest of the U.S. Government Obligation evidenced by such
depositary receipt.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"Unrestricted Subsidiary" means Fulton Funding Corporation,
each Receivables Subsidiary and any Subsidiary of the Company Designated as such
pursuant to Section 3.13. Any such Designation may be revoked by a Board
Resolution of the Company, subject to the provisions of such covenant.
"Voting Stock" with respect to any Person, means securities of
any class of Capital Stock of such Person entitling the holders thereof (whether
at all times or only so long as no senior class of stock has voting power by
reason of any contingency) to vote in the election of members of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years (calculated to the nearest
one-twelfth) obtained by dividing:
(1) the then outstanding aggregate principal amount or
liquidation preference, as the case may be, of such Indebtedness into
34
(2) the sum of the products obtained by multiplying:
(a) the amount of each then remaining
installment, sinking fund, serial maturity or other required
payment of principal or liquidation preference, as the case
may be, including payment at final maturity, in respect
thereof, by
(b) the number of years (calculated to the
nearest one-twelfth) which will elapse between such date and
the making of such payment.
"Wholly Owned Restricted Subsidiary" of the Company means any
Restricted Subsidiary of which all the outstanding Capital Stock (other than, in
the case of a Restricted Subsidiary not organized in the United States,
directors' qualifying shares or an immaterial amount of shares required to be
owned by other Persons pursuant to applicable law) are owned by the Company or
any other Person that satisfies this definition of Wholly Owned Restricted
Subsidiary.
Section 1.2. Incorporation by Reference of Trust Indenture
Act. If any provision of this Indenture limits, qualifies or conflicts with the
duties that would be imposed by any of Sections 310 to 317 of the TIA through
operation of Section 318(c) thereof on any person if this Indenture were
qualified under the TIA, such imposed duties shall control.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined in the TIA by reference to another statute or defined by Rules
or Regulations of the SEC Rule have the meanings assigned to them by such
definitions.
Section 1.3. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "premium" means "premium, if any";
(4) "or" is not exclusive;
(5) "include", "includes", "including" means "include,
without limitation", "includes, without limitation", and "including,
without limitation";
(6) "will" means and has the same effect as the word
"shall";
35
(7) words in the singular include the plural and words in
the plural include the singular; and
(8) references to the payment of principal of the Notes
shall include applicable premium, if any; and
(9) whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms.
ARTICLE II
THE NOTES
Section 2.1. Form and Dating. Provisions relating to the
Initial Notes, the Private Exchange Securities 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 part of this Indenture. The
Initial Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit 1 to the Appendix which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange Notes,
the Private Exchange Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, which is hereby incorporated in
and expressly made a part of this Indenture. The Notes may have notations,
legends or endorsements as specified in the Appendix or as otherwise required by
law, stock exchange rule, DTC rule, any agreements to which the Company is
subject or usage (provided that any such notation, legend or endorsement is in a
form acceptable to the Company and the Trustee). Each Note shall be dated the
date of its authentication. The terms of the Notes set forth in the Appendix and
Exhibit A are part of the terms of this Indenture. Except as otherwise expressly
permitted in this Indenture, all Notes shall be indentical in all respects.
Notwithstanding any differences among them, all Notes issued under this
Indenture shall vote and consent together on all matters as one class.
Section 2.2. Execution and Authentication.
(a) Two Officers, one of whom shall be the Chairman of
the Board, the President, the Chief Executive Officer or the Chief Financial
Officer of the Company, shall sign the Notes for the Company by manual or
facsimile signature. If an Officer whose signature is on a Note no longer holds
that office at the time the Trustee authenticates the Note, the Note shall be
valid nevertheless.
(b) A Note shall not be valid until an authorized
signatory of the Trustee manually authenticates the Note. The signature of the
Trustee on a Note shall be conclusive evidence that such Note has been duly and
validly authenticated and delivered under this Indenture.
(c) On the Issue Date, the Trustee shall authenticate and
deliver $125 million aggregate principal amount of 8-1/4% Senior Notes Due 2008
and, 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 such order, in each case upon
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a written order of the Company signed by two Officers or by an Officer and
either an Assistant Treasurer or an Assistant Secretary of the Company (the
"Company Order"). A Company Order shall specify the amount of the Notes to be
authenticated and the date on which the original issue of Notes is to be
authenticated and, in the case of an issuance of Additional Notes pursuant to
Section 2.12 after the Issue Date, shall certify that such issuance is in
compliance with Section 3.9. The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is limited to $225,000,000.
(d) The Trustee may appoint an agent (the "Authenticating
Agent") reasonably acceptable to the Company to authenticate the Notes. Unless
limited by the terms of such appointment, any such Authenticating Agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by the
Authentication Agent. An Authenticating Agent has the same rights as any
Registrar, Paying Agent or agent for service of notices.
(e) In case a Successor Entity has executed an indenture
supplemental hereto with the Trustee pursuant to Article IV, any of the Notes
authenticated or delivered prior to such transaction may, from time to time, at
the request of the Successor Entity, be exchanged for other Notes executed in
the name of the Successor Entity with such changes in phraseology and form as
may be appropriate, but otherwise identical to the Notes surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Order of
the Successor Entity, shall authenticate and deliver Notes as specified in such
order for the purpose of such exchange. If Notes shall at any time be
authenticated and delivered in any new name of a Successor Entity pursuant to
this Section 2.2 in exchange or substitution for or upon registration of
transfer of any Notes, such Successor Entity, at the option of the Holders but
without expense to them, shall provide for the exchange of all Notes at the time
Outstanding for Notes authenticated and delivered in such new name.
Section 2.3. Registrar and Paying Agent. (a) The Company
shall maintain an office or agency in the Borough of Manhattan, City of New
York, where Notes may be presented for registration of transfer or for exchange
(the "Registrar"), where Notes may be presented or surrendered for payment (the
"Paying Agent") and for the service of notices and demands to or upon the
Company in respect of the Notes and this Indenture. The Registrar shall keep a
register of the Notes and of their transfer and exchange (the "Note Register").
The Company may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
(b) The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-Registrar not a party to this
Indenture, which shall incorporate the terms of the TIA. The agreement shall
implement the provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of each such agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor pursuant to
Section 6.7. The Company or any Note Guarantor may act as Paying Agent,
Registrar, co-Registrar or transfer agent.
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(c) The Company initially appoints the Trustee at its
Corporate Trust Office as Registrar, Paying Agent and agent for service of
demands and notices in connection with the Notes and this Indenture, until such
time as another Person is appointed as such.
Section 2.4. Paying Agent To Hold Money in Trust. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that such Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by such Paying Agent for the payment of principal of,
or interest on, the Notes and shall notify the Trustee in writing of any Default
by the Company or any Note Guarantor in making any such payment. If the Company
or any Note Guarantor or an Affiliate of the Company or any Note Guarantor acts
as Paying Agent, it shall segregate the money held by it as Paying Agent and
hold it as a separate trust fund. The Company at any time may require a Paying
Agent (other than the Trustee) to pay all money held by it to the Trustee and to
account for any funds disbursed by such Paying Agent. Upon complying with this
Section 2.4, the Paying Agent (if other than the Company or a Note Guarantor)
shall have no further liability for the money delivered to the Trustee. Upon any
proceeding under any Bankruptcy Law with respect to the Company or any Note
Guarantor or any Affiliate of the Company or any Note Guarantor, if the Company,
a Note Guarantor or such Affiliate is then acting as Paying Agent, the Trustee
shall replace the Company, such Note Guarantor or such Affiliate as Paying
Agent.
Section 2.5. Holder Lists. The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Holders. If the Trustee is not the Registrar,
or to the extent otherwise required under the TIA, the Company shall furnish to
the Trustee, in writing at least seven Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Holders.
Section 2.6. Transfer and Exchange. The Notes shall be
issued in registered form and shall be transferable only upon the surrender of a
Note for registration of transfer. When a Note is presented to the Registrar or
a co-Registrar with a request to register a transfer, the Registrar shall
register the transfer as requested if the requirements of this Indenture and
Section 8-401(a) of the Uniform Commercial Code are met. When Notes are
presented to the Registrar or a co-registrar with a request to exchange them for
an equal principal amount of Notes of other denominations, the Registrar shall
make the exchange as requested if the same requirements are met.
Section 2.7. Mutilated, Destroyed, Lost or Stolen Notes.
(a) If a mutilated Note is surrendered to the Registrar or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall execute and upon Company Order the Trustee shall authenticate a
replacement Note if the requirements of Section 8-405 of the Uniform Commercial
Code are met and the Holder satisfies any other reasonable requirements of the
Trustee. If required by the Trustee or the Company, such Holder shall furnish an
affidavit of loss and indemnity bond sufficient in the judgment of the Company
and the Trustee to protect the Company, the Trustee, the
38
Paying Agent, the Registrar and any co-Registrar from any loss that any of them
may suffer if a Note is replaced, and, in the absence of notice to the Company
or the Trustee that such Note has been acquired by a protected purchaser, the
Company shall execute and upon Company Order the Trustee shall authenticate and
make available for delivery, in exchange for any such mutilated Note or in lieu
of any such destroyed, lost or stolen Note, a new Note of like tenor and
principal amount, bearing a number not contemporaneously Outstanding.
(b) Upon the issuance of any new Note under this Section
2.7, the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
(c) Every new Note issued pursuant to this Section 2.7 in
exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen
Note, shall constitute an original additional contractual obligation of the
Company, any Note Guarantor and any other obligor upon the Notes, whether or not
the mutilated, destroyed, lost or stolen Note shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
Section 2.8. Temporary Notes. Until definitive Notes are
ready for delivery, the Company may execute and upon Company Order the Trustee
will authenticate temporary Notes. Temporary Notes will be substantially in the
form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company will
prepare and execute and upon Company Order the Trustee will authenticate
definitive Notes and deliver them in exchange for temporary Notes. Until so
exchanged, the Holder of temporary Notes shall in all respects be entitled to
the same benefits under this Indenture as a Holder of definitive Notes.
Section 2.9. Cancellation. The Company at any time may
deliver Notes to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel and dispose of cancelled Notes in accordance with its policy of disposal
or return to the Company all Notes surrendered for registration of transfer,
exchange, payment or cancellation. The Company may not issue new Notes to
replace Notes it has paid or delivered to the Trustee for cancellation for any
reason other than in connection with a transfer or exchange upon Company Order.
Section 2.10. Defaulted Interest. When any installment of
interest becomes Defaulted Interest, such installment shall forthwith cease to
be payable to the Holders in whose names the Notes were registered on the Record
Date applicable to such installment of interest. Defaulted Interest (including
any interest on such Defaulted Interest) may be paid by the Company, at its
election, as provided in clause (a) or (b) below:
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(a) The Company may elect to make payment of any
Defaulted Interest (including any interest on such Defaulted Interest) to the
Holders in whose names the Notes are registered at the close of business on a
special record date for the payment of such Defaulted Interest (a "Special
Record Date"), which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be
paid and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Holders entitled to such Defaulted Interest as provided in this
clause (a). Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest, which shall be not more than 15 calendar
days and not less than ten calendar days prior to the date of the proposed
payment and not less than ten calendar days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be sent, first-class mail, postage
prepaid, to each Holder at such Holder's address as it appears in the
registration books of the Registrar, not less than ten calendar days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Holders in whose names the Notes
are registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (b).
(b) Alternatively, the Company may make payment of any
Defaulted Interest (including any interest on such Defaulted Interest) in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause (b), such manner of payment
shall be deemed practicable by the Trustee.
Section 2.11. CUSIP and ISIN Numbers. The Company in
issuing the Notes may use "CUSIP" or "ISIN" numbers as a convenience to Holders.
Section 2.12. Additional Notes. The Company may, from time
to time, subject to compliance with any other applicable provisions of this
Indenture, without the consent of the Holders, create and issue pursuant to this
Indenture additional notes ("Additional Notes") having terms and conditions set
forth in Exhibit 1 to the Appendix and Exhibit A identical to those of the other
Outstanding Notes, except that Additional Notes:
(1) may have a different issue date from other
Outstanding Notes;
(2) may have a different amount of interest payable on
the first Interest Payment Date after issuance than is payable on other
Outstanding Notes;
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(3) may have terms specified in the Additional Note Board
Resolution or Additional Note Supplemental Indenture for such
Additional Notes making appropriate adjustments to this Article II and
the Appendix (and related definitions) applicable to such Additional
Notes in order to conform to and ensure compliance with the Securities
Act (or other applicable securities laws) and any registration rights
or similar agreement applicable to such Additional Notes, which are not
adverse in any material respect to the Holder of any Outstanding Notes
(other than such Additional Notes), provided, that no such adjustment
shall cause such Additional Notes to constitute, as determined pursuant
to an Opinion of Counsel, a different class of securities than the
Issue Date Notes for U.S. federal income tax purposes except for
Additional Notes that have a separate CUSIP number from other
Outstanding Notes pending performance under a Registration Rights
Agreement applicable thereto; and
(4) may be entitled to additional interest as provided in
Section 2.13 not applicable to other Outstanding Notes and may not be
entitled to such additional interest applicable to other Outstanding
Notes.
Section 2.13. Additional Interest Under Registration
Rights Agreements. Under certain circumstances, the Company may be obligated to
pay additional interest to Holders, all as and to the extent set forth in the
Issue Date Registration Rights Agreement or any Registration Rights Agreement
applicable to Additional Notes. The terms thereof are hereby incorporated herein
by reference. All references in the Indenture, in any context, to any interest
or other amount payable on or with respect to the Notes or any Additional Notes
shall be deemed to include any additional interest payable under the Issue Date
Registration Rights Agreement or any Registration Rights Agreement applicable to
Additional Notes, respectively.
Section 2.14. No Redemption Prior to the Maturity Date.
The Company shall not be entitled to redeem the Notes prior to the Maturity
Date.
ARTICLE III
COVENANTS
Section 3.1. Payment of Notes.
(a) The Company shall pay the principal of and interest
(including Defaulted Interest) on the Notes in U.S. Legal Tender on the dates
and in the manner provided in the Notes and in this Indenture. Subject to the
provisions of Section 2.10, prior to 10:00 a.m. New York City time on each
Interest Payment Date and the Maturity Date, the Company shall deposit with the
Paying Agent in immediately available funds U.S. Legal Tender sufficient to make
cash payments due on such Interest Payment Date or Maturity Date, as the case
may be. If the Company, a Note Guarantor or an Affiliate of the Company or a
Note Guarantor is acting as Paying Agent, the Company, such Note Guarantor or
such Affiliate shall, prior to 10:00 a.m. New York City time on each Interest
Payment Date and the Maturity Date, segregate and hold in trust U.S. Legal
Tender
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sufficient to make cash payments due on such Interest Payment Date or Maturity
Date, as the case may be. Principal and interest shall be considered paid on the
date due if on such date the Trustee or the Paying Agent (other than the
Company, a Note Guarantor or an Affiliate of the Company or a Note Guarantor)
holds in accordance with this Indenture U.S. Legal Tender designated for and
sufficient to pay all principal and interest then due and the Trustee or the
Paying Agent, as the case may be, is not prohibited from paying such money to
the Holders on that date pursuant to the terms of this Indenture.
(b) Notwithstanding anything to the contrary contained in
this Indenture, the Company may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
Section 3.2. Maintenance of Office or Agency.
(a) The Company shall maintain each office or agency
required under Section 2.3. The Company will give prompt written notice to the
Trustee of any change in the location of any such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one
or more other offices or agencies (in or outside of The City of New York) where
the Notes may be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such other
office or agency.
Section 3.3. Corporate Existence. Subject to Article IV,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.
Section 3.4. Payment of Taxes and Other Claims. The
Company will pay or discharge or cause to be paid or discharged, before the same
shall become delinquent, (i) all material taxes, assessments and governmental
charges levied or imposed upon the Company or any Restricted Subsidiary or for
which it or any of them are otherwise liable, or upon the income, profits or
property of the Company or any Restricted Subsidiary and (ii) all lawful claims
for labor, materials and supplies, which, if unpaid, might by law become a
liability or Lien upon the property of the Company or any Restricted Subsidiary;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which appropriate reserves, if necessary (in the
good faith judgment
42
of management of the Company), are being maintained in accordance with GAAP or
where the failure to effect such payment will not be disadvantageous to the
Holders.
Section 3.5. Compliance Certificate. (a) The Company and
each Note Guarantor shall deliver to the Trustee within 105 days after the end
of each fiscal year of the Company an Officers' Certificate, one of the signers
of which is the chief executive, chief financial or chief accounting officer of
the Company, that complies with TIA Section 314(a)(4), stating that in the
course of the performance by the signers of their duties as Officers of the
Company or the Note Guarantor they would normally have knowledge of any Default
or Event of Default and whether or not the signers know of any Default or Event
of Default that occurred during such period. If they do, the certificate shall
describe the Default or Event of Default, its status and what action the
Company or such Note Guarantor is taking or proposes to take with respect
thereto.
(b) So long as not contrary to the then current generally
applicable recommendations of the American Institute of Certified Public
Accountants (or any successor organization) or to the generally applicable
policies of the Company's independent accountants, the annual Officers'
Certificate delivered pursuant to this Section 3.5 to the Trustee shall be
accompanied by a written report of the Company's independent accountants (who
shall be a firm of established national reputation) that in conducting their
audit of the financial statements of the Company for the most recent fiscal year
nothing has come to their attention that would lead them to believe that a
Default or Event of Default under this Indenture has occurred insofar as they
relate to accounting matters or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation that would not be disclosed in
the course of an audit examination conducted in accordance with GAAP.
Section 3.6. Further Instruments and Acts. The Company
and each Note Guarantor will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper or as the Trustee may
reasonably request to carry out more effectively the purpose of this Indenture.
Section 3.7. Waiver of Stay, Extension or Usury Laws. The
Company and each Note Guarantor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company or such Note
Guarantor from paying all or any portion of the principal of or interest on the
Notes as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Indenture.
The Company and each Note Guarantor hereby expressly waives (to the extent that
it may lawfully do so) all benefit or advantage of any such law, and covenants
(to the extent that it may lawfully do so) that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
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Section 3.8. Change of Control.
(a) Upon the occurrence of a Change of Control, each
Holder will have the right to require that the Company purchase all or a portion
(in integral multiples of $1,000) of the Holder's Notes at a purchase price
equal to 101% of the principal amount thereof, plus accrued and unpaid interest
thereon to, but excluding, the date of purchase (the "Change of Control
Payment").
(b) Within 20 days following the date upon which the
Change of Control occurred, the Company must send, by first-class mail, postage
prepaid, a notice to the record Holders as shown on the Note Register, with a
copy to the Trustee, offering to purchase the Notes as described above (a
"Change of Control Offer"). The Change of Control Offer shall state, among other
things, the purchase date, which must be no earlier than 30 days nor later than
60 days from the date the notice is mailed, other than as may be required by law
(the "Change of Control Payment Date").
(c) On the Change of Control Payment Date, the Company
will, to the extent lawful:
(1) accept for payment all Notes or portions thereof
properly tendered and not withdrawn pursuant to the Change of Control
Offer;
(2) deposit with the Paying Agent funds in an amount
equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased
by the Company.
(d) If only a portion of a Note is purchased pursuant to
a Change of Control Offer, a new Note in a principal amount equal to the portion
thereof not purchased will be issued in the name of the Holder thereof upon
cancellation of the original Note (or appropriate adjustments to the amount and
beneficial interests in Global Notes will be made, as appropriate). Notes (or
portions thereof) purchased pursuant to a Change of Control Offer will be
cancelled and cannot be reissued.
(e) Holders will not be entitled to require the Company
to purchase their Notes in the event the Company enters into certain
transactions, including acquisitions, Refinancings or other recapitalizations,
which do not constitute a Change of Control.
(f) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other applicable securities laws and
regulations in connection with the purchase of Notes in connection with a Change
of Control Offer. To the extent that the provisions of any securities laws or
regulations conflict with this Section 3.8, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Indenture by doing so.
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Section 3.9. Limitation on Incurrence of Additional
Indebtedness.
(a) The Company will not, and will not cause or permit
any of its Restricted Subsidiaries to, directly or indirectly, Incur any
Indebtedness, including Acquired Indebtedness, or permit any Restricted
Subsidiary to Incur Preferred Stock, other than Permitted Indebtedness, except
that:
(1) the Company and any Note Guarantor may Incur
Indebtedness, including Acquired Indebtedness, and
(2) any Restricted Subsidiary may Incur Acquired
Indebtedness not Incurred in connection with, or in anticipation or
contemplation of, the relevant acquisition, merger or consolidation,
in each case, if, at the time of and immediately after giving pro forma effect
to the Incurrence thereof and the application of the proceeds therefrom, the (i)
Consolidated Fixed Charge Coverage Ratio of the Company and its consolidated
Subsidiaries is greater than 2.25 to 1.0 and (ii) if the Indebtedness to be
Incurred is Senior Indebtedness, the Consolidated Senior Debt Ratio is less than
3.5 to 1.0.
(b) Notwithstanding Section 3.9(a), the Company and its
Restricted Subsidiaries may Incur Permitted Indebtedness as provided in the
definition thereof.
(c) Notwithstanding the foregoing, neither the Company
nor any Note Guarantor will Incur any Indebtedness pursuant to Section 3.9(b) if
the proceeds thereof are used, directly or indirectly, to Refinance any
Subordinated Indebtedness of the Company or any Note Guarantor unless such
Indebtedness shall be subordinated to the Notes or the applicable Note Guarantee
to at least the same extent as such Subordinated Indebtedness.
(d) For purposes of determining compliance with, and the
outstanding principal amount of, any particular Indebtedness Incurred pursuant
to and in compliance with this covenant, the amount of Indebtedness issued at a
price that is less than the principal amount thereof will be equal to the amount
of the liability in respect thereof determined in accordance with GAAP. Accrual
of interest, accretion of original issue discount, payment of regularly
scheduled interest in the form of additional Indebtedness of the same instrument
or payment of regularly scheduled dividends on Disqualified Stock or Preferred
Stock in the form of additional Disqualified Stock or Preferred Stock of the
same series will not be deemed to be an Incurrence of Indebtedness or Preferred
Stock for purposes of this covenant. For purposes of determining compliance with
this covenant, in the event that an item of Indebtedness meets more than one of
the types of Permitted Indebtedness, the Company, in its sole discretion, shall
classify such item of Indebtedness and only be required to classify the amount
and type of such Indebtedness under one type of Permitted Indebtedness and may
allocate portions of such Indebtedness to more than one type of Permitted
Indebtedness to the extent applicable.
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Section 3.10. Limitation on Restricted Payments.
(a) The Company will not, and will not cause or permit
any of its Restricted Subsidiaries to, directly or indirectly, take any of the
following actions (each, a "Restricted Payment"):
(1) declare or pay any dividend or return of capital or
make any distribution on or in respect of shares of Capital Stock of
the Company or any Restricted Subsidiary to holders of such Capital
Stock, other than:
(i) dividends or distributions payable in Qualified
Capital Stock of the Company,
(ii) dividends or distributions payable to the Company
and/or a Restricted Subsidiary, or
(iii) pro rata dividends or distributions to the Company
and/or a Restricted Subsidiary and minority holders
of Capital Stock of a Restricted Subsidiary;
(2) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Company or any Restricted Subsidiary, or
any direct or indirect parent of the Company, other than Capital Stock
held by the Company or another Restricted Subsidiary;
(3) make any principal payment on, purchase, defease,
redeem, prepay, decrease or otherwise acquire or retire for value,
prior to any scheduled final maturity, scheduled repayment or scheduled
sinking fund payment, as the case may be, any Subordinated Indebtedness
of the Company or any Note Guarantor; or
(4) make any Investment (other than Permitted
Investments);
if at the time of the Restricted Payment immediately after giving effect
thereto:
(A) a Default or an Event of Default shall have occurred and
be continuing;
(B) the Company is not able to Incur at least $1.00 of
additional Indebtedness pursuant to Section 3.9(a); or
(C) the aggregate amount (the amount expended for these
purposes, if other than in cash, being the Fair Market Value of the
relevant property) of the proposed Restricted Payment and Restricted
Payments, including Restricted Payments made pursuant to Section
3.10(b)(1), (4), (5), (6), (7) and (8), made subsequent to the Issue
Date up to the date thereof, less any Investment Return calculated as
of the date thereof, shall exceed the sum of:
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(i) 50% of cumulative Consolidated Net Income or, if
cumulative Consolidated Net Income is a loss, minus
100% of the loss, accrued during the period, treated
as one accounting period, beginning on the first full
fiscal quarter after the Issue Date to the end of the
most recent fiscal quarter ended prior to the date on
which such Restricted Payment is made for which
consolidated financial information of the Company is
available;
plus
(ii) 100% of the aggregate net cash proceeds received by
the Company from any Person from any:
(x) contribution to the equity capital of the Company not
representing an interest in Disqualified Capital Stock or (b)
issuance and sale of Qualified Capital Stock of the Company,
in each case, subsequent to the Issue Date, or
(y) issuance and sale subsequent to the Issue Date (and,
in the case of Indebtedness of a Restricted Subsidiary, at
such time as it was a Restricted Subsidiary) of any
Indebtedness for borrowed money of the Company or any
Restricted Subsidiary that has been converted into or
exchanged for Qualified Capital Stock of the Company,
excluding, in each case, any net cash proceeds:
(1) received from a Subsidiary of the Company,
(2) used to acquire assets or Capital Stock from an
Affiliate of the Company, or
(3) applied in accordance with Section 3.10(b)(2) or (3);
plus
(iii) $15 million (less the amount of Restricted Payments
made pursuant to Section 3.10(b)(8)).
(b) Notwithstanding the preceding Section 3.10(a), this
covenant does not prohibit:
(1) the payment of any dividend within 60 days after the
date of declaration of such dividend if the dividend would have been
permitted pursuant to Section 3.10(a) on the date of declaration;
(2) if no Default or Event of Default shall have occurred
and be continuing, the acquisition of any shares of Capital Stock of
the Company,
47
(i) in exchange for Qualified Capital Stock of the
Company or
(ii) through the application of the net cash proceeds
received by the Company from a substantially
concurrent sale of Qualified Capital Stock of the
Company or a contribution to the equity capital of
the Company not representing an interest in
Disqualified Capital Stock, in each case not received
from a Subsidiary of the Company;
provided, that the value of any such Qualified Capital Stock issued in exchange
for such acquired Capital Stock and any such net cash proceeds shall be excluded
from Section 3.10(a)(C)(ii); and
(3) if no Default or Event of Default shall have occurred
and be continuing, the voluntary prepayment, purchase, defeasance,
redemption or other acquisition or retirement for value of any
Subordinated Indebtedness solely in exchange for, or through the
application of net cash proceeds of a substantially concurrent sale,
other than to a Subsidiary of the Company, of:
(i) Qualified Capital Stock of the Company or
(ii) Refinancing Indebtedness of such Person which is
Incurred in accordance with Section 3.9 for such
Subordinated Indebtedness;
provided, that the value of any Qualified Capital Stock issued in exchange for
Subordinated Indebtedness and any net cash proceeds referred to above shall be
excluded from Section 3.10(a)(C)(ii);
(4) if no Default or Event of Default shall have occurred
and be continuing, repurchases by the Company of Common Stock of the
Company or options, warrants or other securities exercisable or
convertible into Common Stock of the Company from employees or
directors of the Company or any of its Subsidiaries or their authorized
representatives upon the death, disability or termination of employment
or directorship of the employees or directors, in an amount not to
exceed $2.5 million in the aggregate (excluding any amount reimbursed
to the Company pursuant to insurance policies or other third party
payments);
(5) if no Default or Event of Default shall have occurred
and be continuing, the voluntary purchase or other acquisition for
value by the Company of any of its 8-3/8% Notes; provided that the
aggregate amount of all Restricted Payments made pursuant to this
clause (5) will not exceed $35 million;
(6) if no Default or Event of Default shall have occurred
and be continuing (or would result therefrom), upon the occurrence of a
Change of Control and within 60 days after the completion of a Change
of Control Offer pursuant to the covenant described under Section 3.8
(including the purchase of the Notes tendered), any purchase or
redemption of Subordinated Indebtedness of
48
the Company or any Restricted Subsidiary required pursuant to the terms
thereof as a result of such Change of Control at a purchase or
redemption price not to exceed 101% of the outstanding principal amount
thereof, plus accrued and unpaid interest (if any);
(7) if no Default or Event of Default shall have occurred
and be continuing (or would result therefrom), upon the occurrence of
an Asset Sale and within 60 days after the completion of an Asset Sale
Offer to repurchase the Notes pursuant to the covenant described under
Section 3.11 (including the purchase of the Notes tendered), any
purchase or redemption of Subordinated Indebtedness of the Company or
any Restricted Subsidiary required pursuant to the terms thereof as a
result of such Asset Sale at a purchase or redemption price not to
exceed 100% of the outstanding principal amount thereof, plus accrued
and unpaid interest (if any); and
(8) Restricted Payments of up to $200,000 in the
aggregate.
(c) In determining the aggregate amount of Restricted
Payments made subsequent to the Issue Date, amounts expended pursuant to Section
3.10(b)(1) (without duplication for the declaration of the relevant dividend),
(4), (5), (6), (7) and (8) shall be included in such calculation, and amounts
expended pursuant to Section 3.10(b)(2) and (3) shall not be included in such
calculation.
Section 3.11. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary,
as the case may be, receives consideration at the time of the Asset
Sale at least equal to the Fair Market Value of the assets sold or
otherwise disposed of, and
(2) at least 75% of the consideration received for the
assets sold by the Company or the Restricted Subsidiary, as the case
may be, in the Asset Sale shall be in the form of cash or Cash
Equivalents received at the time of such Asset Sale.
(b) The Company or such Restricted Subsidiary, as the
case may be, may apply the Net Cash Proceeds of any such Asset Sale within 365
days thereof to:
(1) repay any Senior Indebtedness of the Company or any
Note Guarantor or Indebtedness of any Restricted Subsidiary that is not
a Note Guarantor, in each case for borrowed money or constituting a
Capitalized Lease Obligation, and permanently reduce the commitments
with respect thereto without Refinancing, or
49
(2) purchase:
(i) assets (other than current assets as determined in
accordance with GAAP) to be used by the Company or
any Restricted Subsidiary in connection with its
ongoing business operations,
(ii) Capital Stock of a Person engaged solely in a
Permitted Business that will become, upon purchase, a
Restricted Subsidiary
from a Person other than the Company and its Restricted Subsidiaries.
(c) To the extent all or a portion of the Net Cash
Proceeds of any Asset Sale are not applied within 365 days of the Asset Sale as
described in Section 3.11(b)(1) or (2), the Company will make an offer to
purchase Notes (the "Asset Sale Offer"), at a purchase price equal to 100% of
the principal amount of the Notes to be purchased, plus accrued and unpaid
interest thereon, to, but excluding, the date of purchase (the "Asset Sale Offer
Amount"). Pursuant to an Asset Sale Offer, the Company shall purchase from all
tendering Holders on a pro rata basis, and, at the Company's option, on a pro
rata basis with the holders of any other Senior Indebtedness with similar
provisions requiring the Company to offer to purchase the other Senior
Indebtedness with the proceeds of Asset Sales, that principal amount (or
accreted value in the case of Indebtedness issued with original issue discount)
of Notes and the other Senior Indebtedness to be purchased equal to such
unapplied Net Cash Proceeds.
(d) The purchase of Notes pursuant to an Asset Sale Offer
shall occur not less than 20 Business Days following the date thereof, or any
longer period as may be required by law, nor more than 45 days following the
365th day following the Asset Sale. The Company may, however, defer an Asset
Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds
from one or more Asset Sales equal to or in excess of $5 million. At that time,
the entire amount of unapplied Net Cash Proceeds, and not just the amount in
excess of $5 million, shall be applied as required pursuant to this covenant.
Pending application in accordance with this covenant, Net Cash Proceeds shall be
applied to temporarily reduce revolving credit borrowings which can be
reborrowed or invested in Cash Equivalents.
(e) Each Asset Sale Offer Notice will be mailed first
class, postage prepaid, to the record Holders as shown on the Note Register
within 20 days following such 365th day, with a copy to the Trustee offering to
purchase the Notes as described in Section 3.11(c). Each notice of an Asset Sale
Offer shall state, among other things, the purchase date, which must be no
earlier than 30 days nor later than 60 days from the date the notice is mailed,
other than as may be required by law (the "Asset Sale Offer Payment Date"). Upon
receiving an Asset Sale Offer Notice, Holders may elect to tender their Notes in
whole or in part in integral multiples of $1,000 in exchange for cash.
(f) On the Asset Sale Offer Payment Date, the Company
will, to the extent lawful:
50
(1) accept for payment all Notes or portions thereof
properly tendered pursuant to the Asset Sale Offer;
(2) deposit with the Paying Agent funds in an amount
equal to the Asset Sale Offer Amount in respect of all Notes or
portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased
by the Company.
(g) To the extent Holders of Notes and holders of other
Senior Indebtedness, if any, which are the subject of an Asset Sale Offer
properly tender and do not withdraw Notes or the other Senior Indebtedness in an
aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the
Company will purchase the Notes and the other Senior Indebtedness on a pro rata
basis (based on amounts so tendered). If only a portion of a Note is purchased
pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the
portion thereof not purchased will be issued in the name of the Holder thereof
upon cancellation of the original Note (or appropriate adjustments to the amount
and beneficial interests in a Global Note will be made, as appropriate). Notes
(or portions thereof) purchased pursuant to an Asset Sale Offer will be
cancelled and cannot be reissued.
(h) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other applicable securities laws in
connection with the purchase of Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any applicable securities laws or regulations
conflict with this Section 3.11, the Company shall comply with these laws and
regulations and shall not be deemed to have breached its obligations under this
Section 3.11 of the Indenture by doing so.
(i) Upon completion of an Asset Sale Offer, the amount of
Net Cash Proceeds will be reset at zero. Accordingly, to the extent that the
aggregate amount of Notes and other Senior Indebtedness tendered pursuant to an
Asset Sale Offer is less than the aggregate amount of unapplied Net Cash
Proceeds, the Company may use any remaining Net Cash Proceeds for general
corporate purposes of the Company and its Restricted Subsidiaries, subject to
any restrictions or obligations imposed by the terms of any Subordinated
Indebtedness of the Company or its Restricted Subsidiaries.
(j) In the event of the transfer of substantially all
(but not all) of the property and assets of the Company and its Restricted
Subsidiaries as an entirety to a Person in a transaction permitted under Section
4.1, the Successor Entity shall be deemed to have sold the properties and assets
of the Company and its Restricted Subsidiaries not so transferred for purposes
of this covenant, and shall comply with the provisions of this covenant with
respect to the deemed sale as if it were an Asset Sale. In addition, the Fair
Market Value of properties and assets of the Company or its Restricted
Subsidiaries so deemed to be sold shall be deemed to be Net Cash Proceeds for
purposes of this covenant.
51
(k) If at any time any non-cash consideration received by
the Company or any Restricted Subsidiary, as the case may be, in connection with
any Asset Sale is converted into or sold or otherwise disposed of for cash
(other than interest received with respect to any non-cash consideration), the
conversion or disposition shall be deemed to constitute an Asset Sale hereunder
and the Net Cash Proceeds thereof shall be applied in accordance with this
covenant within 365 days of conversion or disposition.
Section 3.12. Limitation on Ownership and Sale of Capital
Stock of Restricted Subsidiaries.
(a) The Company will not permit any Person other than the
Company or another Restricted Subsidiary to, directly or indirectly, own or
control any Capital Stock of any Restricted Subsidiary, except for:
(1) in the case of a Restricted Subsidiary not organized
in the United States, directors' qualifying shares or an immaterial
number of shares required to be owned by other Persons pursuant to
applicable law;
(2) the sale of 100% of the shares of the Capital Stock
of any Restricted Subsidiary held by the Company and its Restricted
Subsidiaries to any Person other than the Company or another Restricted
Subsidiary effected in accordance with, as applicable, Section 3.11 and
Section 4.1; and
(3) in the case of a Restricted Subsidiary other than a
Wholly Owned Restricted Subsidiary, the issuance by that Restricted
Subsidiary of Capital Stock on a pro rata basis to the Company and its
Restricted Subsidiaries, on the one hand, and minority shareholders of
the Restricted Subsidiary, on the other hand, (or on less than a pro
rata basis to any minority shareholder if the minority shareholder does
not acquire its pro rata amount).
Section 3.13. Limitation on Designation of Unrestricted
Subsidiaries.
(a) The Company may designate after the Issue Date any
Subsidiary of the Company as an "Unrestricted Subsidiary" under this Section
3.13 (a "Designation") only if:
(1) no Default or Event of Default shall have occurred
and be continuing at the time of or after giving effect to such
Designation and any transactions between the Company or any of its
Restricted Subsidiaries and such Unrestricted Subsidiary are in
compliance with Section 3.17;
(2) at the time of and after giving effect to such
Designation, the Company could Incur $1.00 of additional Indebtedness
pursuant to Section 3.9(a); and
(3) the Company would be permitted to make an Investment
at the time of Designation (assuming the effectiveness of such
Designation and treating such Designation as an Investment at the time
of Designation) pursuant to Section
52
3.10(a) (other than a Permitted Investment) in an amount (the
"Designation Amount") equal to the amount of the Company's Investment
in such Subsidiary on such date.
(b) Neither the Company nor any Restricted Subsidiary
will at any time be directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity upon the occurrence of a default
with respect to any Indebtedness of any Unrestricted Subsidiary, except (1) for
any non-recourse guarantee given solely to support the pledge by the Company or
any Restricted Subsidiary of the Capital Stock of any Unrestricted Subsidiary or
(2) to the extent that the ability to declare a default or accelerate the
payment is limited to a default or acceleration on the obligation or instrument
of the Company or a Restricted Subsidiary treated as a Restricted Payment and
Incurrence of Indebtedness incurred in accordance with Section 3.9 and Section
3.10.
(c) The Company may revoke any Designation of a
Subsidiary (other than a Receivables Subsidiary) as an Unrestricted Subsidiary
(a "Revocation") only if:
(1) No Default or Event of Default shall have occurred
and be continuing at the time of and after giving effect to such
Revocation; and
(2) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation would, if
Incurred at such time, have been permitted to be Incurred for all
purposes of the Indenture.
(d) The Designation of a Subsidiary of the Company as an
Unrestricted Subsidiary shall be deemed to include the Designation of all of the
Subsidiaries of such Subsidiary. All Designations and Revocations must be
evidenced by a Board Resolution delivered to the Trustee certifying compliance
with the preceding provisions.
Section 3.14. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.
(a) Except as provided in Section 3.14(b), the Company
will not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or permit to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(1) pay dividends or make any other distributions on or
in respect of its Capital Stock to the Company or any other Restricted
Subsidiary or pay any Indebtedness owed to the Company or any other
Restricted Subsidiary;
(2) make loans or advances to, or Guarantee any
Indebtedness or other obligations of, or make any Investment in, the
Company or any other Restricted Subsidiary; or
53
(3) transfer any of its property or assets to the Company
or any other Restricted Subsidiary.
(b) Section 3.14(a) will not apply to encumbrances or
restrictions existing under or by reason of:
(1) applicable law;
(2) the Indenture;
(3) the indenture governing the 8-3/8% Notes as in effect
on the Issue Date, and any amendments or restatements thereof; provided
that any amendment or restatement is not materially more restrictive
with respect to such encumbrances or restrictions than those in
existence on the Issue Date;
(4) the Bank Credit Facilities as in effect on the Issue
Date, and any amendments, restatements, renewals, replacements or
refinancings thereof; provided, that any amendment, restatement,
renewal, replacement or refinancing is not materially more restrictive
with respect to such encumbrances or restrictions than those in
existence on the Issue Date;
(5) customary non-assignment provisions of any contract
and customary provisions restricting assignment or subletting in any
lease governing a leasehold interest of any Restricted Subsidiary, or
any customary restriction on the ability of a Restricted Subsidiary to
dividend, distribute or otherwise transfer any asset which secures
Indebtedness secured by a Lien, in each case permitted to be Incurred
under the Indenture;
(6) any instrument governing Acquired Indebtedness not
Incurred in connection with, or in anticipation or contemplation of,
the relevant acquisition, merger or consolidation, which encumbrance or
restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person or the properties or assets
of the Person so acquired;
(7) restrictions with respect to a Restricted Subsidiary
of the Company imposed pursuant to a binding agreement which has been
entered into for the sale or disposition of Capital Stock or assets of
such Restricted Subsidiary; provided, that such restrictions apply
solely to the Capital Stock or assets of such Restricted Subsidiary
being sold;
(8) customary restrictions imposed on the transfer of
copyrighted or patented materials or other intellectual property; or
(9) an agreement governing Indebtedness Incurred to
Refinance the Indebtedness issued, assumed or Incurred pursuant to an
agreement referred to in Section 3.14(b)(3), (4) or (6); provided, that
such Refinancing agreement is not materially more restrictive with
respect to such encumbrances or restrictions than those contained in
the agreement referred to in such clauses (3), (4) or (6).
54
Section 3.15. Limitation on Liens.
(a) The Company will not, and will not cause or permit
any of its Restricted Subsidiaries to, directly or indirectly, Incur or permit
to exist any Liens of any kind (except for Permitted Liens) against or upon any
of their respective properties or assets (including Capital Stock of a
Restricted Subsidiary), whether owned on the Issue Date or acquired after the
Issue Date, or any proceeds therefrom, to secure any Indebtedness or trade
payables unless contemporaneously therewith effective provision is made:
(1) in the case of the Company or any Restricted
Subsidiary other than a Note Guarantor, to secure the Notes and all
other amounts due under the Indenture; and
(2) in the case of a Note Guarantor, to secure such Note
Guarantor's Note Guarantee of the Notes and all other amounts due under
the Indenture;
in each case, equally and ratably with such Indebtedness or trade payables (or,
in the event that such Indebtedness is subordinated in right of payment to the
Notes or such Note Guarantee, as the case may be, prior to such Indebtedness)
with a Lien on the same properties and assets securing such Indebtedness for so
long as such Indebtedness is secured by such Lien.
Section 3.16. Limitation on Sale and Leaseback
Transactions.
(a) The Company will not, and will not cause or permit
any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction with
respect to any property unless:
(1) the Company or such Restricted Subsidiary would be
entitled to (A) Incur Indebtedness in an amount equal to the
Attributable Debt with respect to such Sale and Leaseback Transaction
in accordance with Section 3.9 and (B) create a Lien on such property
securing such Attributable Debt without securing the Notes in
accordance with Section 3.15;
(2) the consideration received by the Company or any
Restricted Subsidiary with respect to such Sale and Leaseback
Transaction is at least equal to the Fair Market Value of the property
that is the subject of such Sale and Leaseback Transaction; and
(3) the Company applies the proceeds of such transaction
in compliance with Section 3.11.
Section 3.17. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into any transaction
or series of related transactions (including the purchase, sale, lease or
exchange of any property or the
55
rendering of any service) with, or for the benefit of, any of its Affiliates
(each an "Affiliate Transaction"), unless:
(1) the terms of such Affiliate Transaction are no less
favorable than those that could reasonably be expected to be obtained
in a comparable transaction at such time on an arm's-length basis from
a Person that is not an Affiliate of the Company;
(2) in the event that such Affiliate Transaction involves
aggregate payments, or transfers of property or services with a Fair
Market Value, in excess of $2 million, the terms of such Affiliate
Transaction shall be approved by a majority of the members of the Board
of Directors of the Company (including a majority of the disinterested
members thereof), the approval to be evidenced by a Board Resolution
stating that the Board of Directors has determined that such
transaction complies with the preceding provisions; and
(3) in the event that such Affiliate Transaction involves
aggregate payments, or transfers of property or services with a Fair
Market Value, in excess of $10 million, the Company shall, prior to the
consummation thereof, obtain a favorable opinion as to the fairness of
such Affiliate Transaction to the Company and the relevant Restricted
Subsidiary (if any) from a financial point of view from an Independent
Financial Advisor and file the same with the Trustee.
(b) Section 3.17(a) above shall not apply to:
(1) transactions with or among the Company and any
Restricted Subsidiary or between or among Restricted Subsidiaries;
(2) reasonable fees and compensation paid to, and any
indemnity provided on behalf of, officers, directors, employees,
consultants or agents of the Company or any Restricted Subsidiary as
determined in good faith by the Company's Board of Directors;
(3) any transactions undertaken pursuant to any
contractual obligations or rights in existence on the Issue Date as in
effect on the Issue Date;
(4) any Restricted Payments made in accordance with
Section 3.10;
(5) loans and advances to officers, directors and
employees of the Company or any Restricted Subsidiary for travel,
entertainment, moving and other relocation expenses, in each case made
in the ordinary course of business and not exceeding $1 million
outstanding at any one time;
(6) any Qualified Receivables Transaction or any
Investment in a Receivables Subsidiary permitted under the Indenture in
connection with a Receivables Transaction;
56
(7) transactions with Ri-Rent Europe B.V. and Canlift Co.
Ltd. in connection with the ordinary operations of those businesses and
which are not material to the Company and its Restricted Subsidiaries,
taken as a whole; and
(8) the issuance of Capital Stock of the Company (other
than Disqualified Capital Stock).
Section 3.18. Conduct of Business.
The Company and its Restricted Subsidiaries will not engage in
any businesses other than a Permitted Business.
Section 3.19. Reports to Holders.
(a) Notwithstanding that the Company may not be subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so
long as any Notes remain outstanding, the Company will:
(1) provide the Trustee and the Holders with the annual
reports and information, documents and other reports as are specified
in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S.
corporation subject to such Sections within 15 days after the times
specified for the filing of the information, documents and reports
under such Sections; and
(2) file with the SEC, to the extent permitted, the
information, documents and reports referred to in Section 3.19(a)(1)
within the periods specified for such filings under the Exchange Act
(whether or not applicable to the Company).
(b) In addition, at any time when the Company is not
subject to or is not current in its reporting obligations under Section
3.19(a)(2), the Company will make available, upon request, to any holder and any
prospective purchaser of Notes the information required pursuant to Rule
144A(d)(4) under the Securities Act.
ARTICLE IV
SUCCESSOR ENTITY
Section 4.1. Merger, Consolidation and Sale of Assets.
(a) The Company will not, in a single transaction or
series of related transactions, consolidate or merge with or into any Person
(whether or not the Company is the surviving or continuing Person), or sell,
assign, transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise
dispose of) all or substantially all of the Company's properties and assets
(determined on a consolidated basis for the Company and its Restricted
Subsidiaries), to any Person unless:
57
(1) either:
(i) the Company shall be the surviving or continuing
corporation, or
(ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or
the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition the
properties and assets of the Company and of the
Company's Restricted Subsidiaries substantially as an
entirety (the "Successor Entity"):
(x) shall be a corporation organized and validly
existing under the laws of the United States or
any State thereof or the District of Columbia and
(y) shall expressly assume, by supplemental
indenture (in form and substance satisfactory to
the Trustee), executed and delivered to the
Trustee, the due and punctual payment of the
principal of, and premium and interest on all of
the Notes and the performance and observance of
every covenant of the Notes, the Indenture and the
Registration Rights Agreement on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction
and the assumption contemplated by Section 4.1(a)(1)(ii)(y) (including
giving effect on a pro forma basis to any Indebtedness, including any
Acquired Indebtedness, Incurred or anticipated to be Incurred in
connection with or in respect of such transaction), the Company or such
Successor Entity, as the case may be:
(i) shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of the
Company immediately prior to such transaction, and
(ii) shall be able to Incur at least $1.00 of additional
Indebtedness pursuant to Section 3.9(a);
(3) immediately before and immediately after giving
effect to such transaction and the assumption contemplated by Section
4.1(a)(1)(ii)(y) (including giving effect on a pro forma basis to any
Indebtedness, including any Acquired Indebtedness, Incurred or
anticipated to be Incurred and any Lien granted in connection with or
in respect of the transaction), no Default or Event of Default shall
have occurred or be continuing;
(4) each Note Guarantor (including Persons that become
Note Guarantors as a result of the transaction) shall have confirmed by
supplemental indenture that its Note Guarantee shall apply to the
Obligations of the Successor Entity in respect of the Indenture and the
Notes; and
58
(5) the Company or the Successor Entity shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that the consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if required in
connection with such transaction, the supplemental indenture, comply
with the applicable provisions of the Indenture and that all conditions
precedent in the Indenture relating to the transaction have been
satisfied.
For purposes of this covenant, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries (other than, for the avoidance of doubt, in connection with
Receivables Transactions) of the Company, the Capital Stock of which constitutes
all or substantially all of the properties and assets of the Company and its
Restricted Subsidiaries, taken as a whole, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
(b) Section 4.1(a)(2)(ii) shall not apply to:
(1) any transfer of the properties or assets of a
Restricted Subsidiary to the Company or to a Note Guarantor;
(2) any merger of a Restricted Subsidiary into the
Company or a Note Guarantor;
(3) any merger of the Company into a Wholly Owned
Restricted Subsidiary created for the purpose of holding the Capital
Stock of the Company;
(4) a merger between the Company and a newly-created
Affiliate incorporated solely for the purpose of reincorporating the
Company in another State of the United States,
so long as, in each case the Indebtedness of the Company and its
Restricted Subsidiaries is not increased thereby.
(c) Upon any consolidation, combination or merger or any
transfer of all or substantially all of the properties and assets of the Company
and its Restricted Subsidiaries in accordance with this covenant, in which the
Company is not the continuing corporation, the Successor Entity formed by such
consolidation or into which the Company is merged or to which such conveyance,
lease or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under the Indenture and the Notes
with the same effect as if such Successor Entity had been named as such. For the
avoidance of doubt, compliance with this covenant shall not affect the
obligations of the Company (including a Successor Entity, if applicable) under
Section 3.8, if applicable.
(d) Each Note Guarantor will not, and the Company will
not cause or permit any Note Guarantor to, consolidate with or merge into, or
sell or dispose of all or
59
substantially all of its assets to, any Person (other than the Company) that is
not a Note Guarantor unless:
(1) such Person (if such Person is the surviving entity)
assumes all of the obligations of such Note Guarantor in respect of its
Note Guarantee by executing a supplemental indenture and providing the
Trustee with an Officers' Certificate and Opinion of Counsel, and such
transaction is otherwise in compliance with the Indenture;
(2) such Note Guarantee is to be released as provided
under Section 9.2; or
(3) such sale or other disposition of substantially all
of such Note Guarantor's assets is made in accordance with Section 3.11
or is a "disposition" that is not deemed to be an Asset Sale pursuant
to the definition of Asset Sale.
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.1. Events of Default.
(a) The following are "Events of Default":
(1) default in the payment when due of the principal of
or premium on any Notes, including the failure to make a required
payment to purchase Notes tendered pursuant to a Change of Control
Offer or an Asset Sale Offer.
(2) default for 30 days or more in the payment when due
of interest on any Notes (including additional interest payable under a
Registration Rights Agreement).
(3) the failure to perform or comply with any of the
provisions described in Section 3.11 or Section 4.1;
(4) the failure by the Company or any Restricted
Subsidiary to comply with any other covenant or agreement contained in
the Indenture or in the Notes for 30 days or more after written notice
to the Company from the Trustee or the Holders of at least 25% in
aggregate principal amount of the outstanding Notes;
(5) default by the Company or any Restricted Subsidiary
under any Indebtedness (which, in the case of a Limited Recourse
Receivables Transaction, shall be the recourse obligations of the
Company and its Restricted Subsidiaries thereunder) which:
(a) is caused by a failure to pay principal of
or premium or interest on such Indebtedness prior to the
expiration of any applicable grace period provided in such
Indebtedness on the date of such default; or
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(b) results in the acceleration of such
Indebtedness prior to its Stated Maturity;
and the principal or accreted amount of Indebtedness covered by (a) or (b) at
the relevant time, aggregates $20 million or more.
(6) failure by the Company or any of its Restricted
Subsidiaries to pay one or more final judgments against any of them
which are not covered by adequate insurance by a solvent insurer of
national or international reputation which has acknowledged its
obligations in writing, aggregating $20 million or more, which
judgment(s) are not paid, discharged or stayed for a period of 60 days
or more;
(7) a Bankruptcy Law Event of Default; or
(8) except as permitted by the Indenture, any Note
Guarantee is held to be unenforceable or invalid in a judicial
proceeding or ceases for any reason to be in full force and effect or
any Note Guarantor, or any Person acting on behalf of any Note
Guarantor, denies or disaffirms such Note Guarantor's obligations under
its Note Guarantee.
The foregoing will constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.
(b) The Company shall deliver to the Trustee upon
becoming aware of any Default or Event of Default written notice in the form of
an Officers' Certificate of any Default or Event of Default, their status and
what action the Company proposes to take in respect thereof.
Section 5.2. Acceleration.
(a) If an Event of Default (other than an Event of
Default specified in Section 5.1(a)(7) with respect to the Company) shall occur
and be continuing, the Trustee or the Holders of at least 25% in principal
amount of outstanding Notes may declare the unpaid principal of (and premium)
and accrued and unpaid interest on all the Notes to be immediately due and
payable by notice in writing to the Company and the Trustee specifying the Event
of Default and that it is a "notice of acceleration." If an Event of Default
specified in Section 5.1(a)(7) occurs with respect to the Company, then the
unpaid principal of (and premium) and accrued and unpaid interest on all the
Notes will become immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
(b) At any time after a declaration of acceleration with
respect to the Notes as described in the preceding paragraph (a), the Holders of
a majority in principal amount of the Notes may rescind and cancel such
declaration and its consequences:
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(1) if the rescission would not conflict with any
judgment or decree;
(2) if all existing Events of Default have been cured or
waived, except nonpayment of principal or interest that has become due
solely because of the acceleration;
(3) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of
acceleration, has been paid; and
(4) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its reasonable expenses,
disbursements and advances.
No rescission shall affect any subsequent Default or impair any rights relating
thereto.
Section 5.3. Other Remedies.
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of
and interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 5.4. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Notes by
written consent of such majority may waive any existing Default or Event of
Default under this Indenture, and its consequences, except a default in the
payment of the principal of, premium or interest on any Notes.
Section 5.5. Control by Majority. The Holders of a
majority in principal amount of the Outstanding Notes may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. Subject to
Sections 6.1 and 6.2, however, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture; provided, however, that the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction.
Section 5.6. Limitation on Suits. No Holder of any Notes
will have any right to institute any proceeding with respect to the Indenture or
for any remedy thereunder, unless:
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(a) such Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to pursue the remedy;
(c) such Holders of the Notes provide to the Trustee
indemnity satisfactory to it;
(d) the Trustee does not comply within 60 days; and
(e) during such 60-day period the Holders of a majority
in principal amount of the outstanding Notes do not give the Trustee a written
direction which, in the opinion of the Trustee, is inconsistent with the
request;
provided, that a Holder of a Note may institute suit for enforcement of payment
of principal of and premium or interest on such Note on or after the respective
due dates expressed in such Note.
Section 5.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture (including Section 5.6),
the right of any Holder to receive payment of principal of or interest on the
Notes held by such Holder, on or after the respective due dates or repurchase
date expressed in this Indenture or the Notes, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 5.8. Collection Suit by Trustee. If an Event of
Default specified in Section 5.1(a)(1) and (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company and each Note Guarantor for the whole amount then due and
owing (together with applicable interest on any overdue principal and, to the
extent lawful, interest on overdue interest) and the amounts provided for in
Section 6.7.
Section 5.9. Trustee May File Proofs of Claim, etc.
(a) The Trustee may (irrespective of whether the
principal of the Notes is then due):
(1) file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee and the Holders under this Indenture and the Notes
allowed in any bankruptcy, insolvency, liquidation or other judicial
proceedings relative to the Company, any Note Guarantor or any
Subsidiary of the Company or their respective creditors or properties;
and
(2) collect and receive any moneys or other property
payable or deliverable in respect of any such claims and distribute
them in accordance with this Indenture.
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Any receiver, trustee, liquidator, sequestrator (or other similar official) in
any such proceeding is hereby authorized by each Holder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, taxes, disbursements and advances
of the Trustee, its agent and counsel, and any other amounts due to the Trustee
pursuant to Section 6.7.
(b) Nothing in this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 5.10. Priorities. If the Trustee collects any
money or property pursuant to this Article V, it shall pay out the money or
property in the following order:
FIRST: to the Trustee for amounts due under Section 6.7;
SECOND: if the Holders proceed against the Company directly
without the Trustee in accordance with this Indenture, to Holders for their
collection costs;
THIRD: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively; and
FOURTH: to the Company or, to the extent the Trustee collects
any amount pursuant to Article IX from any Note Guarantor, to such Note
Guarantor, or to such party as a court of competent jurisdiction shall direct.
The Trustee may, upon notice to the Company, fix a record date and payment date
for any payment to Holders pursuant to this Section 5.10.
Section 5.11. 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 5.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 5.7 or a suit
by Holders of more than 10% in principal amount of Outstanding Notes.
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ARTICLE VI
TRUSTEE
Section 6.1. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and
is continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of a Default or an
Event of Default:
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates or
opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of
Section 6.1(b);
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.2, 5.4 or 5.5.
(d) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company.
(e) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its
65
duties hereunder or in the exercise of any of its rights or powers, if it shall
have reasonable grounds to believe that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article VI and to the provisions of
the TIA.
(h) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(i) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses (including
reasonable attorneys' fees and expenses) and liabilities that might be incurred
by it in compliance with such request or direction.
Section 6.2. Rights of Trustee. Subject to Section 6.1:
(a) The Trustee may conclusively rely on any document
reasonably believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting at
the direction of the Company, it may require an Officers' Certificate or an
Opinion of Counsel. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on an Officers' Certificate or Opinion
of Counsel.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Trustee's conduct does
not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its
selection, and the advice or opinion of counsel with respect to legal matters
relating to this Indenture and the Notes shall be full and complete
authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) If the Trustee shall determine, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney.
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust Officer of the Trustee has actual
knowledge thereof or
66
unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Notes and this Indenture.
(h) The rights, privileges, protections, immunities and
benefits given to the Trustee, including its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
(i) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
Section 6.3. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company, the Note Guarantors or any of their
Affiliates with the same rights it would have if it were not Trustee. Any Paying
Agent, Registrar or co-Registrar may do the same with like rights. However, the
Trustee must comply with Sections 6.10 and 6.11.
Section 6.4. Trustee's Disclaimer. The Trustee shall not
be responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee's
certificate of authentication.
Section 6.5. Notice of Defaults. If a Default or Event of
Default occurs and is continuing and if a Responsible Officer has actual
knowledge thereof, the Trustee shall mail to each Holder notice of the Default
or Event of Default within 90 days after the occurrence thereof. Except in the
case of a Default or Event of Default in payment of principal of or interest on
any Note (including payments pursuant to the required repurchase provisions of
such Note, if any), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of the Holders.
Section 6.6. Reports by Trustee to Holders. The Trustee
shall comply with TIA Section 313. The Company agrees to notify promptly the
Trustee whenever the Notes become listed on any stock exchange and of any
delisting thereof.
Section 6.7. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to
time such compensation for its acceptance of this Indenture and services
hereunder as the Company and the Trustee shall from time to time agree in
writing. The Trustee's compensation
67
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection,
costs of preparing and reviewing reports, certificates and other documents,
costs of preparation and mailing of notices to Holders and reasonable costs of
counsel retained by the Trustee in connection with the delivery of an Opinion of
Counsel or otherwise, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's agents, counsel, accountants and experts.
(b) The Company and the Note Guarantors shall jointly and
severally indemnify the Trustee against any and all loss, damage, claim
liability, expense (including reasonable attorneys' fees and expenses) and taxes
(other than those measured by or determined by the income of the Trustee)
incurred by it without negligence, willful misconduct or bad faith on its part
in connection with the acceptance and administration of this trust and the
performance of its duties hereunder, including the costs and expenses of
enforcing this Indenture (including this Section 6.7) and of defending itself
against any claims (whether asserted by any Holder, the Company, any Note
Guarantor or otherwise). The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee may have separate counsel and the Company
shall pay the fees and expenses of such counsel. The Company need not reimburse
any expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own negligence, willful misconduct or bad faith.
(c) To secure the Company's payment obligations in this
Section 6.7, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee other than money or property held in
trust to pay principal of and interest on particular Notes. The Trustee's right
to receive payment of any amounts due under this Section 6.7 shall not be
subordinate to any other liability or Indebtedness of the Company.
(d) The Company's payment obligations pursuant to this
Section 6.7 shall survive the discharge of this Indenture and the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence of
a Bankruptcy Law Event of Default specified in Section 5.1(a)(7), the expenses
are intended to constitute expenses of administration under any Bankruptcy Law;
provided, however, that this shall not affect the Trustee's rights as set forth
in this Section 6.7 or Section 5.10.
Section 6.8. Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying
the Company. The Holders of a majority in principal amount of the Outstanding
Notes may remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee reasonably acceptable to the Company. The Company shall remove
the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
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(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns or is removed by the Company
or by the Holders of a majority in principal amount of the Outstanding Notes and
such Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of the Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 6.7.
(d) If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the retiring Trustee or
the Holders of 10% in principal amount of the Outstanding Notes may petition, at
the Company's expense, any court of competent jurisdiction for the appointment
of a successor Trustee.
(e) If the Trustee fails to comply with Section 6.10, any
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee
pursuant to this Section 6.8, the Company's obligations under Section 6.7 shall
continue for the benefit of the retiring Trustee.
Section 6.9. Successor Trustee by Merger.
(a) If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all its corporate trust business or
assets to, another corporation or banking association, the resulting, surviving
or transferee corporation without any further act shall be the successor
Trustee.
(b) In case at the time such successor or successors to
the Trustee shall succeed to the trusts created by this Indenture, any of the
Notes shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Trustee; and in all such
69
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 6.10. Eligibility; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Trustee
shall have a combined capital and surplus of at least $50 million as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b); provided, however, that there shall be excluded
from the operation of TIA Section 310(b)(1) any indenture or indentures under
which other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such exclusion
set forth in TIA Section 310(b)(1) are met.
Section 6.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 7.1. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option, at any time, elect to
have either Section 7.1(b) or (c) be applied to all Outstanding Notes upon
compliance with the conditions set forth in Section 7.2.
(b) Upon the Company's exercise under paragraph (a) of
this Section 7.1 of the option applicable to this paragraph (b), the Company
shall, subject to the satisfaction of the conditions set forth in Section 7.2,
be deemed to have been discharged from its obligations with respect to all
Outstanding Notes on the date all of the conditions set forth in Section 7.2
(including Section 7.2(4)(b)) are satisfied (hereinafter, "Legal Defeasance").
For this purpose, Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the Outstanding
Notes on the 91st day after the deposit specified in Section 7.2(1), which shall
thereafter be deemed to be Outstanding only for the purposes of Section 7.3 and
the other Sections of this Indenture referred to in clause (i) or (ii) of this
paragraph (b), and to have satisfied all its other obligations under such Notes
and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions, which shall survive until otherwise terminated or
discharged hereunder:
(i) the rights of Holders of Outstanding Notes to receive
solely from the trust fund described in Section 7.3,
and as more fully set forth in Section 7.3, payments
in respect of the principal of, premium, and interest
on such Notes when such payments are due,
70
(ii) the Company's obligations with respect to such Notes
under Article II and Section 3.2,
(iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's obligations
in connection therewith, and
(iv) this Article VII.
Subject to compliance with this Article VII, the Company may exercise its option
under this paragraph (b) notwithstanding the prior exercise of its option under
paragraph (c) of this Section 7.1.
(c) Upon the Company's exercise under paragraph (a) of
this Section 7.1 of the option applicable to this paragraph (c), the Company
shall, subject to the satisfaction of the applicable conditions set forth in
Section 7.2, be released from its obligations under the covenants contained in
Sections 3.4, 3.5, 3.8 through 3.19, and 4.1(a)(2), (3) and (4) with respect to
the Outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not Outstanding for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be Outstanding for all
other purposes hereunder (it being understood that such Notes shall not be
deemed Outstanding for accounting purposes). For this purpose, such Covenant
Defeasance means that, with respect to the Outstanding Notes, the Company, its
Restricted Subsidiaries and the Note Guarantors may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event or Default
under Section 5.1(a)(3), (4), (5), (6), (8) and 5.2, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby.
Section 7.2. Conditions to Defeasance. The Company may
exercise its Legal Defeasance option or its Covenant Defeasance option only if:
(1) the Company irrevocably deposits with the Trustee, in
trust for the benefit of the Holders, U.S. Legal Tender, U.S.
Government Obligations or a combination thereof in such amounts as will
be sufficient without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, and interest on the Notes on the stated date for payment
thereof;
(2) in the case of Legal Defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee and independent of the
Company confirming that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a
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ruling or (B) since the Issue Date, there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the
Holders of the Outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee and independent of the
Company confirming that the Holders of the Outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(4) no Default or Event of Default shall have occurred
and be continuing on (a) the date of such deposit pursuant to Section
7.2(1) (other than a Default or Event of Default resulting from the
failure to comply with Section 3.9 as a result of the borrowing of
funds required to effect such deposit), or (b) in the case of Legal
Defeasance, insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 91st day
after the date of deposit, and the Trustee shall have received
Officers' Certificates to such effect on the date of such deposit and,
in the case of Legal Defeasance, on such 91st day;
(5) the Trustee shall have received an Officers'
Certificate stating that such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a default
under this Indenture or any other material agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or any Subsidiary of the Company or with the
intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel reasonably acceptable
to the Trustee, each stating that all conditions precedent provided for
or relating to the Legal Defeasance or the Covenant Defeasance have
been complied with;
(8) the Company shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee to the effect
that after the 91st day following the deposit, the trust funds will not
be subject to the effect of any
72
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally; and
(9) the Company shall have delivered to the Trustee an
Opinion of Counsel that is not an employee of the Company (subject to
customary assumptions and exclusions) to the effect that the trust
resulting from the deposit either does not constitute, or is qualified
as, a regulated investment company under the Investment Company Act of
1940.
Section 7.3. Application of Trust Money. The Trustee
shall hold in trust U.S. Legal Tender or U.S. Government Obligations, together
with earnings thereon deposited with it pursuant to this Article VII. It shall
apply the deposited money and the U.S. Legal Tender from U.S. Government
Obligations, together with earnings thereon, through the Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Notes. The U.S. Legal Tender or U.S. Government Obligations so held in trust
and deposited with the Trustee in compliance with Section 7.2 shall not be part
of the trust estate under this Indenture, but shall constitute a separate trust
fund for the benefit of all Holders entitled thereto.
Section 7.4. Repayment to Company.
(a) The Trustee and the Paying Agent shall promptly turn
over to the Company, or if deposited with the Trustee by any Note Guarantor, to
such Note Guarantor, upon request any excess money or securities held by them
upon payment of all the obligations under this Indenture.
(b) Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company or any Note Guarantor, as
the case may be, upon request, any money held by them for the payment of
principal of, premium or interest on the Notes that remains unclaimed for two
years, and, thereafter, Holders entitled to money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another Person.
Section 7.5. Indemnity for U.S. Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
Section 7.6. Reinstatement. If the Trustee or Paying
Agent is unable to apply any U.S. Legal Tender or U.S. Government Obligations in
accordance with this Article VII by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then and only then the
obligations of the Company and each Note Guarantor under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to this Article VII 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 VII; provided, however, that, if the Company or the Note
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Guarantors, as the case may be, have made any payment of principal of, premium
or interest on any Notes because of the reinstatement of its obligations, the
Company or the Note Guarantors, as the case may be, shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the U.S. Legal
Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
Section 7.7. Satisfaction and Discharge. The Indenture
will be discharged and will cease to be of further effect (except as to
surviving rights or registration of transfer or exchange of the Notes, as
expressly provided for in the Indenture) as to all Outstanding Notes when:
(a) either:
(1) all the Notes theretofore executed, authenticated and
delivered (except lost, stolen or destroyed Notes which have been
replaced or paid and Notes for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust) have
been delivered to the Trustee for cancellation, or
(2) all Notes not theretofore delivered to the Trustee
for cancellation have become due and payable, and the Company has
irrevocably deposited or caused to be deposited with the Trustee U.S.
Legal Tender or U.S. Government Obligations sufficient to pay and
discharge the entire Indebtedness on the Notes not theretofore
delivered to the Trustee for cancellation, for principal of, premium
and interest on the Notes to the date of deposit, together with
irrevocable instructions from the Company directing the Trustee to
apply such funds to the payment;
(b) the Company has paid all other sums payable under
this Indenture and the Notes by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent under this Indenture relating
to the satisfaction and discharge of this Indenture have been complied with.
ARTICLE VIII
AMENDMENTS
Section 8.1. Without Consent of Holders.
(a) The Company, the Note Guarantors and the Trustee may
amend or supplement this Indenture or the Notes without notice to or consent of
any Holder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
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(2) to comply with Article IV in respect of the
assumption by a Successor Entity of the obligations of the Company
under the Notes and this Indenture;
(3) to provide for uncertificated Notes in addition to or
in place of certificated Notes; provided, however, that the
uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code;
(4) to add guarantees with respect to the Notes or to
secure the Notes;
(5) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power herein
conferred upon the Company;
(6) to comply with any requirements of the SEC in
connection with qualifying this Indenture under the TIA;
(7) to make any change that does not, in the opinion of
the Trustee, adversely affect the rights of any Holder in any material
respect (it being understood that the Trustee will be entitled to rely
on such evidence it deems appropriate in formulating this opinion,
including an Opinion of Counsel and Officer's Certificate);
(8) to provide for the issuance of the Exchange Notes and
Private Exchange Securities, which will have terms substantially
identical to the other Outstanding Notes except for the requirement of
a Private Placement Legend and related transfer restrictions under the
Securities Act and this Indenture and as to the applicability of
additional interest payable as provided in Section 2.13, and which will
be treated, together with any other Outstanding Notes, as a single
issue of securities; or
(9) to provide for the issuance of Additional Notes as
permitted by Sections 2.2(c) and 2.12, which will have terms
substantially identical to the other Outstanding Notes except as
specified in Section 2.12 or 2.13, and which will be treated, together
with any other Outstanding Notes, as a single issue of securities.
(b) After an amendment or supplement under this Section
8.1 becomes effective, the Company shall mail to Holders a notice briefly
describing such amendment or supplement. The failure to give such notice to all
Holders, or any defect therein, shall not impair or affect the validity of an
amendment or supplement under this Section 8.1.
Section 8.2. With Consent of Holders.
(a) The Company, the Note Guarantors and the Trustee may
amend or supplement this Indenture or the Notes without notice to any Holder but
with the written consent of the Holders of at least a majority in principal
amount of the Outstanding Notes (including consents obtained in connection with
a purchase of, or tender offer or exchange offer for, Notes). Subject to Section
5.4, the Holder or Holders of a majority in aggregate principal amount of the
Outstanding Notes may waive compliance by the
75
Company with any provision of this Indenture or the Notes without notice to any
other Holder. However, without the consent of each Holder affected, an
amendment, supplement or waiver may not:
(1) reduce the amount of Notes whose Holders must consent
to an amendment or waiver;
(2) reduce the rate of or change or have the effect of
changing the time for payment of interest, including Defaulted
Interest, on any Notes;
(3) reduce the principal of or change or have the effect
of changing the fixed maturity of any Notes or provide for the
redemption of any Notes prior to their fixed maturity;
(4) make any Notes payable in money other than that
stated in the Notes;
(5) make any change in the provisions of this Indenture
entitling each Holder to receive payment of principal of, premium and
interest on such Notes on or after the due date thereof or to bring
suit to enforce such payment, or permitting Holders of a majority in
principal amount of Outstanding Notes to waive Defaults or Events of
Default;
(6) amend, change or modify in any material respect any
obligation of the Company to make and consummate a Change of Control
Offer in respect of a Change of Control that has occurred or make and
consummate an Asset Sale Offer with respect to any Asset Sale that has
been consummated;
(7) make any change in the ranking of any Note that
adversely affects the rights of any holder;
(8) eliminate or modify in any manner the obligations of
a Note Guarantor with respect to its Note Guarantee, which adversely
affects Holders in any material respect, except as expressly otherwise
provided for in this Indenture; or
(9) make any change in the amendment provisions which
require the consent of each Holder or in the waiver provisions which
require the consent of each Holder.
(b) It shall not be necessary for the consent of the
Holders under this Section 8.2 to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
(c) After an amendment, supplement or waiver under this
Section 8.2 becomes effective, the Company shall mail to Holders a notice
briefly describing such amendment, supplement or waiver. The failure to give
such notice to all Holders, or any
76
defect therein, shall not impair or affect the validity of an amendment,
supplement or waiver under this Section 8.2.
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Notes shall comply with the TIA as then in
effect.
Section 8.4. Revocation and Effect of Consents and
Waivers.
(a) A consent to an amendment or a supplement or a waiver
by a Holder of a Note shall bind the Holder and every subsequent Holder of that
Note or portion of the Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent or waiver is not made on the
Note. However, any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder's Note or portion of the Note if the Trustee receives
the notice of revocation before the date the amendment, a supplement or waiver
becomes effective. After an amendment, a supplement or waiver becomes effective,
it shall bind every Holder. An amendment, a supplement or waiver shall become
effective upon receipt by the Trustee of the requisite number of written
consents under Section 8.2.
(b) The Company may, but shall not be obligated to, fix a
record date, which need not be the date provided in 316(c) of the TIA to the
extent it would otherwise be applicable, for the purpose of determining the
Holders entitled to give their consent or take any other action described above
or required or permitted to be taken pursuant to this Indenture. If a record
date is fixed, then notwithstanding the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to give such consent or to revoke any
consent previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall become
valid or effective more than 90 days after such record date or, if none is set,
after the date given.
Section 8.5. Notation on or Exchange of Notes. If an
amendment or a supplement changes the terms of a Note, the Trustee may require
the Holder of the Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note regarding the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Note will execute and upon Company Order the Trustee
will authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or to issue a new Note shall not affect the validity of
such amendment or supplement.
Section 8.6. Trustee to Sign Amendments or Supplements.
The Trustee shall sign any amendment or supplement authorized pursuant to this
Article VIII if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may but need not sign it. In signing such amendment or supplement the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Sections 6.1 and 6.2) shall be fully protected in
relying upon, such evidence as it deems appropriate, including solely on an
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Opinion of Counsel stating that such amendment or supplement is authorized or
permitted by this Indenture.
ARTICLE IX
NOTE GUARANTEES
Section 9.1. Note Guarantees.
(a) Each Note Guarantor hereby fully, unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety, jointly and
severally with each other Note Guarantor, to each Holder and the Trustee the
full and punctual payment when due, whether at maturity, by acceleration or
otherwise, of the Obligations (such guaranteed Obligations, the "Guaranteed
Obligations"). Each Note Guarantor further agrees (to the extent permitted by
law) that the Obligations may be extended or renewed, in whole or in part,
without notice or further assent from it, and that it will remain bound under
this Article IX notwithstanding any extension or renewal of any Obligation. Each
Note Guarantor hereby agrees to pay, in addition to the amounts stated above,
any and all expenses (including reasonable counsel fees and expenses) incurred
by the Trustee or the Holders in enforcing any rights under any Note Guarantee.
(b) Each Note Guarantor waives presentation to, demand of
payment from and protest to the Company of any of the Obligations and also
waives notice of protest for nonpayment. Each Note Guarantor waives notice of
any default under the Notes or the Obligations. The obligations of each Note
Guarantor hereunder shall not be affected by (i) the failure of any Holder to
assert any claim or demand or to enforce any right or remedy against the Company
or any other Person under this Indenture, the Notes or any other agreement or
otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Notes or any other agreement; (iv) the release of any security
held by any Holder or the Trustee for the Obligations or any of them; (v) the
failure of any Holder to exercise any right or remedy against any other Note
Guarantor; or (vi) any change in the ownership of the Company.
(c) Each Note Guarantor further agrees that its Note
Guarantee herein constitutes a guarantee of payment when due (and not a
guarantee of collection) and waives any right to require that any resort be had
by any Holder to any security held for payment of the Obligations.
(d) The obligations of each Note Guarantor hereunder
shall not be subject to any reduction, limitation, impairment or termination for
any reason (other than payment of the Obligations in full), including any claim
of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Note Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder to assert any claim or demand
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or to enforce any remedy under this Indenture, the Notes or any other agreement,
by any waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations, or by any other act
or thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of such Note Guarantor or would
otherwise operate as a discharge of such Note Guarantor as a matter of law or
equity.
(e) Each Note Guarantor further agrees that its Note
Guarantee herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or interest
on any of the Obligations is rescinded or must otherwise be restored by any
Holder upon the bankruptcy or reorganization of the Company or otherwise.
(f) In furtherance of the foregoing and not in limitation
of any other right which any Holder has at law or in equity against each Note
Guarantor by virtue hereof, upon the failure of the Company to pay any of the
Obligations when and as the same shall become due, whether at maturity, by
acceleration or otherwise, each Note Guarantor hereby promises to and will, upon
receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in
cash, to the Holders an amount equal to the sum of:
(i) the unpaid amount of such Obligations then due and
owing; and
(ii) accrued and unpaid interest on such Obligations then
due and owing (but only to the extent not prohibited
by law).
(g) Each Note Guarantor further agrees that, as between
such Note Guarantor, on the one hand, and the Holders, on the other hand:
(i) the maturity of the Obligations guaranteed hereby may
be accelerated as provided in this Indenture for the
purposes of its Note Guarantee herein,
notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect
of the Obligations guaranteed hereby; and
(ii) in the event of any such declaration of acceleration
of such Obligations, such Obligations (whether or not
due and payable) shall forthwith become due and
payable by such Note Guarantor for the purposes of
its Note Guarantee.
Section 9.2. Limitation on Liability; Termination,
Release and Discharge.
(a) The obligations of each Note Guarantor hereunder will
be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Note Guarantor and after giving effect
to any collections from or payments made by or on behalf of any other Note
Guarantor in respect of the obligations of such other Note Guarantor under its
Note Guarantee or pursuant to its contribution obligations under this Indenture,
result in the obligations of such Note Guarantor under
79
its Note Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law.
(b) A Note Guarantor will be released and relieved of its
obligations under its Note Guarantee in the event:
(1) there is a Legal Defeasance of the Notes as described
in Section 7.1;
(2) there is a sale or other disposition of Capital Stock
of such Note Guarantor following which such Note Guarantor is no longer
a direct or indirect Subsidiary of the Company;
(3) there is any sale or other disposition of all or
substantially all of the assets of such Note Guarantor to a third
party, other than the Company or an Affiliate of the Company (including
by way of merger or consolidation), if the Company applies the Net Cash
Proceeds of that sale or other disposition in accordance with the
applicable provisions of the Indenture and such Note Guarantor is no
longer a Material Domestic Subsidiary after giving effect thereto;
(4) there is a merger or dissolution of such Note
Guarantor into the Company or another Note Guarantor; or
(5) in the event such Note Guarantor is designated as an
Unrestricted Subsidiary in accordance with Section 3.13;
provided, that the transaction pursuant to which a Note Guarantor is released
and relieved of its obligations under its Note Guarantee is carried out pursuant
to and in accordance with any other applicable provisions of the Indenture.
Section 9.3. Right of Contribution. Each Note Guarantor
that makes a payment or distribution under a Note Guarantee will be entitled to
a contribution from each other Note Guarantor in a pro rata amount, based on the
net assets of each Note Guarantor determined in accordance with GAAP. The
provisions of this Section 9.3 shall in no respect limit the obligations and
liabilities of each Note Guarantor to the Trustee and the Holders and each Note
Guarantor shall remain liable to the Trustee and the Holders for the full amount
guaranteed by such Note Guarantor hereunder.
Section 9.4. No Subrogation. Each Note Guarantor agrees
that it shall not be entitled to any right of subrogation in respect of any
Guaranteed Obligations until payment in full in cash or Cash Equivalents of all
Obligations and all obligations to which the Obligations are subordinated. If
any amount shall be paid to any Note Guarantor on account of such subrogation
rights at any time when all of the Obligations and all obligations to which the
Obligations are subordinated shall not have been paid in full in cash or Cash
Equivalents, such amount shall be held by such Note Guarantor in trust for the
Trustee and the Holders, segregated from other funds of such Note Guarantor, and
shall, forthwith upon receipt by such Note Guarantor, be turned over to the
Trustee in the exact form received by such Note Guarantor (duly endorsed by such
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Note Guarantor to the Trustee, if required), to be applied against the
Obligations or obligations to which the Obligations are subordinated.
Section 9.5. Additional Note Guarantees. The Company will
cause any Person that shall become a Material Domestic Subsidiary (an
"Additional Note Guarantor") to concurrently grant a guarantee (an "Additional
Note Guarantee") of the Company's obligations under this Indenture, any
applicable Registration Rights Agreement and the Notes to the same extent that
the Note Guarantors have guaranteed the Company's obligations under this
Indenture, the Issue Date Registration Rights Agreement and the Notes by
executing a Supplemental Indenture substantially in the form of Exhibit E;
provided, however, that each Additional Note Guarantor will be automatically and
unconditionally released and discharged from its obligations under such
Additional Note Guarantee only in accordance with Section 9.2.
ARTICLE X
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
provision required by the TIA shall control.
Section 10.2. Notices.
(a) Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail addressed as follows:
if to the Company or any Note Guarantor:
JLG Industries, Inc.
1 JLG Drive
McConnellsburg, PA 17233-9533
if to the Trustee:
The Bank of New York
Corporate Trust Administration
101 Barclay Street
New York, NY 10286
The Company, any Note Guarantor or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(b) Any notice or communication mailed to a registered
Holder shall be mailed to the Holder at the Holder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
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(c) Failure to mail a notice or communication to a Holder
or any defect in it shall not affect its sufficiency with respect to other
Holders. If a notice or communication is mailed in the manner provided above, it
is duly given, whether or not the addressee receives it.
(d) Any notice or communication delivered to the Company
under the provisions herein shall constitute notice to the Note Guarantors.
Section 10.3. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with
respect to their rights under this Indenture, the Notes or the Note Guarantees.
The Company, the Note Guarantors, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
Section 10.4. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
Section 10.5. Statements Required in Certificate or
Opinion. Each certificate or opinion, including any Opinion of Counsel, with
respect to compliance with a covenant or condition provided for in this
Indenture shall include:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters on an
Officers' Certificate or on certificates of public officials.
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Section 10.6. Rules by Trustee, Paying Agent and
Registrar. The Trustee may make reasonable rules for action by, or a meeting of,
Holders. The Registrar and the Paying Agent may make reasonable rules for their
functions.
Section 10.7. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or other day on which commercial banking institutions are
authorized or required to be closed in New York City. If a payment date is a
Legal Holiday, payment shall be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date shall not be affected.
Section 10.8. Governing Law, Waiver of Jury Trial, etc.
(a) THIS INDENTURE (INCLUDING EACH NOTE GUARANTEE) AND
THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS INDENTURE, EACH NOTE GUARANTEE OR THE NOTES OR ANY TRANSACTION RELATED
HERETO OR THERETO.
(b) The Company and each Note Guarantor hereby:
(i) agrees that any suit, action or proceeding against it
arising out of or relating to this Indenture
(including the Note Guarantees) or the Notes, as the
case may be, may be instituted in any Federal or
state court sitting in The City of New York,
(ii) waives to the fullest extent permitted by applicable
law, any objection which it may now or hereafter have
to the laying of venue of any such suit, action or
proceeding, and any claim that any suit, action or
proceeding in such a court has been brought in an
inconvenient forum,
(iii) irrevocably submits to the non-exclusive jurisdiction
of such courts in any suit, action or proceeding,
(iv) agrees that final judgment in any such suit, action
or proceeding brought in such a court shall be
conclusive and binding may be enforced in the courts
of the jurisdiction of which it is subject by a suit
upon judgment, and
(v) agrees that service of process by mail to the
addresses specified herein shall constitute personal
service of such process on it in any such suit,
action or proceeding.
(c) Nothing in this shall affect the right of the Trustee
or any Holder of the Notes to serve process in any other manner permitted by
law.
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Section 10.9. No Recourse Against Others. An incorporator,
director, officer, employee, stockholder or controlling person, as such, of the
Company or any Note Guarantor shall not have any liability for any obligations
of the Company under the Notes, this Indenture or the Note Guarantees or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Notes.
Section 10.10. Successors. All agreements of the Company
and the Note Guarantors in this Indenture and the Notes shall bind their
respective successors. All agreements of the Trustee in this Indenture shall
bind its successors.
Section 10.11. Duplicate and Counterpart Originals. The
parties may sign any number of copies of this Indenture. One signed copy is
enough to prove this Indenture. This Indenture may be executed in any number of
counterparts, each of which so executed shall be an original, but all of them
together represent the same agreement.
Section 10.12. Severability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.13. Qualification of Indenture. The Company
shall qualify this Indenture under the TIA in accordance with the terms and
conditions of the Issue Date Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys' fees and expenses for the
Company, the Note Guarantors, the Trustee and the Holders) incurred in
connection therewith, including, but not limited to, costs and expenses of
qualification of this Indenture and the Notes and printing this Indenture and
the Notes. The Trustee shall be entitled to receive from the Company any such
Officers' Certificates, Opinions of Counsel or other documentation as it may
reasonably request in connection with any such qualification of this Indenture
under the TIA.
Section 10.14. Table of Contents; Headings. The table of
contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.
84
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed
as of the date first written above.
JLG INDUSTRIES, INC.
By: ______________________________________
Name:
Title:
ACCESS FINANCIAL SOLUTIONS, INC.
By: _____________________________________
Name:
Title:
FULTON INTERNATIONAL, INC.
By: ______________________________________
Name:
Title:
JLG EQUIPMENT SERVICES, INC.
By: ______________________________________
Name:
Title:
JLG MANUFACTURING, LLC.
By: ______________________________________
Name:
Title:
GRADALL INDUSTRIES, INC..
By: ______________________________________
Name:
Title:
THE GRADALL COMPANY
By: ______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:_______________________________________
Name:
Title:
RULE 144A/REGULATION S
APPENDIX
PROVISIONS RELATING TO INITIAL NOTES,
PRIVATE EXCHANGE SECURITIES
AND EXCHANGE NOTES
1. Definitions.
1.1 Definitions.
Capitalized terms used but not otherwise defined in this Appendix shall
have the meanings assigned in the Indenture. For the purposes of this Appendix
the following terms shall have the meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Temporary Regulation S Global Note or beneficial
interest therein, the rules and procedures of DTC, Euroclear and Clearstream,
for such a Temporary Regulation S Global Note, in each case to the extent
applicable to such transaction and as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or any
successor Securities clearing agency.
"Definitive Note" means a certificated Initial Note or Exchange Note or
Private Exchange Security bearing, if required, the restricted notes legend set
forth in Section 2.3(e).
"Distribution Compliance Period", with respect to any Securities, means
the period of 40 consecutive days beginning on and including the later of (i)
the day on which such Securities are first offered to Persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S and (ii) the Issue Date with respect to such Securities.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System, or any successor notes clearing agency.
"Exchange Notes" means (1) the 8-1/4% Senior Notes due 2008 issued
pursuant to the Indenture in connection with a Registered Exchange Offer
pursuant to a Registration Rights Agreement and (2) Additional Notes, if any,
issued pursuant to a registration statement filed with the SEC under the
Securities Act.
"Initial Purchasers" means (1) with respect to the Initial Notes issued
on the Issue Date, Credit Suisse First Boston LLC, Deutsche Bank Securities,
Inc., Banc One Capital Markets, Inc., BMO Nesbitt Burns Corp., Credit Lyonnais
Securities (USA) Inc., NatCity Investments, Inc. and SunTrust Capital Markets,
Inc. and (2) with respect to each issuance of Additional Notes, the Persons
purchasing such Additional Notes under the related Purchase Agreement.
2
"Initial Notes" means (1) US$125 million aggregate principal amount of
8-1/4% Senior Notes due 2008 issued on the Issue Date and (2) Additional Notes,
if any, issued in a transaction exempt from the registration requirements of the
Securities Act.
"Notes Custodian" means the custodian with respect to a Global Note (as
appointed by DTC), or any successor Person thereto and shall initially be the
Trustee.
"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 Securities.
"Private Exchange Securities" means any 8-1/4% Senior Notes due 2008
issued in connection with a Private Exchange.
"Purchase Agreement" means (1) with respect to the Initial Notes issued
on the Issue Date, the Purchase Agreement dated April 30, 2003, among the
Company, the Subsidiary Guarantors, the Initial Purchasers and the Trustee and
(2) with respect to each issuance of Additional Notes, the purchase agreement or
underwriting agreement among the Company, the Subsidiary Guarantors, the Trustee
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 the Initial Notes, a like aggregate
principal amount of Exchange Notes registered under the Securities Act.
"Rule 144A Notes" means all Initial Notes offered and sold to QIBs in
reliance on Rule 144A.
"Securities" means the Initial Notes, the Exchange Notes and the
Private Exchange Securities, treated as a single class.
"Shelf Registration Statement" means the registration statement issued
by the Company in connection with the offer and sale of Initial Notes or Private
Exchange Securities pursuant to a Registration Rights Agreement.
"Transfer Restricted Notes" means Notes that bear or are required to
bear the legend relating to restrictions on transfer relating to the Securities
Act set forth in Section 2.3(e) hereto.
3
1.2 Other Definitions.
Defined in
Term Section:
---- --------
"Agent Members"............................................ 2.1(b)
"Global Notes"............................................. 2.1(a)
"Permanent Regulation S Global Note........................ 2.1(a)
"Regulation S"............................................. 2.1(a)
"Rule 144A"................................................ 2.1(a)
"Rule 144A Global Note..................................... 2.1(a)
"Temporary Regulation S Global Note........................ 2.1(a)
2. The Notes.
2.1 (a) Form and Dating. The Initial Notes will be offered and sold by
the Company pursuant to a Purchase Agreement. The Initial Notes will be resold
initially only to (i) QIBs in reliance on Rule 144A under the Securities Act
("Rule 144A") and (ii) Persons other than U.S. Persons (as defined in Regulation
S) in reliance on Regulation S under the Securities Act ("Regulation S").
Initial Notes may thereafter be transferred to, among others, QIBs and
purchasers in reliance on Regulation S, subject to the restrictions on transfer
set forth herein. Initial Notes initially resold pursuant to Rule 144A shall be
issued initially in the form of one or more permanent global Notes in
definitive, fully registered form (collectively, the "Rule 144A Global Note")
and Initial Notes initially resold pursuant to Regulation S shall be issued
initially in the form of one or more temporary global Notes in definitive, fully
registered form (collectively, the "Temporary Regulation S Global Note"), in
each case without interest coupons and with the global Notes legend and
restricted Notes legend set forth in Exhibit 1 hereto, which shall be deposited
on behalf of the purchasers of the Initial Notes represented thereby with the
Notes Custodian, and registered in the name of DTC or a nominee of DTC, duly
executed by the Company and authenticated by the Trustee as provided in this
Indenture. Beneficial ownership interests in the Temporary Regulation S Global
Note will not be exchangeable for interests in the Rule 144A Global Note, a
permanent global Note (the "Permanent Regulation S Global Note"), or any other
Note without a legend containing restrictions on transfer of such Note prior to
the expiration of the Distribution Compliance Period and then only upon
certification in form reasonably satisfactory to the Trustee that beneficial
ownership interests in such Temporary Regulation S Global Note are owned either
by non-U.S. persons or U.S. persons who purchased such interests in a
transaction that did not require registration under the Securities Act. The Rule
144A Global Note, the Temporary Regulation S Global Note and the Permanent
Regulation S Global Note are collectively referred to herein as "Global Notes".
The aggregate principal amount of the Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee and DTC
or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a
Global Note deposited with or on behalf of DTC.
4
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(b), authenticate and deliver initially one or more Global Notes
that (a) shall be registered in the name of DTC for such Global Note or Global
Notes or the nominee of DTC and (b) shall be delivered by the Trustee to DTC or
pursuant to DTC's instructions or held by the Trustee as custodian for DTC.
Members of, or participants in, DTC ("Agent Members") shall have no
rights under this Indenture with respect to any Global Note held on their behalf
by DTC or by the Trustee as the custodian of DTC or under such Global Note, and
the Company, the Trustee and any agent of the Company or the Trustee shall be
entitled to treat DTC as the absolute owner of such Global Note 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
DTC or impair, as between DTC and its Agent Members, the operation of customary
practices of DTC governing the exercise of the rights of a holder of a
beneficial interest in any Global Note.
(c) Certificated Notes. Except as provided in this Section 2.1 or
Section 2.3 or 2.4, owners of beneficial interests in Global Notes shall not be
entitled to receive physical delivery of Definitive Notes.
2.2 Authentication. The Trustee shall authenticate and deliver: (1) on
the Issue Date, an aggregate principal amount of US$125 million 8-1/4% Senior
Notes due 2008, (2) any Additional Notes for an original issue in an aggregate
principal amount specified in the Company Order pursuant to Section 2.2 of the
Indenture and (3) Exchange Notes or Private Exchange Securities for issue only
in a Registered Exchange Offer or a Private Exchange, respectively, pursuant to
a Registration Rights Agreement, for a like principal amount of Initial Notes,
in each case upon a Company Order. 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 any issuance of Additional Notes
pursuant to Section 2.12 of the Indenture, shall certify that such issuance is
in compliance with Section 3.9 of the Indenture.
2.3 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented to the Registrar or a co-registrar with a request:
(x) to register the transfer of such Definitive Notes; or
(y) to exchange such Definitive Notes for an equal principal
amount of Definitive Notes of other authorized denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Notes surrendered for transfer or
exchange:
5
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar or co-registrar, duly executed by the Holder thereof
or its attorney duly authorized in writing; and
(ii) if such Definitive Notes are required to bear a
restricted Notes legend, they are being transferred or exchanged
pursuant to an effective registration statement under the Securities
Act, pursuant to Section 2.3(b) or pursuant to clause (A), (B) or (C)
below, and are accompanied by the following additional information and
documents, as applicable:
(A) if such Definitive Notes are being delivered to the
Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from
such Holder to that effect; or
(B) if such Definitive Notes are being transferred to the
Company, a certification to that effect; or
(C) if such Definitive Notes are being transferred (x)
pursuant to an exemption from registration in
accordance with Rule 144A, Regulation S or Rule 144
under the Securities Act,; or (y) in reliance upon
another exemption from the requirements of the
Securities Act: (i) a certification to that effect
(in the form set forth in Exhibits B, C or D, as
applicable) and (ii) if the Company so requests, an
opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the
restrictions set forth in the legend set forth in
Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be exchanged for a
beneficial interest in a Rule 144A Global Note or a Permanent Regulation S
Global Note except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee,
together with:
(i) certification, in the form set forth in Exhibit B or C, as
applicalbe, that such Definitive Note is either (A) being transferred
to a QIB in accordance with Rule 144A or (B) is being transferred after
expiration of the Distribution Compliance Period by a Person who
initially purchased such Note in reliance on Regulation S to a buyer
who elects to hold its interest in such Note in the form of a
beneficial interest in the Permanent Regulation S Global Note; and
(ii) written instructions directing the Trustee to make, or to
direct the Notes Custodian to make, an adjustment on its books and
records with respect to such Rule 144A Global Note (in the case of a
transfer pursuant to clause (b)(i)(A)) or Permanent Regulation S Global
Note (in the case of a transfer
6
pursuant to clause (b)(i)(B)) to reflect an increase in the aggregate
principal amount of the Notes represented by the Rule 144A Global Note
or Permanent Regulation S Global Note, as applicable, such instructions
to contain information regarding the DTC account to be credited with
such increase,
then the Trustee shall cancel such Definitive Note and cause, or direct the
Notes Custodian to cause, in accordance with the standing instructions and
procedures existing between DTC and the Notes Custodian, the aggregate principal
amount of Notes represented by the Rule 144A Global Note or Permanent Regulation
S Global Note, as applicable, to be increased by the aggregate principal amount
of the Definitive Note to be exchanged and shall credit or cause to be credited
to the account of the Person specified in such instructions a beneficial
interest in the Rule 144A Global Note or Permanent Regulation S Global Note, as
applicable, equal to the principal amount of the Definitive Note so cancelled.
If no Rule 144A Global Notes or Permanent Regulation S Global Notes, as
applicable, are then outstanding, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an Officers'
Certificate of the Company, a new Rule 144A Global Note or Permanent Regulation
S Global Note, as applicable, in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. (i) The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through DTC, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of DTC
therefor. A transferor of a beneficial interest in a Global Note shall deliver
to the Registrar a written order given in accordance with DTC's procedures
containing information regarding the participant account of DTC to be credited
with a beneficial interest in the Global Note. The Registrar shall, in
accordance with such instructions, instruct DTC to credit to the account of the
Person specified in such instructions a beneficial interest in the Global Note
and to debit the account of the Person making the transfer the beneficial
interest in the Global Note being transferred.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Note to a beneficial interest in another Global
Note, the Registrar shall reflect on its books and records the date and
an increase in the principal amount of the Global Note to which such
interest is being transferred in an amount equal to the principal
amount of the interest to be so transferred, and the Registrar shall
reflect on its books and records the date and a corresponding decrease
in the principal amount of the Global Note from which such interest is
being transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Note may
not be transferred as a whole except by DTC to a nominee of DTC or by a
nominee of DTC to DTC or another nominee of DTC or by DTC or any such
nominee to a successor DTC or a nominee of such successor DTC.
(iv) In the event that a Global Note is exchanged for
Definitive Notes pursuant to Section 2.4 of this Appendix, prior to the
consummation of a
7
Registered Exchange Offer or the effectiveness of a Shelf Registration
Statement with respect to such Notes, such Notes may be exchanged only
in accordance with such procedures as are substantially consistent with
the provisions of this Section 2.3 (including the certification
requirements set forth in Exhibit B or C, as applicable, 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.
(d) Restrictions on Transfer of Temporary Regulation S Global Notes.
During the Distribution Compliance Period, beneficial ownership interests in
Temporary Regulation S Global Notes may only be sold, pledged or transferred
through Euroclear or Clearstream in accordance with the Applicable Procedures
and only (i) to the Company, (ii) so long as such Note is eligible for resale
pursuant to Rule 144A, to a Person whom the selling holder reasonably believes
is a QIB that purchases for its own account or for the account of a QIB to whom
notice is given that the resale, pledge or transfer is being made in reliance on
Rule 144A, (iii) in an offshore transaction in accordance with Regulation S,
(iv) pursuant to an exemption from registration under the Securities Act
provided by Rule 144 (if applicable) under the Securities Act or (v) pursuant to
an effective registration statement under the Securities Act, in each case in
accordance with any applicable Notes laws of any state of the United States.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Note certificate evidencing the Global Notes (and
all Notes issued in exchange therefor or in substitution thereof) shall
bear a legend in substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY (II) IN THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER
8
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (IV) PURSUANT TO EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE)
OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES AND OTHER JURISDICTIONS, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
Each Definitive Note will also bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a Global Note)
pursuant to Rule 144 under the Securities Act, the Registrar shall
permit the transferee thereof to exchange such Transfer Restricted Note
for a certificated Note that does not bear the legend set forth above
and rescind any restriction on the transfer of such Transfer Restricted
Note, if the transferor thereof certifies in writing to the Registrar
that such sale or transfer was made in reliance on Rule 144 (such
certification to be in the form set forth in Exhibit D) and delivers an
opinion of counsel reasonably satisfactory to the Registrar.
(iii) After a transfer of any Initial Notes or Private
Exchange Securities pursuant to and during the period of the
effectiveness of a Shelf Registration Statement with respect to such
Initial Notes or Private Exchange Securities, as the case may be, all
requirements pertaining to legends relating to the restrictions on
transfer relating to the Securities Act on such Initial Note or such
Private Exchange Security will cease to apply, the requirements
requiring any such Initial Note or such Private Exchange Security
issued to certain Holders be issued in global form will cease to apply,
and a certificated Initial Note or Private Exchange Security or an
Initial Note or Private Exchange Security in global form, in each case
without restrictive transfer legends, will be available to the
transferee of the Holder of such Initial Notes or Private Exchange
Securities upon exchange of such transferring Holder's certificated
Initial Note or Private Exchange Security
9
or appropriate directions to transfer such Holder's interest in the
Global Note, as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Notes, all requirements pertaining to such
Initial Notes that Initial Notes issued to certain Holders be issued in
global form will still apply with respect to Holders of such Initial
Notes that do not exchange their Initial Notes, and Exchange Notes in
certificated or global form, in each case without the restrictive Notes
legend relating to the restrictions on transfer relating to the
Securities Act 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, all requirements pertaining to such Initial Notes
that Initial Notes issued to certain Holders be issued in global form
will still apply with respect to Holders of such Initial Notes that do
not exchange their Initial Notes, and Private Exchange Securities in
global form with the global Notes legend and the Restricted Notes
Legend set forth in Exhibit 1 hereto will be available to Holders that
exchange such Initial Notes in such Private Exchange.
(f) Cancellation or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have either been exchanged for Definitive
Notes, purchased or canceled, such Global Note shall be returned to DTC for
cancellation or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for
certificated Notes, purchased or canceled, the principal amount of Notes
represented by such Global Note shall be reduced and an adjustment shall be made
on the books and records of the Trustee (if it is then the Notes Custodian for
such Global Note) with respect to such Global Note, by the Trustee or the Notes
Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of Notes.
(i) To permit registrations of transfers and exchanges made in
accordance with the Indenture, the Company shall execute and the
Trustee shall authenticate Definitive Notes and Global Notes at the
Registrar's or co registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any 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 3.8, 3.11, 3.12 and 8.5
of the Indenture).
(iii) The Registrar or co registrar shall not be required to
register the transfer of or exchange of any Note for a period beginning
15 Business Days
10
before the mailing of a notice of an offer to repurchase Notes or 15
Business Days 10 before an interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent, the
Registrar or any co-Registrar may deem and treat the person in whose
name a Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of, and interest on, such
Note and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Company, the Trustee, the Paying Agent, the
Registrar or any co registrar shall be affected by notice to the
contrary.
(v) All Notes issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Note, a member of, or a participant in
DTC or other Person with respect to the accuracy of the records of DTC
or its nominee or of any participant or member thereof, with respect to
any ownership interest in the Notes or with respect to the delivery to
any participant, member, beneficial owner or other Person (other than
DTC) of any notice or the payment of any amount, under or with respect
to such Notes. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Notes shall be
given or made only to or upon the order of the registered Holders
(which shall be DTC or its nominee in the case of a Global Note). The
rights of beneficial owners in any Global Note shall be exercised only
through DTC subject to the applicable rules and procedures of DTC. The
Trustee may rely and shall be fully protected in relying upon
information furnished by DTC with respect to its members, participants
and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Note (including any transfers
between or among DTC participants, members or beneficial owners in any
Global Note) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do
so if and when expressly required by, the terms of this Indenture, and
to examine the same to determine substantial compliance as to form with
the express requirements hereof.
11
2.4 Certificated Notes.
(a) A Global Note deposited with DTC or with the Trustee as Notes
Custodian for DTC pursuant to Section 2.1 shall be transferred to the beneficial
owners thereof in the form of Definitive Notes in an aggregate principal amount
equal to the principal amount of such Global Note, in exchange for such Global
Note, only if such transfer complies with Section 2.3 hereof and (i) DTC
notifies the Company that it is unwilling or unable to continue as depository
for such Global Note and DTC fails to appoint a successor depositary or if at
any time DTC ceases to be a "clearing agency" registered under the Exchange Act
and, in either case, a successor depository is not appointed by the Company
within 90 days of such notice, or (ii) an Event of Default has occurred and is
continuing or (iii) the Company, in its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Notes under this
Indenture.
(b) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this Section shall be surrendered by DTC to the Trustee
located at its principal corporate trust office in the Borough of Manhattan, The
City of New York, 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 Note, an equal aggregate principal
amount of Definitive Notes of authorized denominations. Any portion of a Global
Note transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of US$1,000 principal amount and any integral
multiple thereof and registered in such names as DTC shall direct. Any
Definitive Note delivered in exchange for an interest in the Transfer Restricted
Note shall, except as otherwise provided by Section 2.3(e) hereof, bear the
restricted Notes legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b) hereof, the registered
Holder of a Global Note shall be entitled to 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 Notes.
(d) In the event of the occurrence of one of the events specified in
Section 2.4(a) hereof, the Company shall promptly make available to the Trustee
a reasonable supply of Definitive Notes in definitive, fully registered form
without interest coupons.
EXHIBIT 1
to
RULE 144A/REGULATION S APPENDIX
FORM OF NOTE
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[[FOR REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER
THE LATER OF THE COMMENCEMENT AND THE CLOSING OF THE OFFERING, AN OFFER OR SALE
OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE U.S.
SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES
ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A
THEREUNDER.]
[Restricted Notes Legend]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
2
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO THE COMPANY (II) WITHIN THE UNITED STATES TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT
TO EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND OTHER
JURISDICTIONS, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
[Temporary Regulation S Global Note Legend]
EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN
THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR
INTERESTS IN THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY
REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT
CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF
THE "40 DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE
903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON
CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH
BENEFICIAL INTERESTS ARE OWNED EITHER BY NON U.S. PERSONS OR U.S. PERSONS WHO
PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT. DURING SUCH 40 DAY DISTRIBUTION COMPLIANCE PERIOD,
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY
MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR BANK S.A./N.A., AS
OPERATOR OF THE EUROCLEAR SYSTEM OR CLEARSTREAM BANKING, SOCIETE ANONYME AND
ONLY (I) TO THE ISSUER, (II) WITHIN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (III) OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN
ACCORDANCE
3
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND OTHER
JURISDICTIONS. HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
SECURITY WILL NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS
REFERRED TO ABOVE, IF THEN APPLICABLE.
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
SECURITY MAY BE EXCHANGED FOR INTERESTS IN A RULE 144A GLOBAL SECURITY ONLY IF
(1) SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN
COMPLIANCE WITH RULE 144A, AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL
SECURITY FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE TO THE EFFECT THAT
THE REGULATION S GLOBAL SECURITY IS BEING TRANSFERRED (A) TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A (B) TO A PERSON WHO IS PURCHASING FOR ITS OWN ACCOUNT OR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL SECURITY MAY BE
TRANSFERRED TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE
REGULATION S GLOBAL SECURITY, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE 40
DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO THE
TRUSTEE A WRITTEN CERTIFICATE TO THE EFFECT THAT IF SUCH TRANSFER IS BEING MADE
IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S OR RULE 144 (IF AVAILABLE)
AND THAT, IF SUCH TRANSFER OCCURS PRIOR TO THE EXPIRATION OF THE 40 DAY
DISTRIBUTION COMPLIANCE PERIOD, THE INTEREST TRANSFERRED WILL BE HELD
IMMEDIATELY THEREAFTER THROUGH EUROCLEAR BANK S.A./N.A. OR CLEARSTREAM BANKING
SOCIETE ANONYME.
[Definitive Notes Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
FORM OF FACE OF NOTE
No. [___] Principal Amount $[______________]
[If the Note is a Global Note include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto]
CUSIP NO. [__________]
ISIN NO. [___________]
JLG Industries, Inc., a Pennsylvania corporation, promises to
pay to [___________], or registered assigns, the principal sum of
[__________________] Dollars [If the Note is a Global Note, add the following,
as revised by the Schedule of Increases and Decreases in Global Note attached
hereto], on May 1, 2008.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
2
Additional provisions of this Note are set forth on the other
side of this Note.
JLG INDUSTRIES, INC.
By:__________________________________
Name:
Title:
By: _________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
The Bank of New York, as
Trustee, certifies that this is one
of the Notes referred to in the
Indenture.
By: ________________________________
Authorized Signatory Date: _______________________________
FORM OF REVERSE SIDE OF NOTE
8-1/4% SENIOR NOTES DUE 2008
1. Interest
JLG Industries, Inc., a Pennsylvania corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, the "Company"), promises to pay interest on the principal amount of
this Note at the rate per annum shown above.
The Company will pay interest semiannually in arrears on each
Interest Payment Date of each year commencing November 1, 2003. Interest on the
Notes will accrue from the most recent date to which interest has been paid on
the Notes or, if no interest has been paid, from and including the Issue Date.
The Company shall pay interest on overdue principal (plus interest on such
interest to the extent lawful), at the rate borne by the Notes to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and,
to the extent such payments are lawful, interest on overdue installments of
interest ("Defaulted Interest") without regard to any applicable grace periods
at the rate of 2.0% per annum in excess of the rate shown on this Note, as
provided in the Indenture.
2. Method of Payment
Prior to 10:00 a.m. New York City time on the date on which
any principal of or interest on any Note is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay
such principal and/or interest. The Company will pay interest (except Defaulted
Interest) to the Persons who are registered Holders of Notes at the close of
business on the Record Date preceding the Interest Payment Date even if Notes
are canceled or repurchased after the Record Date and on or before the relevant
Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company will pay principal and interest in U.S. Legal
Tender.
Payments in respect of Notes represented by a Global Note
(including principal and interest) will be made by the transfer of immediately
available funds to the accounts specified by DTC. The Company will make all
payments in respect of a Certificated Note (including principal and interest) by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the Notes may also be made, in the case of a Holder of
at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than
2
15 days immediately preceding the relevant due date for payment (or such other
date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, The Bank of New York (the "Trustee"), will act as
Trustee, Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-Registrar without notice to any Holder. The
Company or any Note Guarantor may act as Paying Agent, Registrar or
co-Registrar.
4. Indenture; Guarantees
The Company issued the Notes under an Indenture, dated as of
May 5, 2003 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), between the Company, the
Note Guarantors and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the TIA.
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all such terms, and Holders
are referred to the Indenture and the TIA for a statement of those terms. Each
Holder by accepting a Note, agrees to be bound by all of the terms and
provisions of the Indenture, as amended or supplemented from time to time.
The Notes are general unsecured obligations of the Company
limited to $225,000,000 aggregate principal amount, of which $125,000,000 in
aggregate principal amount will be initially issued on the Issue Date. Subject
to the conditions set forth in the Indenture and without the consent of the
Holders, the Company may issue Additional Notes of up to an additional
$100,000,000 aggregate principal amount of 8-1/4% Senior Notes Due 2008. All
Notes will be treated as a single class of securities under the Indenture.
The Indenture imposes certain limitations on, among other
things, the ability of the Company and its Restricted Subsidiaries to: Incur
Indebtedness, make Restricted Payments, incur Liens, make Asset Sales, enter
into Sale and Leaseback Transactions, enter into transactions with Affiliates,
or consolidate or merge or transfer or convey all or substantially all of the
Company's and its Restricted Subsidiaries' assets.
To guarantee the due and punctual payment of the principal of,
premium and interest on the Notes and all other amounts payable by the Company
under the Indenture and the Notes when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Notes and the Indenture, Access Financial Solutions, Inc., Fulton International,
Inc., JLG Equipment Services, Inc., JLG Manufacturing, LLC, Gradall Industries,
Inc. and The Gradall Company have unconditionally guaranteed (and each future
Material Domestic Subsidiary will unconditionally guarantee), jointly and
severally, such obligations pursuant to the terms of the Indenture. Each Note
Guarantee will be subject to release as provided in the Indenture.
3
5. Repurchase Provisions
Change Of Control Offer. Upon the occurrence of a Change of
Control, each Holder of Notes will have the right to require that the Company
purchase all or a portion (in integral multiples of $1,000) of the Holder's
Notes at a purchase price equal to 101% of the principal amount thereof, plus
accrued and unpaid interest to, but excluding, the date of purchase. Within 20
days following the date upon which the Change of Control occurred, the Company
must make a Change of Control Offer pursuant to a Change of Control Offer
Notice. As more fully described in the Indenture, the Change of Control Offer
Notice shall state, among other things, the Change of Control Payment Date,
which must be a Business Day no earlier than 30 calendar days nor later than 60
calendar days from the date the notice is mailed, other than as may be required
by law.
Asset Sale Offer. The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries to make Asset Sales.
In the event the proceeds from a permitted Asset Sale exceed certain amounts and
are not applied as specified in the Indenture, the Company will be required to
make an Asset Sale Offer to purchase to the extent of such remaining proceeds
each Holder's Notes, and at the Company's option, on a pro rata basis other
Senior Indebtedness with similar provisions requiring the Company to offer to
purchase the Senior Indebtedness with the proceeds of Asset Sales, at 100% of
the principal amount thereof, plus accrued interest (if any) to, but excluding,
the Asset Sale Offer Payment Date, as more fully set forth in the Indenture.
6. Denominations; Transfer; Exchange
The Notes are in fully registered form without coupons, and
only in denominations of principal amount of $1,000 and any integral multiple
thereof. A Holder may transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange of any Note for a period beginning 15 Business Days
before the mailing of a notice of an offer to repurchase Notes or 15 Business
Days before an interest payment date.
7. Persons Deemed Owners
The registered holder of this Note may be treated as the owner
of it for all purposes.
8. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
4
9. Discharge Prior to Maturity
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Company deposits with the Trustee U.S. Legal Tender or
U.S. Government Obligations for the payment of principal of and interest on the
Notes to maturity.
10. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in principal amount of the then
Outstanding Notes and (ii) any default (other than with respect to nonpayment or
in respect of a provision that cannot be amended or supplemented without the
written consent of each Holder affected) or noncompliance with any provision may
be waived with the written consent of the Holders of a majority in aggregate
principal amount of the then Outstanding Notes. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, omission, defect or inconsistency, or to comply with
Article IV of the Indenture, or to provide for uncertificated Notes in addition
to or in place of certificated Notes, or to add guarantees with respect to the
Notes or to secure the Notes, or to add additional covenants or surrender rights
and powers conferred on the Company, or to comply with any request of the SEC in
connection with qualifying the Indenture under the TIA, or to make any change
that does not adversely affect the rights of any Holder, or to provide for the
issuance of Exchange Notes or Additional Notes.
11. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Notes may declare all
the Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Notes being due and
payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the
Outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
5
12. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
13. No Recourse Against Others
An incorporator, director, officer, employee, stockholder or
controlling person, as such, of the Company or any Note Guarantor shall not have
any liability for any obligations of the Company under the Notes, the Indenture
or any Note Guarantee or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
14. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
15. Abbreviations
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
16. 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. 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 placed thereon.
17. ISIN Numbers
The Company has caused ISIN numbers to be printed on 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
placed thereon.
6
18. Governing Law
This Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to:
JLG Industries, Inc.
1 JLG Drive
McConnellsburg, PA 17233-9533
Attention: Corporate Secretary
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. Number)
and irrevocably appoint _________________ agent to transfer this Note on the
books of the Company. The agent may substitute another to act for him.
Date: _____________________ Your Signature:___________________________
Signature Guarantee:_______________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Exchange Act Rule 17Ad-15.
[To be attached to Global Notes only]:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Principal
Amount of Amount of Amount of this Signature of
decrease in increase in Global Note authorized
Principal Principal following such signatory of
Date of Amount of this Amount of this decrease or Trustee or Note
Exchange Global Note Global Note increase Custodian
- -------- -------------- -------------- -------------- ---------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 3.8 or Section 3.11 of the Indenture, check either
box:
[ ] [ ]
SECTION 3.8 SECTION 3.11
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 3.8 or Section 3.11 of the Indenture, state
the principal amount (which must be an integral multiple of $1,000) that you
want to have purchased by the Company: $
Date:_________ Your Signature________________________________________
(Sign exactly as your name appears on the other side of the Note)
Signature Guarantee:_______________________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Exchange Act Rule 17Ad-15.
EXHIBIT A
FORM OF FACE OF EXCHANGE NOTE
OR PRIVATE EXCHANGE SECURITY */**/
- ------------------------
*/ If the Note is to be issued in global form add the Global Notes Legend from
Exhibit 1 to Appendix A and the attachment from such Exhibit 1 captioned "[TO BE
ATTACHED TO GLOBAL NOTES] - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE".
**/ If the Note is a Private Exchange Security issued in a Private Exchange to
an Initial Purchaser holding an unsold portion of its initial allotment, add the
Restricted Notes Legend from Exhibit 1 to Appendix A and replace the Assignment
Form included in this Exhibit A with the Assignment Form included in such
Exhibit 1.
FORM OF FACE OF NOTE
No. [___] Principal Amount $[______________]
[If the Note is a Global Note include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto]
CUSIP NO. [__________]
ISIN NO. [___________]
JLG Industries, Inc., a Pennsylvania corporation, promises to
pay to [___________], or registered assigns, the principal sum of
[__________________] Dollars [If the Note is a Global Note, add the following,
as revised by the Schedule of Increases and Decreases in Global Note attached
hereto], on May 1, 2008.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
2
Additional provisions of this Note are set forth on the other
side of this Note.
JLG INDUSTRIES, INC.
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
The Bank of New York, as
Trustee, certifies that this is one
of the Notes referred to in the
Indenture.
By: ________________________________
Authorized Signatory Date: __________________________
FORM OF REVERSE SIDE OF NOTE
8-1/4% SENIOR NOTES DUE 2008
1. Interest
JLG Industries, Inc., a Pennsylvania corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, the "Company"), promises to pay interest on the principal amount of
this Note at the rate per annum shown above.
The Company will pay interest semiannually in arrears on each
Interest Payment Date of each year commencing November 1, 2003. Interest on the
Notes will accrue from the most recent date to which interest has been paid on
the Notes or, if no interest has been paid, from and including the Issue Date.
The Company shall pay interest on overdue principal (plus interest on such
interest to the extent lawful), at the rate borne by the Notes to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and,
to the extent such payments are lawful, interest on overdue installments of
interest ("Defaulted Interest") without regard to any applicable grace periods
at the rate of 2.0% per annum in excess of the rate shown on this Note, as
provided in the Indenture.
2. Method of Payment
Prior to 10:00 a.m. New York City time on the date on which
any principal of or interest on any Note is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay
such principal and/or interest. The Company will pay interest (except Defaulted
Interest) to the Persons who are registered Holders of Notes at the close of
business on the Record Date preceding the Interest Payment Date even if Notes
are canceled or repurchased after the Record Date and on or before the relevant
Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company will pay principal and interest in U.S. Legal
Tender.
Payments in respect of Notes represented by a Global Note
(including principal and interest) will be made by the transfer of immediately
available funds to the accounts specified by DTC. The Company will make all
payments in respect of a Certificated Note (including principal and interest) by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the Notes may also be made, in the case of a Holder of
at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than
2
15 days immediately preceding the relevant due date for payment (or such other
date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, The Bank of New York (the "Trustee"), will act as
Trustee, Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-Registrar without notice to any Holder. The
Company or any Note Guarantor may act as Paying Agent, Registrar or
co-Registrar.
4. Indenture; Guarantees
The Company issued the Notes under an Indenture, dated as of
May 5, 2003 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), between the Company, the
Note Guarantors and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the TIA.
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all such terms, and Holders
are referred to the Indenture and the TIA for a statement of those terms. Each
Holder by accepting a Note, agrees to be bound by all of the terms and
provisions of the Indenture, as amended or supplemented from time to time.
The Notes are general unsecured obligations of the Company
limited to $225,000,000 aggregate principal amount, of which $125,000,000 in
aggregate principal amount will be initially issued on the Issue Date. Subject
to the conditions set forth in the Indenture and without the consent of the
Holders, the Company may issue Additional Notes of up to an additional
$100,000,000 aggregate principal amount of 8-1/4% Senior Notes Due 2008. All
Notes will be treated as a single class of securities under the Indenture.
The Indenture imposes certain limitations on, among other
things, the ability of the Company and its Restricted Subsidiaries to: Incur
Indebtedness, make Restricted Payments, incur Liens, make Asset Sales, enter
into Sales and Leaseback Transactions, enter into transactions with Affiliates,
or consolidate or merge or transfer or convey all or substantially all of the
Company's and its Restricted Subsidiaries' assets.
To guarantee the due and punctual payment of the principal of,
premium and interest on the Notes and all other amounts payable by the Company
under the Indenture and the Notes when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Notes and the Indenture, Access Financial Solutions, Inc., Fulton International,
Inc., JLG Equipment Services, Inc., JLG Manufacturing, LLC, Gradall Industries,
Inc. and The Gradall Company have unconditionally guaranteed (and each future
Material Domestic Subsidiary will unconditionally guarantee), jointly and
severally, such obligations pursuant to the terms of the Indenture. Each Note
Guarantee will be subject to release as provided in the Indenture.
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5. Repurchase Provisions
Change Of Control Offer. Upon the occurrence of a Change of
Control, each Holder of Notes will have the right to require that the Company
purchase all or a portion (in integral multiples of $1,000) of the Holder's
Notes at a purchase price equal to 101% of the principal amount thereof, plus
accrued and unpaid interest to, but excluding, the date of purchase. Within 20
days following the date upon which the Change of Control occurred, the Company
must make a Change of Control Offer pursuant to a Change of Control Offer
Notice. As more fully described in the Indenture, the Change of Control Offer
Notice shall state, among other things, the Change of Control Payment Date,
which must be a Business Day no earlier than 30 calendar days nor later than 60
calendar days from the date the notice is mailed, other than as may be required
by law.
Asset Sale Offer. The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries to make Asset Sales.
In the event the proceeds from a permitted Asset Sale exceed certain amounts and
are not applied as specified in the Indenture, the Company will be required to
make an Asset Sale Offer to purchase to the extent of such remaining proceeds
each Holder's Notes, and at the Company's option, on a pro rata basis other
Senior Indebtedness with similar provisions requiring the Company to offer to
purchase the Senior Indebtedness with the proceeds of Asset Sales, at 100% of
the principal amount thereof, plus accrued interest (if any) to, but excluding,
the Asset Sale Offer Payment Date, as more fully set forth in the Indenture.
6. Denominations; Transfer; Exchange
The Notes are in fully registered form without coupons, and
only in denominations of principal amount of $1,000 and any integral multiple
thereof. A Holder may transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange of any Note for a period beginning 15 Business Days
before the mailing of a notice of an offer to repurchase Notes or 15 Business
Days before an interest payment date.
7. Persons Deemed Owners
The registered holder of this Note may be treated as the owner
of it for all purposes.
8. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
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9. Discharge Prior to Maturity
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Company deposits with the Trustee U.S. Legal Tender or
U.S. Government Obligations for the payment of principal of and interest on the
Notes to maturity.
10. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in principal amount of the then
Outstanding Notes and (ii) any default (other than with respect to nonpayment or
in respect of a provision that cannot be amended or supplemented without the
written consent of each Holder affected) or noncompliance with any provision may
be waived with the written consent of the Holders of a majority in aggregate
principal amount of the then Outstanding Notes. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, omission, defect or inconsistency, or to comply with
Article IV of the Indenture, or to provide for uncertificated Notes in addition
to or in place of certificated Notes, or to add guarantees with respect to the
Notes or to secure the Notes, or to add additional covenants or surrender rights
and powers conferred on the Company, or to comply with any request of the SEC in
connection with qualifying the Indenture under the TIA, or to make any change
that does not adversely affect the rights of any Holder, or to provide for the
issuance of Exchange Notes or Additional Notes.
11. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Notes may declare all
the Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Notes being due and
payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the
Outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
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12. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
13. No Recourse Against Others
An incorporator, director, officer, employee, stockholder or
controlling person, as such, of the Company or any Note Guarantor shall not have
any liability for any obligations of the Company under the Notes, the Indenture
or any Note Guarantee or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
14. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
15. Abbreviations
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
16. 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. 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 placed thereon.
17. ISIN Numbers
The Company has caused ISIN numbers to be printed on 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
placed thereon.
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18. Governing Law
This Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to:
JLG Industries, Inc.
1 JLG Drive
McConnellsburg, PA 17233-9533
Attention: Corporate Secretary
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. Number)
and irrevocably appoint _________________ agent to transfer this Note on the
books of the Company. The agent may substitute another to act for him.
Date:______________________ Your Signature:_____________________________
Signature Guarantee:__________________________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Exchange Act Rule 17Ad-15.
[To be attached to Global Notes only]:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Principal
Amount of Amount of Amount of this Signature of
decrease in increase in Global Note authorized
Principal Principal following such signatory of
Date of Amount of this Amount of this decrease or Trustee or Note
Exchange Global Note Global Note increase Custodian
- -------- -------------- -------------- -------------- ---------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 3.8 or Section 3.11 of the Indenture, check either
box:
[ ] [ ]
SECTION 3.8 SECTION 3.11
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 3.8 or Section 3.11 of the Indenture, state
the principal amount (which must be an integral multiple of $1,000) that you
want to have purchased by the Company: $
Date:________ Your Signature___________________________
(Sign exactly as your name appears on the other side of the Note)
Signature Guarantee:___________________________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Exchange Act Rule 17Ad-15.
EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO QIB
[Date]
The Bank of New York
Corporate Trust Administration
101 Barclay Street
New York, NY 10286
Re: 8-1/4% Senior Notes Due 2008 (the "Notes") of JLG Industries,
Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 5,
2003 (as amended and supplemented from time to time, the "Indenture"), between
the Company, the Note Guarantors party thereto and The Bank of New York, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
This letter relates to $___________ aggregate principal amount
of Notes [in the case of a transfer of an interest in a Permanent or Temporary
Regulation S Global Note: which represents an interest in a Permanent or
Temporary Regulation S Global Note beneficially owned by] [in the case of a
transfer of an interest in a Rule 144A Global Note: which represents an interest
in a Rule 144A Global Note beneficially owned by] the undersigned (the
"Transferor") to effect the transfer of such Notes in exchange for an equivalent
beneficial interest in the Rule 144A Global Note.
In connection with such request, and with respect to such
Notes, the Transferor does hereby certify that such Notes are being transferred
in accordance with Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), to a transferee that the Transferor reasonably believes is purchasing
the Notes for its own account or an account with respect to which the transferee
exercises sole investment discretion, and the transferee, as well as any such
account, is a "qualified institutional buyer" within the meaning of Rule 144A,
in a transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
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You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS PURSUANT TO REGULATION S
[Date]
The Bank of New York
Corporate Trust Administration
101 Barclay Street
New York, NY 10286
Re: 8-1/4% Senior Notes Due 2008 (the "Notes") of JLG Industries,
Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 5,
2003 (as amended and supplemented from time to time, the "Indenture"), between
the Company, the Note Guarantors party thereto and The Bank of New York, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
In connection with our proposed sale of $________ aggregate
principal amount of the Notes [in the case of a transfer of an interest in a
Permanent or Temporary Regulation S Global Note: which represents an interest in
a Permanent or Temporary Regulation S Global Note beneficially owned by] [in the
case of a transfer of an interest in a Rule 144A Global Note: which represents
an interest in a Rule 144A Global Note beneficially owned by] the undersigned
("Transferor"), we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in
the United States;
(b) either (i) at the time the buy order was originated,
the transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States or
(ii) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;
(c) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and
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(e) we are the beneficial owner of the principal amount
of Notes being transferred.
In addition, if the sale is made during a Distribution
Compliance Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of
Regulation S are applicable thereto, we confirm that such sale has been made in
accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2),
as the case may be.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this letter have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
EXHIBIT D
FORM OF RULE 144 CERTIFICATION
[Date]
The Bank of New York
Corporate Trust Administration
101 Barclay Street
New York, NY 10286
Re: 8-1/4% Senior Notes Due 2008 (the "Notes") of JLG Industries,
Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 5,
2003 (as amended and supplemented from time to time, the "Indenture"), between
the Company, the Note Guarantors party thereto and The Bank of New York, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
In connection with our proposed sale of $________ aggregate
principal amount of the Notes [in the case of a transfer of an interest in a
Permanent or Temporary Regulation S Global Note: which represents an interest in
a Permanent or Temporary Regulation S Global Note beneficially owned by] [in the
case of a transfer of an interest in a Rule 144A Global Note: which represents
an interest in a Rule 144A Global Note beneficially owned by] the undersigned
("Transferor"), we confirm that such sale has been effected pursuant to and in
accordance with Rule 144 under the Securities Act.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
EXHIBIT E
FORM OF ADDITIONAL NOTE GUARANTEE
This Supplemental Indenture, dated as of [__________] (this
"Supplemental Indenture"), between [name of Additional Note Guarantor], a
[________] [corporation][limited liability company] (the "New Note Guarantor"),
JLG Industries, Inc., a Pennsylvania corporation (together with its successors
and assigns, the "Company"), each other Note Guarantor under the Indenture
referred to below, and The Bank of New York, as Trustee under the Indenture
referred to below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed
and delivered an Indenture, dated as of May 5, 2003 (as amended, supplemented,
waived or otherwise modified, the "Indenture"), providing for the issuance of
8-1/4% Senior Notes Due 2008 of the Company (the "Notes");
WHEREAS, pursuant to Section 9.5 of the Indenture, the Company
is required to cause each Material Domestic Subsidiary created or acquired by
the Company to execute and deliver to the Trustee an Additional Note Guarantee
pursuant to which such Material Domestic Subsidiary will unconditionally
guarantee, jointly and severally with the other Note Guarantors, the Company's
full and prompt payment of the Obligations (as defined in the Indenture) in
respect of the Indenture and the Notes; and
WHEREAS, pursuant to Section 8.1 of the Indenture, the
Trustee, the Company and the existing Note Guarantors are authorized to execute
and deliver this Supplemental Indenture to amend or supplement the Indenture,
without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the New Note Guarantor, the Company, each other Note Guarantor and
the Trustee mutually covenant and agree for the equal and ratable benefit of the
holders of the Notes as follows:
Article I
Definitions
Section 1.1. Defined Terms. Unless otherwise defined in this
Supplemental Indenture, terms defined in the Indenture are used herein as
therein defined.
Article II
Agreement to be Bound; Guarantee
Section 2.1. Agreement to be Bound. The New Note Guarantor
hereby becomes a party to the Indenture as a Note Guarantor and as such will
have all of the rights and be subject to all of the obligations and agreements
of a Note Guarantor under the Indenture. The New Note Guarantor hereby agrees to
be bound by all of the
2
provisions of the Indenture applicable to a Note Guarantor and to perform all of
the obligations and agreements of a Note Guarantor under the Indenture.
Section 2.2. Guarantee. The New Note Guarantor hereby fully,
unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety, jointly and severally with each other Note Guarantor, to each Holder of
the Notes and the Trustee, the full and punctual payment when due, whether at
maturity, by acceleration or otherwise, of the Obligations, all as more fully
set forth in Article IX of the Indenture.
Article III
Miscellaneous
Section 3.1. Notices. Any notice or communication delivered to
the Company under the provisions of the Indenture shall constitute notice to the
New Note Guarantor.
Section 3.2. Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.
Section 3.3. Governing Law, etc. This Supplemental Indenture
shall be governed by the provisions set forth in Section 10.8 of the Indenture.
Section 3.4. Severability. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
Section 3.5. Ratification of Indenture; Supplemental Indenture
Part of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Notes
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
Section 3.6. Duplicate and Counterpart Originals. The parties
may sign any number of copies of this Supplemental Indenture. One signed copy is
enough to prove this Supplemental Indenture. This Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be an
original, but all of them together represent the same agreement.
Section 3.7. Headings. The headings of the Articles and
Sections in this Supplemental Indenture have been inserted for convenience of
reference only, are not
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intended to be considered as a part hereof and shall not modify or restrict any
of the terms or provisions hereof.
4
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
JLG INDUSTRIES, INC.
By: _________________________________
Name:
Title:
[NAME OF NEW NOTE GUARANTOR],
as a Note Guarantor
By: _________________________________
Name:
Title:
[COMPLETE THE FOLLOWING SIGNATURE BLOCK FOR EACH EXISTING NOTE GUARANTOR:]
[NAME OF NEW NOTE GUARANTOR],
as a Note Guarantor
By: _________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: _________________________________
Name:
Title: