TRISM, INC., as Issuer
AND
THE GUARANTORS
AND
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
INDENTURE
Dated as of February 15, 2000
_____________________
$30,000,000
12% Senior Subordinated Notes Due 2005
CROSS-REFERENCE TABLE
TIA Section Indenture Section
310 (a) (1) 7.10
(a) (2) 7.10
(a) (3) N.A.
(a) (4) N.A.
(a) (5) 7.10
(b) 7.08; 7.10; 13.02
(c) N.A.
311 (a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.05
(b) 13.03
(c) 13.03
313 (a) 7.06
(b) (1) N.A.
(b) (2) 7.06; 7.07
(c) 7.06; 13.02
(d) 7.06
314 (a) 4.08; 4.10; 13.02
(b) N/A
(c) (1) 7.02; 13.04
(c) (2) 7.02; 13.04
(c) (3) N.A.
(d) N.A.
(e) 13.05
(f) N.A.
315 (a) 7.01(b)
(b) 7.05
(c) 7.01(a)
(d) 7.01(c); 7.01(d)
(e) 6.11
316(a) (last sentence) 2.09
(a) (1) (A) 6.05
(a) (1) (B) 6.04
(a) (2) N.A.
(b) 6.07
(c) 13.06
317 (a) (1) 6.08
(a) (2) 6.09
(b) 2.04
318 (a) 13.01
(c) 13.01
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE 1
SECTION 1.01DEFINITIONS. 1
SECTION 1.02INCORPORATION BY REFERENCE OF TIA. 17
SECTION 1.03RULES OF CONSTRUCTION. 18
ARTICLE TWO THE SENIOR SUBORDINATED NOTES 18
SECTION 2.01FORM AND DATING. 18
SECTION 2.02EXECUTION AND AUTHENTICATION. 19
SECTION 2.03REGISTRAR AND PAYING AGENT. 20
SECTION 2.04PAYING AGENT TO HOLD ASSETS IN TRUST. 20
SECTION 2.05SECURITYHOLDER LISTS. 21
SECTION 2.06TRANSFER AND EXCHANGE. 21
SECTION 2.07REPLACEMENT SENIOR SUBORDINATED NOTES. 21
SECTION 2.08OUTSTANDING SENIOR SUBORDINATED NOTES. 22
SECTION 2.09TREASURY SENIOR SUBORDINATED NOTES. 22
SECTION 2.10TEMPORARY SENIOR SUBORDINATED NOTES. 22
SECTION 2.11CANCELLATION. 23
SECTION 2.12DEFAULTED INTEREST. 23
SECTION 2.13CUSIP NUMBER. 23
ARTICLE THREE REDEMPTION 24
SECTION 3.01NOTICES TO TRUSTEE. 24
SECTION 3.02SELECTION OF SENIOR SUBORDINATED NOTES TO BE
REDEEMED. 24
SECTION 3.03NOTICE OF REDEMPTION. 24
SECTION 3.04EFFECT OF NOTICE OF REDEMPTION. 25
SECTION 3.05DEPOSIT OF REDEMPTION PRICE. 25
SECTION 3.06SENIOR SUBORDINATED NOTES REDEEMED IN PART. 26
SECTION 3.07OPTIONAL REDEMPTION. 26
SECTION 3.08MANDATORY PURCHASE UPON ASSET SALE. 26
ARTICLE FOUR COVENANTS 26
SECTION 4.01PAYMENT OF SENIOR SUBORDINATED NOTES. 26
SECTION 4.02MAINTENANCE OF OFFICE OR AGENCY. 27
SECTION 4.03LIMITATION ON RESTRICTED PAYMENTS. 27
SECTION 4.04MINIMUM NET WORTH. 27
SECTION 4.05CORPORATE EXISTENCE. 27
SECTION 4.06PAYMENT OF TAXES AND OTHER CLAIMS. 28
SECTION 4.07MAINTENANCE OF PROPERTIES AND INSURANCE. 28
SECTION 4.08COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT. 29
SECTION 4.09COMPLIANCE WITH LAWS. 29
SECTION 4.10COMMISSION REPORTS. 30
SECTION 4.11WAIVER OF STAY, EXTENSION OR USURY LAWS. 30
SECTION 4.12LIMITATION ON TRANSACTIONS WITH AFFILIATES. 30
SECTION 4.13LIMITATION ON INCURRENCES OF ADDITIONAL
INDEBTEDNESS. 31
SECTION 4.14LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. 32
SECTION 4.15LIMITATION ON LIENS. 33
SECTION 4.16RESTRICTIONS ON SALE AND OWNERSHIP OF
SUBSIDIARIES. 33
SECTION 4.17PAYMENTS FOR CONSENT. 33
SECTION 4.18LIMITATION ON ASSET SALES. 33
SECTION 4.19GUARANTEES BY SUBSIDIARIES. 35
SECTION 4.20SUBSIDIARIES. 35
SECTION 4.21PROHIBITION ON COMPANY AND GUARANTORS BECOMING
AN INVESTMENT COMPANY. 35
SECTION 4.22MAINTENANCE CAPITAL EXPENDITURES. 35
SECTION 4.23LINE OF BUSINESS. 36
SECTION 4.24LIMITATION ON ISSUANCE OF OTHER SUBORDINATED
INDEBTEDNESS SENIOR TO THE SENIOR SUBORDINATED
NOTES. 36
SECTION 4.25LIMITATION OF GUARANTEES BY SUBSIDIARIES. 37
ARTICLE FIVE SUCCESSOR CORPORATION 37
SECTION 5.01LIMITATION ON MERGER, ETC. 37
SECTION 5.02SUCCESSOR CORPORATION SUBSTITUTED. 39
ARTICLE SIX DEFAULT AND REMEDIES 39
SECTION 6.01EVENTS OF DEFAULT. 39
SECTION 6.02ACCELERATION. 41
SECTION 6.03OTHER REMEDIES. 42
SECTION 6.04WAIVER OF PAST DEFAULTS. 43
SECTION 6.05CONTROL BY MAJORITY. 43
SECTION 6.06LIMITATION ON SUITS. 43
SECTION 6.07RIGHTS OF HOLDERS TO RECEIVE PAYMENT. 44
SECTION 6.08COLLECTION SUIT BY TRUSTEE. 44
SECTION 6.09TRUSTEE MAY FILE PROOFS OF CLAIM. 44
SECTION 6.10PRIORITIES. 45
SECTION 6.11UNDERTAKING FOR COSTS. 45
SECTION 6.12EVENT OF DEFAULT FROM WILLFUL ACTION. 45
SECTION 6.13RIGHTS AND REMEDIES CUMULATIVE. 45
SECTION 6.14DELAY OR OMISSION NOT WAIVER. 46
ARTICLE SEVEN TRUSTEE 46
SECTION 7.01DUTIES OF TRUSTEE. 46
SECTION 7.02RIGHTS OF TRUSTEE. 47
SECTION 7.03INDIVIDUAL RIGHTS OF TRUSTEE. 48
SECTION 7.04TRUSTEE'S DISCLAIMER. 48
SECTION 7.05NOTICE OF DEFAULT. 48
SECTION 7.06REPORTS BY TRUSTEE TO HOLDERS. 49
SECTION 7.07COMPENSATION AND INDEMNITY. 49
SECTION 7.08REPLACEMENT OF TRUSTEE. 50
SECTION 7.09SUCCESSOR TRUSTEE BY MERGER, ETC. 51
SECTION 7.10ELIGIBILITY; DISQUALIFICATION. 51
SECTION 7.11PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY. 51
ARTICLE EIGHT SUBORDINATION 51
SECTION 8.01SENIOR SUBORDINATED NOTES SUBORDINATE TO SENIOR
INDEBTEDNESS. 51
SECTION 8.02PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. 51
SECTION 8.03SUSPENSION OF PAYMENT WHEN SENIOR INDEBTEDNESS
IN DEFAULT. 53
SECTION 8.04PAYMENT PERMITTED IF NO DEFAULT. 54
SECTION 8.05SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS. 54
SECTION 8.06PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. 54
SECTION 8.07TRUSTEE TO EFFECTUATE SUBORDINATION PROVISIONS. 55
SECTION 8.08NO WAIVER OF SUBORDINATION PROVISIONS. 55
SECTION 8.09NOTICE TO TRUSTEE. 56
SECTION 8.10RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. 56
SECTION 8.11RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S
RIGHTS. 57
SECTION 8.12ARTICLE APPLICABLE TO PAYING AGENTS. 57
SECTION 8.13NO SUSPENSION OF REMEDIES. 57
SECTION 8.14TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS. 57
SECTION 8.15AMENDMENTS. 58
ARTICLE NINE LEGAL DEFEASANCE AND COVENANT DEFEASANCE 58
SECTION 9.01OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE. 58
SECTION 9.02LEGAL DEFEASANCE AND DISCHARGE. 58
SECTION 9.03COVENANT DEFEASANCE. 58
SECTION 9.04CONDITIONS TO LEGAL OR COVENANT DEFEASANCE. 59
SECTION 9.05DEPOSITED U.S. LEGAL TENDER AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS. 61
SECTION 9.06REPAYMENT TO THE COMPANY. 61
SECTION 9.07REINSTATEMENT. 62
ARTICLE TEN AMENDMENTS, SUPPLEMENTS AND WAIVER 62
SECTION 10.01WITHOUT CONSENT OF HOLDERS OF SENIOR SUBORDINAT
ED NOTES. 62
SECTION 10.02WITH CONSENT OF HOLDERS OF SENIOR SUBORDINATED
NOTES. 63
SECTION 10.03EFFECT OF SUPPLEMENTAL INDENTURES. 65
SECTION 10.04COMPLIANCE WITH TIA. 65
SECTION 10.05REVOCATION AND EFFECT OF CONSENTS. 65
SECTION 10.06NOTATION ON OR EXCHANGE OF SENIOR SUBORDINATED
NOTES. 66
SECTION 10.07TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. 66
ARTICLE ELEVEN MEETINGS OF SECURITYHOLDERS 67
SECTION 11.01PURPOSES FOR WHICH MEETINGS MAY BE CALLED. 67
SECTION 11.02MANNER OF CALLING MEETINGS. 68
SECTION 11.03CALL OF MEETINGS BY THE COMPANY OR HOLDERS. 68
SECTION 11.04WHO MAY ATTEND AND VOTE AT MEETINGS. 68
SECTION 11.05REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF
THE MEETING; VOTING RIGHTS; ADJOURNMENT. 69
SECTION 11.06VOTING AT THE MEETING AND RECORD TO BE KEPT. 69
SECTION 11.07EXERCISE OF RIGHTS OF TRUSTEE OR SECURITYHOLDERS
MAY NOT BE HINDERED OR DELAYED BY CALL OF
MEETING. 70
ARTICLE TWELVE GUARANTEE OF SENIOR SUBORDINATED NOTES 70
SECTION 12.01UNCONDITIONAL GUARANTEE. 70
SECTION 12.02SENIORITY OF GUARANTEE. 71
SECTION 12.03SEVERABILITY. 71
SECTION 12.04RELEASE OF A GUARANTOR. 71
SECTION 12.05LIMITATION OF GUARANTOR'S LIABILITY. 72
SECTION 12.06GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TE
RMS. 72
SECTION 12.07CONTRIBUTION. 73
SECTION 12.08WAIVER OF SUBROGATION. 73
SECTION 12.09SUBORDINATION OF GUARANTEE. 74
SECTION 12.10EXECUTION OF GUARANTEE. 74
SECTION 12.11GUARANTEE UNCONDITIONAL, ETC. 74
SECTION 12.12ADDITIONAL GUARANTORS. 75
SECTION 12.13WAIVER OF STAY, EXTENSION OR USURY LAWS. 75
ARTICLE THIRTEEN MISCELLANEOUS 76
SECTION 13.01TIA CONTROLS. 76
SECTION 13.02NOTICES. 76
SECTION 13.03COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS. 77
SECTION 13.04CERTIFICATE AND OPINION AS TO CONDITIONS PRECED
ENT. 77
SECTION 13.05STATEMENTS REQUIRED IN A CERTIFICATE OR OPINION 78
SECTION 13.06ACTS OF HOLDERS. 78
SECTION 13.07RULES BY TRUSTEE AND AGENTS. 80
SECTION 13.08LEGAL HOLIDAYS. 80
SECTION 13.09GOVERNING LAW. 80
SECTION 13.10AGENT FOR SERVICE; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES. 80
SECTION 13.11NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. 81
SECTION 13.12NO RECOURSE AGAINST OTHERS. 81
SECTION 13.13SUCCESSORS. 81
SECTION 13.14COUNTERPART ORIGINALS. 81
SECTION 13.15SEVERABILITY. 81
SECTION 13.16TABLE OF CONTENTS, HEADINGS, ETC. 82
EXHIBITS AND SCHEDULES
EXHIBIT A - FORM OF SENIOR SUBORDINATED NOTE A-1
EXHIBIT B - FORM OF REGISTRATION RIGHTS AGREEMENT B-1
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED
TO BE PART OF THE INDENTURE.
INDENTURE dated as of February 15, 2000 among TRISM,
INC., a Delaware corporation (the "Company"), the GUARANTORS (as
defined below), and U.S. BANK TRUST NATIONAL ASSOCIATION, a
national banking association, as Trustee (the "Trustee").
The Company has duly authorized the creation of an
issue of 12% Senior Subordinated Notes Due 2005 in the form
attached hereto as Exhibit A, and, to provide therefor, the
Company has duly authorized the execution and delivery of this
Indenture. The Senior Subordinated Notes will be jointly and
severally guaranteed, on an unconditional unsecured basis as
provided herein, by the Guarantors (as defined below). All
things necessary to make the Senior Subordinated Notes, when duly
issued and executed by the Company and the Guarantors, and
authenticated and delivered hereunder, the valid obligations of
the Company and the Guarantors and to make this Indenture a valid
and binding agreement of the Company and the Guarantors, have
been done.
Each party hereto agrees as follows for the benefit of
each other party and for the equal and ratable benefit of the
Holders of the Company's 12% Senior Subordinated Notes due 2005:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
For all purposes of this Indenture, except as otherwise
provided or unless the context otherwise requires:
"ADJUSTED NET ASSETS" of a Person at any date shall
mean the lesser of the amount by which (i) the fair value of the
property of such Person exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after
giving effect to all other fixed and contingent liabilities
incurred or assumed on such date and calculated in accordance
with the definition of Indebtedness), but excluding liabilities
under the Guarantee, of such Person at such date and (ii) the
present fair salable value of the assets of such Person at such
date exceeds the amount that will be required to pay the probable
liability of such Person on its debts (after giving effect to all
other fixed and contingent liabilities incurred or assumed on
such date and after giving effect to any collection from any
Subsidiary of such Person in respect of the obligations of such
Subsidiary under the Guarantee), excluding debt in respect of the
Guarantee, as they become absolute and matured.
"AFFILIATE" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "affiliated," "controlling" and
"controlled" have meanings correlative to the foregoing. For
purposes of Section 4.12 hereof, the term "Affiliate" shall
include any Person who, as a result of any transaction described
therein, would become an Affiliate.
"AFFILIATE TRANSACTION" shall have the meaning provided
in Section 4.12.
"AGENT" means any Registrar, Paying Agent or co-
Registrar.
"ASSET SALE" means the Disposition by the Company or
any Subsidiary to any Person other than the Company or a
Guarantor, in one transaction, or a series of related
transactions, of (i) any Capital Stock of any Subsidiary (except
for directors' qualifying shares or certain minority interests
sold to other Persons solely due to local law requirements that
there be more than one stockholder, but which are not in excess
of what is required for such purpose), or (ii) any other Property
or assets of the Company or any Subsidiary, other than (A) sales
of obsolete or worn out equipment in the ordinary course of
business or other assets that, in the Company's reasonable
judgment, are no longer used or useful in the conduct of the
business of the Company and its Subsidiaries, (B) any sale or
lease of Property or other assets entered into by the Company or
any Subsidiary in the ordinary course of business, other than any
Bargain Purchase Contract, (C) a payment permitted under Section
4.14, and (D) a consolidation or merger or any transfer of assets
(including pursuant to a Plan of Liquidation) in compliance with
the provision herein described in Article Five. An Asset Sale
shall include the requisition of title to, seizure of or
forfeiture of any Property or assets, or any actual or
constructive total loss or an agreed or compromised total loss of
any Property or assets. Notwithstanding the foregoing, a
Disposition by the Company or any Subsidiary to any Person other
than the Company or a Guarantor, in one transaction, or a series
of related transactions, of any tractors, trailers, vans or other
equipment used by the Company or any of its Subsidiaries in the
operation of the TRISM Business shall not be deemed to be an
Asset Sale unless and until the Net Cash Proceeds so received by
the Company or such Subsidiary have not been applied by the
Company or such Subsidiary, within one year of the date of such
Disposition, toward the acquisition of tractors, trailers, vans
or other equipment that replace the properties that were the
subject of such Disposition.
"ASSET SALE CLOSING DATE" shall have the meaning
provided in Section 4.18.
"ATTRIBUTABLE INDEBTEDNESS" in respect of a Sale and
Lease-Back Transaction means, at any date of determination, the
present value (discounted at the interest rate borne by the
Senior Subordinated Notes, compounded annually) of the total
obligations of the lessee for rental payments during the
remaining term of the lease (or to the first date on which the
lessee is permitted to terminate such lease without the payment
of a penalty) included in such Sale and Lease-Back Transaction
(including any period for which such lease has been extended).
"BANKRUPTCY LAW" means Title 11, U.S. Code or any
similar Federal, state or foreign law for the relief of debtors.
"BARGAIN PURCHASE CONTRACT" means a lease that provides
for acquisition of the Property subject thereto by the other
party to such agreement during or at the end of the term thereof
for less than the Fair Market Value thereof at the time such
right to acquire such Property is granted.
"BOARD OF DIRECTORS" means, with respect to any Person,
the Board of Directors (or Persons serving an analogous function)
of such Person or any committee of the Board of Directors (or
Persons serving an analogous function) of such Person duly
authorized, with respect to any particular matter, to exercise
the power of the Board of Directors (or such analogous Persons)
of such Person.
"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 and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"BUSINESS DAY" means a day that is not a Saturday,
Sunday or a day on which banking institutions in New York City
are not required to be open.
"CAPITAL EXPENDITURE" means any expenditure that is
properly classified as a capital expenditure in accordance with
GAAP, including without limitation, all such expenditures
associated with Capitalized Lease Obligations.
"CAPITAL STOCK" means, with respect to any Person, any
and all shares, interests, participations or other equivalents
(however designated) of corporate stock, including each class of
common stock and preferred stock of such Person, including
Preferred Stock, or any option, warrant or other security
convertible into or exchangeable for any of the foregoing.
"CAPITALIZED LEASE OBLIGATION" means obligations under
a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of
Indebtedness represented by such obligations shall be the
capitalized amount of such obligations determined in accordance
with GAAP.
"CASH EQUIVALENTS" means (i) obligations issued or
unconditionally guaranteed by the United States of America or any
agency thereof, or obligations issued by any agency or
instrumentality thereof and backed by the full faith and credit
of the United States of America, (ii) commercial paper rated the
highest grade by Moody's Investors Service, Inc. and Standard &
Poor's Ratings Service and maturing not more than one year from
the date of creation thereof, (iii) time deposits with, and
certificates of deposit and banker's acceptances issued by, any
bank having capital surplus and undivided profits aggregating at
least $500 million and maturing not more than one year from the
date of creation thereof, (iv) repurchase agreements with a term
of not more than seven days that are secured by a perfected
security interest in an obligation described in clause (i) and
are with any bank described in clause (iii), and (v) readily
marketable direct obligations issued by any state of the United
States of America or any political subdivision thereof having one
of the two highest rating categories obtainable from either
Moody's Investors Service, Inc. or Standard & Poor's Ratings
Service.
"COMMISSION" means the Securities and Exchange
Commission.
"COMPANY" means TRISM, Inc., a Delaware corporation,
until a successor replaces it pursuant to this Indenture and
thereafter means such successor.
"CONSOLIDATED ASSETS" means, with respect to any
Person, as of any date, the aggregate assets of such Person and
its Subsidiaries on a consolidated basis, each item determined in
accordance with GAAP.
"CONSOLIDATED LIABILITIES" means, with respect to any
Person, as of any date, the aggregate liabilities of such Person
and its Subsidiaries on a consolidated basis, each item
determined in accordance with GAAP.
"CONSOLIDATED INCOME TAX EXPENSE" means for any period,
as applied to the Company, the provision for federal, state,
local or foreign income taxes of the Company and its Consolidated
Subsidiaries for such period as determined in accordance with
GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, without
duplication, for any period, as applied to the Company, the sum
of (a) the interest expense of the Company and its Consolidated
Subsidiaries for such period as determined in accordance with
GAAP including, without limitation, (i) amortization of debt
discount, (ii) the net cost under Interest Swap Obligations
(including amortization of discounts), (iii) the interest portion
of any deferred payment obligation, (iv) accrued interest,
(v) noncash interest payments and (vi) commissions, discounts,
and other fees and charges owed with respect to letters of credit
and bankers' acceptance financing, plus (b) the interest portion
of Capitalized Lease Obligations paid or accrued by the Company
and its Consolidated Subsidiaries, plus (c) amortization of
capitalized interest, plus (d) dividends in respect of Preferred
Stock of the Company or any Subsidiary held by Persons other than
the Company or a Wholly Owned Subsidiary.
"CONSOLIDATED NET INCOME (LOSS)" means, for any period,
the Consolidated net income (or loss) of the Company and its
Consolidated Subsidiaries for such period as determined in
accordance with GAAP, adjusted, to the extent included in
calculating such net income (or loss), by excluding without
duplication (i) all extraordinary gains or losses; (ii) any net
income of any Person if such Person is not a Subsidiary, in which
the Company or any of its Subsidiaries has an interest, except to
the extent of the amount of any dividends or distributions
actually paid in cash to the Company or a Subsidiary of the
Company during such period, but not in excess of the Company's
pro rata share of such Person's net income (or loss) subsequent
to the Issue Date; (iii) net income (or loss) of any Person
combined with the Company or any of its Subsidiaries in a
"pooling of interests" basis attributable to any period prior to
the date of combination; (iv) any gain or loss, net of taxes,
realized upon the termination of any employee pension benefit
plan; (v) net gains or losses in respect of dispositions of
assets other than in the ordinary course of business; (vi) the
net income of any Subsidiary to the extent that the declaration
of dividends or similar distributions by that Subsidiary of that
income is not at the time permitted, directly or indirectly, by
operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or
governmental regulations applicable to that Subsidiary or its
shareholders.
"CONSOLIDATED RENTAL PAYMENTS" of any Person means, for
any period, the aggregate rental obligations of such Person and
its Consolidated Subsidiaries (not including taxes, insurance,
maintenance and similar expenses that the lessee is obligated to
pay under the terms of the relevant leases), determined on a
Consolidated basis in accordance with GAAP, payable in respect of
such period (net of income from subleases thereof, not including
taxes, insurance, maintenance and similar expenses that the
sublessee is obligated to pay under the terms of such sublease),
whether or not such obligations are reflected as liabilities or
commitments on a Consolidated balance sheet of such Person and
its Subsidiaries or in the notes thereto, excluding, however, in
any event, (i) that portion of Consolidated Interest Expense of
such Person representing payments by such Person or any of its
Consolidated Subsidiaries in respect of Capitalized Lease
Obligations (net of payments to such Person or any of its
Consolidated Subsidiaries under subleases qualifying as
capitalized lease subleases to the extent that such payments
would be deducted in determining Consolidated Interest Expense)
and (ii) the aggregate amount of amortization of obligations of
such Person and its Consolidated Subsidiaries in respect of such
Capitalized Lease Obligations for such period (net of payments to
such Person or any of its Consolidated Subsidiaries and subleases
qualifying as capitalized lease subleases to the extent that such
payments could be deducted in determining such amortization
amount).
"CONSOLIDATION" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its
subsidiaries if and to the extent the accounts of such Person and
each of its subsidiaries would normally be consolidated with
those of such Person, all in accordance with GAAP. The term
"Consolidated" shall have a similar meaning.
"COVENANT DEFAULT" means any event (other than a
Payment Default) the occurrence of which entitles one or more
Persons to accelerate the maturity of any Designated Senior
Indebtedness.
"CURRENCY HEDGE OBLIGATIONS" means, at any time as to
any Person, the obligations of such Person at such time which
were incurred in the ordinary course of business pursuant to any
foreign currency exchange agreement, option or future contract or
other similar agreement or arrangement designed to protect
against or manage such Person's or any of its subsidiaries'
exposure to fluctuations in foreign currency exchange rates.
"CUSTODIAN" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy
Law.
"DEFAULT" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"DEFICIENCY CORRECTION DATE" shall have the meaning
provided in Section 4.04.
"DESIGNATED SENIOR INDEBTEDNESS" means: (i) so long as
any amount is outstanding or any commitment remains in effect
under the Senior Secured Credit Facility, all Indebtedness under
the Senior Secured Credit Facility; and (ii) any other Senior
Indebtedness which, at the time of determination, has an
aggregate principal amount outstanding of, and/or any commitments
to lend up to, at least $5 million and is specifically designated
in the instrument evidencing such Senior Indebtedness as
"Designated Senior Indebtedness" by the Company, provided that
any such other Senior Indebtedness has been incurred with the
approval of the Board of Directors of the Company, such approval
to be evidenced by a Board Resolution.
"DISPOSITION" means any direct or indirect sale,
conveyance, transfer, lease or other disposition (including,
without limitation, by way of merger or consolidation or by means
of a Sale and Lease-Back Transaction).
"DISQUALIFIED CAPITAL STOCK" means, with respect to any
Person, any Capital Stock or Partnership Interest of such Person
that, by its terms, by the terms of any agreement related thereto
or by the terms of any security into which it is convertible,
puttable or exchangeable, is, or upon the happening of an event
or the passage of time would be, required to be redeemed or
repurchased by such Person or its Subsidiaries, including at the
option of the holder, in whole or in part, or matures or has, or
upon the happening of an event or passage of time would have, a
redemption or similar payment due, in each instance on or prior
to one year following the Maturity Date, in cash or securities
constituting Indebtedness.
"EVENT OF DEFAULT" shall have the meaning provided in
Section 6.01.
"EXCESS PROCEEDS" shall have the meaning provided in
Section 4.18.
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated by
the Commission thereunder.
"FAIR MARKET VALUE" means, with respect to
consideration received or to be received pursuant to any
transaction by any Person, the price which could be negotiated in
an arm's length free market transaction, for cash, between a
willing seller and a willing buyer, neither of whom is under
undue pressure or compulsion to complete the transaction, as
determined in good faith by the Board of Directors of the
Company.
"FIXED CHARGE COVERAGE RATIO" means for any period the
ratio of (a) the sum of Consolidated Net Income (Loss),
Consolidated Interest Expense, one-third of Consolidated Rental
Payments, and Consolidated Income Tax Expense plus, without
duplication, all depreciation, amortization and all other noncash
charges (excluding any such noncash charge constituting an
extraordinary item of loss or any noncash charge which requires
an accrual of or a reserve for cash charges for any future
period), in each case, for such period, of the Company and its
Subsidiaries on a Consolidated basis, all determined in
accordance with GAAP to (b) Consolidated Interest Expense and
one-third of Consolidated Rental Payments for such period;
provided that in making such computation, the Consolidated
Interest Expense attributable to interest on any Indebtedness
computed on a pro forma basis and bearing a floating interest
rate shall be computed as if the rate in effect on the date of
computation had been the applicable rate for the entire period.
"GAAP" means at any date, United States generally
accepted accounting principles, consistently applied, as set
forth in the opinions of the Accounting Principles Board of the
American Institute of Certified Public Accountants ("AICPA") and
statements of the Financial Accounting Standards Board, or in
such other statements by such other entity as may be designated
by the AICPA, that are applicable to the circumstances as of the
date of determination; provided, however, that all calculations
made for purposes of determining compliance with the provisions
set forth herein shall utilize GAAP in effect at the Issue Date.
"GUARANTEE" means the Guarantee set forth in Article
Twelve and any additional guarantee of Senior Subordinated Notes.
"GUARANTOR" means (i) as of the Issue Date, the Initial
Guarantors, and (ii) thereafter, unless released from the
Guarantee as permitted by this Indenture, the Initial Guarantors
and any other Person that becomes a guarantor of the Senior
Subordinated Notes in compliance with the provisions of this
Indenture and executes a supplemental indenture agreeing to be
bound by the terms of this Indenture.
"GUARANTOR SENIOR INDEBTEDNESS" means, with respect to
any Guarantor, the principal of, premium, if any, and interest
(including interest to the extent allowable, accruing after the
filing of a petition initiating any proceeding under any state,
federal or foreign bankruptcy laws) of any Indebtedness of such
Guarantor (other than as otherwise provided in this definition),
whether outstanding on the Issue Date or thereafter, created,
incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that
such Indebtedness shall not be senior in right of payment to the
Guarantee of such Guarantor. Without limiting the foregoing, in
the case of the Senior Secured Credit Facility, "Guarantor Senior
Indebtedness" means and includes all obligations of any guarantor
thereunder, including, without limitation, principal, premium, if
any, interest (including interest accruing after the filing of a
petition initiating any proceeding under state, federal or
foreign bankruptcy laws), fees, breakage costs, reimbursement
obligations, indemnities, and all other obligations of such
parties to the Lenders. Notwithstanding the foregoing, "Guarantor
Senior Indebtedness" does not include (i) Indebtedness evidenced
by the Guarantee of such Guarantor, (ii) Indebtedness that is
subordinate or junior in right of payment to any Indebtedness of
such Guarantor, (iii) Indebtedness which when incurred and
without respect to any election under Section 1111(b) of
Title 11, United States Code, is without recourse to such
Guarantor, (iv) Indebtedness which is represented by Redeemable
Capital Stock, (v) any liability for federal, state, local or
other taxes owed or owing by such Guarantor, (vi) any accounts
payable to trade creditors created, incurred, or assumed by such
Guarantor in the ordinary course of business in connection with
obtaining goods, materials or services, (vii) Indebtedness of
such Guarantor to a Subsidiary of the Company, (viii) amounts
payable on any Indebtedness to any employee or Affiliate of such
Guarantor other than as provided in clause (vii) (except for any
Indebtedness evidenced by any debt securities of such Guarantor
purchased by such employee or Affiliate after such debt
securities have been registered under the Securities Act,
provided that such debt securities rank senior in right of
payment to the Guarantee of such Guarantor and the issuance of
the securities was permitted by the covenant described in
Section 4.13, (ix) that portion of any Indebtedness which is
issued by such Guarantor in violation of this Indenture,
provided, however, that in the case of the preceding clause (ix),
any Indebtedness issued to any Person who had no actual knowledge
that the incurrence of such Indebtedness was not permitted under
Section 4.13 and who received on the date of issuance thereof a
certificate from an officer of the Company to the effect that the
issuance of such Indebtedness would not violate such Section
shall constitute Guarantor Senior Indebtedness and
(x) Indebtedness of such Guarantor representing a guarantee of
Subordinated Indebtedness of the Company or any other Guarantor,
or a guarantee of Indebtedness that ranks pari passu with the
Senior Subordinated Notes.
"HOLDER" or "SECURITYHOLDER" means the Person in whose
name a Senior Subordinated Note is registered on the Registrar's
books.
"INDEBTEDNESS" as applied to any Person means, at any
time, without duplication, whether recourse is to all or a
portion of the assets of such Person, and whether or not
contingent: (i) any obligation of such Person for borrowed
money; (ii) any obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including,
without limitation, any such obligations incurred in connection
with acquisition of Property, assets or businesses, excluding
accounts payable made in the ordinary course of business which
are not more than 90 days overdue or which are being contested in
good faith and by appropriate proceedings; (iii) any obligation
of such Person for all or any part of the purchase price of
Property or assets or for the cost of Property constructed or of
improvements thereto (including any obligation under or in
connection with any letter of credit related thereto), other than
accounts payable incurred in respect of Property and services
purchased in the ordinary course of business which are no more
than 90 days overdue or which are being contested in good faith
and by appropriate proceedings; (iv) any obligation of such
Person upon which interest charges are customarily paid (other
than accounts payable incurred in the ordinary course of
business); (v) any obligation of such Person under conditional
sale or other title retention agreements relating to purchased
Property; (vi) any obligation of such Person issued or assumed as
the deferred purchase price of Property or assets (other than
accounts payable incurred in the ordinary course of business
which are no more than 90 days overdue or which are being
contested in good faith and by appropriate proceedings); (vii)
any Capitalized Lease Obligation or Attributable Indebtedness
pursuant to any Sale and Lease-Back Transaction of such Person;
(viii) any obligation secured by (or for which the obligee
thereof has an existing right, contingent or otherwise, to be
secured by) any Lien on Property owned or acquired, whether or
not any obligation secured thereby has been assumed, by such
Person; (ix) any obligation of such Person in respect of any
letter of credit supporting any obligation of any other Person;
(x) the maximum fixed repurchase price of any Disqualified
Capital Stock of such Person (or if such Person is a subsidiary,
any Preferred Stock of such Person); (xi) the notional amount of
any Interest Swap Obligation or Currency Hedge Obligation of such
Person at the time of determination; and (xii) any obligation
which is in economic effect a guarantee, regardless of its
characterization (other than an endorsement in the ordinary
course of business), with respect to any Indebtedness of another
Person, to the extent guaranteed. For purposes of the preceding
sentence, the maximum fixed repurchase price of any Disqualified
Capital Stock or subsidiary Preferred Stock that does not have a
fixed repurchase price shall be calculated in accordance with the
terms of such Disqualified Capital Stock or subsidiary Preferred
Stock as if such Disqualified Capital Stock or subsidiary
Preferred Stock were repurchased on any date on which
Indebtedness shall be required to be determined pursuant to this
Indenture; provided that if such Disqualified Capital Stock or
subsidiary Preferred Stock is not then permitted to be
repurchased, the repurchase price shall be the book value of such
Disqualified Capital Stock or subsidiary Preferred Stock. The
amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations
as described above and the maximum liability of any guarantees at
such date; provided, further, that for purposes of calculating
the amount of any non-interest bearing or other discount
security, such Indebtedness shall be deemed to be the principal
amount thereof that would be shown on the balance sheet of the
issuer dated such date prepared in accordance with GAAP but that
such security shall be deemed to have been incurred only on the
date of the original issuance thereof.
"INDENTURE" means this Indenture, as amended or
supplemented from time to time in accordance with the terms
hereof.
"INDEPENDENT FINANCIAL ADVISOR" means an investment
banking, accounting or appraisal firm of national standing (i)
which does not, and whose directors, officers and employees or
Affiliates do not, have a direct or indirect ownership interest
or material direct or indirect financial interest in the Company
or any of its Subsidiaries or Affiliates, provided that ownership
of three percent (3%) or less of the issued and outstanding
shares of Capital Stock of the Company shall not constitute
having a direct or indirect ownership or financial interest in
the Company or any of its Subsidiaries or Affiliates, and (ii)
which, in the judgment of the disinterested members of the Board
of Directors of the Company, as evidenced by a Board Resolution,
is independent and qualified to perform the task for which it is
to be engaged.
"INITIAL GUARANTORS" means TRISM Secured
Transportation, Inc. (f/k/a Tri-State Motor Transit Co. of
Delaware), a Delaware corporation, TRISM Heavy Haul, Inc.
(f/k/a TSMB 2 Acquisition Corporation), a Delaware corporation,
E. L. Powell & Sons Trucking Co., Inc., an Oklahoma corporation,
Tri-State Motor Transit Co., a Delaware corporation, TRISM
Specialized Carriers, Inc., a Georgia corporation, Aero Body and
Truck Equipment, Inc., a Delaware corporation, TRISM Special
Services, Inc., a Georgia corporation, Diablo Systems, Inc.
(d/b/a Diablo Transportation, Inc.), a California corporation,
TRISM Eastern, Inc. (d/b/a C. I. Whitten Transfer Co.), a
Delaware corporation, TRISM Transport, Inc., a Delaware
corporation, TRISM Transport Services, Inc., a Utah corporation,
TRISM Logistics, Inc., a New Jersey corporation, and TRISM
Equipment, Inc., a Delaware corporation.
"INTEREST PAYMENT DATE" means the stated maturity of an
installment of interest on the Senior Subordinated Notes.
"INTEREST SWAP OBLIGATION" means any obligation of any
Person pursuant to any arrangement with any other Person whereby,
directly or indirectly, such Person is entitled to receive from
time to time periodic payments calculated by applying either a
fixed or floating rate of interest on a stated notional amount in
exchange for periodic payments made by such Person calculated by
applying a fixed or floating rate of interest on the same
notional amount; provided that the term "Interest Swap
Obligation" shall also include interest rate exchange, collar,
cap, swap option or similar agreements providing interest rate
protection.
"INVESTMENT" by any Person means (i) any investment or
acquisition by such Person, in any transaction or series of
related transactions, whether by a purchase of Capital Stock,
Partnership Interests or assets, share purchase, capital
contribution, loan, advance (other than (a) reasonable loans and
advances to employees for moving and travel expenses or as salary
advances, incurred, in each case, in the ordinary course of
business consistent with past practice, and (b) trade credit
extended to customers in the ordinary course of business of the
Company or any of its Subsidiaries consistent with past practice
and on terms and conditions common in the industry and no less
favorable to the Company or such Subsidiary than trade credit
extended by other suppliers similarly situated) or similar credit
extension constituting Indebtedness of another Person, and any
guarantee of Indebtedness of any other Person (other than a
guarantee of Indebtedness incurred under the Senior Secured
Credit Facility or this Indenture), and (ii) any Capital
Expenditure. The amount of any Investment shall be the greater
of (A) the Fair Market Value of the assets being transferred, and
(B) the gross amount of assets acquired as a result of such
Investment (or in the case of an Investment in Capital Stock or
Partnership Interests issued by another Person, the appropriate
proportion of the gross assets of such other Person).
"ISSUE DATE" means February 15, 2000.
"LENDER" means collectively the lenders and agent under
the Senior Secured Credit Facility.
"LIEN" means any mortgage, pledge, lien, encumbrance,
charge or adverse claim affecting title or resulting in an
encumbrance against real or personal property, or a security
interest of any kind (including any lease, conditional sale or
other title retention agreement having substantially the same
economic effect as any of the foregoing, any option or other
agreement to sell which is intended to constitute or create a
security interest, mortgage, pledge or lien (other than bona fide
options and agreements for the sale of assets) and any filing of
or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction).
"MAINTENANCE CAPITAL EXPENDITURES" means Capital
Expenditures directly related to maintaining, servicing,
replacing and upgrading the tractors, trailers, vans and other
equipment used by the Company or any of its Subsidiaries in the
operation of the TRISM Business on the Issue Date, and
specifically excludes Capital Expenditures related to the
acquisition of any other tractors, trailers, vans and other
equipment.
"MATURITY DATE" means February 15, 2005.
"MINIMUM NET WORTH" means an amount equal to 80% of the
Net Worth of the Company as of the Issue Date.
"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 Subsidiaries from such Asset Sale, net
of (i) reasonable and customary expenses directly related to such
Asset Sale, (ii) provision for the net amount of all taxes
directly payable as a result of such Asset Sale, and (iii)
amounts required to be applied to the repayment of Indebtedness
(other than Indebtedness hereunder or any Indebtedness that is
not secured by the assets that were the subject of such Asset
Sale) secured by a Permitted Lien on the assets that were the
subject of such Asset Sale.
"NET PROCEEDS PURCHASE" shall have the meaning provided
in Section 4.18.
"NET WORTH" as of any date means, with respect to any
Person, the amount of the equity of the holders of Capital Stock
of such Person that would appear on the balance sheet of such
Person as of such date, determined in accordance with GAAP,
adjusted to exclude (to the extent included in such equity) the
amount of equity attributable to any Disqualified Capital Stock.
"OBLIGATIONS" means any principal, interest, penalties,
fees, indemnifications, reimbursement obligations, damages and
other liabilities payable under the documentation governing any
Indebtedness.
"OFFICER" means, with respect to any Person, the
Chairman of the Board, the President, any Vice President, the
Chief Administrative Officer, the Chief Financial Officer, the
Controller, or the Secretary of such Person.
"OFFICERS' CERTIFICATE" means, with respect to any
Person, a certificate signed by two Officers or by an Officer and
either an Assistant Treasurer or an Assistant Secretary of such
Person and otherwise complying with the requirements of Sections
13.04 and 13.05.
"OPINION OF COUNSEL" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee complying
with the requirements of Sections 13.04 and 13.05. Unless
otherwise required by the Trustee, the legal counsel may be an
employee of or counsel to the Company or the Trustee.
"PARTNERSHIP INTEREST" means any general or limited
partnership interest and any interest as a member of a limited
liability company, or any option, warrant or other security
convertible into or exchangeable for any of the foregoing.
"PAYING AGENT" shall have the meaning provided in
Section 2.03.
"PAYMENT DEFAULT" means any default in the payment of
principal, premium, if any, or interest on any Senior
Indebtedness, beyond any applicable grace period with respect
thereto.
"PAYMENT RESTRICTION" means, with respect to a
Subsidiary of any Person, any encumbrance, restriction or
limitation, whether by operation of the terms of its charter or
by reason of any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation, on the ability of (i)
such Subsidiary to (a) pay dividends or make other distributions
on its Capital Stock or Partnership Interests or make payments on
any obligation, liability or Indebtedness owed to such Person or
any other Subsidiary of such Person, (b) make loans or advances
to such Person or any other Subsidiary of such Person, or (c)
transfer any of its properties or assets to such Person or any
other Subsidiary of such Person, or (ii) such Person or any other
Subsidiary of such Person to receive or retain any such (a)
dividends, distributions or payments, (b) loans or advances, or
(c) transfers of properties or assets.
"PERMITTED BUSINESS INVESTMENT" means any Investment
(other than Maintenance Capital Expenditures) directly related to
the TRISM Business, as it is conducted as of the Issue Date, made
by the expenditure of cash or Cash Equivalents (or by assumption
or incurrence of Indebtedness to the extent permitted by
Section 4.13(e) hereof); provided, however, that (i) the
aggregate of all Permitted Business Investments in any Yearly
Period shall not exceed $5 million (or, in the case of a Yearly
Period consisting of less than 365 days, a proportionally lower
amount based upon the number of days in such Yearly Period), and
(ii) any Permitted Business Investment which individually or
together with any similar or related Permitted Business
Investments and Permitted Business Investments constituting part
of a common plan or series of transactions involves an Investment
of an amount of $2.5 million or more must be approved by the
Board of Directors as evidenced by a Board Resolution.
"PERMITTED INVESTMENT" by any Person means (i) any
Permitted Business Investment, (ii) cash and Cash Equivalents,
(iii) Investments existing on the Issue Date, (iv) Investments by
the Company or any Wholly-owned Subsidiary of the Company in the
Company or any other Wholly-owned Subsidiary of the Company that
is a Guarantor (other than any such Investments which would
constitute Stock Payments or Restricted Debt Prepayments), and
(v) Maintenance Capital Expenditures subject to, and permitted
by, Section 4.22.
"PERMITTED JUNIOR SECURITIES" means any securities of
the Company or any other corporation that are equity securities
or are subordinated in right of payment to all Senior
Indebtedness, that may at the time be outstanding, to
substantially the same extent as, or to a greater extent than,
the Senior Subordinated Notes are so subordinated as provided in
this Indenture.
"PERMITTED LIENS" shall mean (i) Liens for taxes,
assessments, and governmental charges to the extent not required
to be paid under this Indenture; (ii) statutory Liens of
landlords and carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen, or other like Liens arising in the
ordinary course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate
process of law, and for which a reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been
made; (iii) pledges or deposits in the ordinary course of
business to secure lease obligations or nondelinquent obligations
under workers' compensation, unemployment insurance or similar
legislation; (iv) Liens to secure the performance of public
statutory obligations that are not delinquent, appeal bonds,
performance bonds or other obligations of a like nature (other
than for borrowed money); (v) Liens arising under government
contracts in the ordinary course of business that do not secure
any Indebtedness; (vi) easements, rights-of-way, restrictions,
minor defects or irregularities in title and other similar
charges or encumbrances not interfering in any material respect
with the business of the Company or any Subsidiary of the Company
incurred or arising in the ordinary course of business; (vii)
rights of banks to set off deposits against debts owed to said
banks; (viii) any interest or title of a lessor in the property
subject to any lease, other than any such interest or title
resulting from or arising out of a Default by the Company or any
Subsidiary of the Company of its obligations under such lease;
(ix) any other Liens imposed by operation of law which do not
materially affect the Company's or any of its Subsidiaries'
ability to perform its obligations under this Indenture; (x) any
Liens arising under this Indenture, (xi) Liens arising under the
Senior Secured Credit Facility; (xii) Liens securing purchase
money Indebtedness; and (xiii) Liens on property of a Person
existing at the time such Person is acquired by, or merged into
or consolidated with, the Company or a Wholly-owned Subsidiary
that is a Guarantor if (a) such Liens were in existence prior to
the contemplation of such acquisition, merger or consolidation
and do not extend to any assets other than those directly or
indirectly acquired as a result of such acquisition, merger or
consolidation, (b) such acquisition, merger or consolidation is a
Permitted Business Investment hereunder, and (c) such Liens
secure Indebtedness in an aggregate principal amount at any one
time outstanding of less than 80% of the book value of the assets
of such Person immediately prior to such acquisition, merger or
consolidation.
"PERSON" means any individual, corporation,
partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated
organization or government or other agency or political
subdivision thereof.
"PLAN OF LIQUIDATION" means, with respect to any
Person, a plan that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or
not substantially contemporaneously, in phases or otherwise) (i)
the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as
an entirety or substantially as an entirety and (ii) the
distribution of all or substantially all of the proceeds of such
sale, lease, conveyance or other disposition and all or
substantially all of the remaining assets of such Person to
holders of Capital Stock of such Person.
"PREFERRED STOCK" means, with respect to any Person,
any and all shares, interests, participations or other
equivalents (however designated) of such Person's preferred or
preference Capital Stock or Partnership Interests, whether
outstanding on the date hereof or issued after the date of this
Indenture, and including, without limitation, all classes and
series of preferred or preference stock of such Person.
"PROPERTY" means, with respect to any Person, any
interest of such Person in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible, excluding
Capital Stock in any other Person.
"QUALIFIED CAPITAL STOCK" means, with respect to any
Person, any Capital Stock or Partnership Interest of such Person
that is not Disqualified Capital Stock.
"RECORD DATE" means the Record Dates specified in the
Senior Subordinated Notes, whether or not a Business Day.
"REDEEMABLE CAPITAL STOCK" means any Capital Stock
that, (i) either by its terms, by the terms of any security into
which it is convertible or exchangeable or otherwise, is or upon
the happening of any event or passage of time would be, required
to be redeemed (in whole or in part) prior to the final Stated
Maturity of the Senior Subordinated Notes or is redeemable (in
whole or in part) at the option of the holder thereof at any time
prior to such final Stated Maturity, or (ii) is convertible into
or exchangeable for debt securities at any time prior to such
final Stated Maturity.
"REDEMPTION DATE," when used with respect to any Senior
Subordinated Note to be redeemed or purchased, means the date
fixed for such redemption or purchase pursuant to this Indenture
and the Senior Subordinated Notes.
"REDEMPTION PRICE," when used with respect to any
Senior Subordinated Note to be redeemed, means the price fixed
for such redemption pursuant to this Indenture and the Senior
Subordinated Notes.
"REGISTRAR" shall have the meaning provided in Section
2.03.
"REGISTRATION RIGHTS AGREEMENT" means the Registration
Rights Agreement dated as of the Issue Date, between the Company
and certain Holders, substantially in the form of Exhibit B
attached hereto, as such may be amended, supplemented or
otherwise modified from time to time.
"RESTRICTED DEBT PREPAYMENT" means any principal
payment, purchase, redemption, defeasance (including, but not
limited to, in substance or legal defeasance) or other
acquisition or retirement for value, directly or indirectly, by
the Company or any of its Subsidiaries, prior to the scheduled
maturity or prior to any scheduled repayment of principal or
sinking fund payment, as the case may be, on or in respect of
Indebtedness the Company or any of its Subsidiaries that is
Subordinated Indebtedness or ranks pari passu in right of payment
to the Senior Subordinated Notes or the Guarantee, as applicable.
"RESTRICTED PAYMENT" means any (i) Stock Payment, (ii)
Investment (other than a Permitted Investment) or (iii)
Restricted Debt Prepayment.
"SALE AND LEASE-BACK TRANSACTION" means, with respect
to any Person, any direct or indirect arrangement pursuant to
which Property is sold or transferred by such Person or a
subsidiary of such Person and is thereafter leased back from the
purchaser or transferee thereof by such Person or one of its
subsidiaries.
"SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
"SENIOR INDEBTEDNESS" means the principal of, premium,
if any, and interest (including interest, to the extent
allowable, accruing after the filing of a petition initiating any
proceeding under any state, federal or foreign bankruptcy laws)
on any Indebtedness of the Company (other than as otherwise
provided in this definition), whether outstanding on the Issue
Date or thereafter created, incurred or assumed, unless, in the
case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in
right of payment to the Senior Subordinated Notes.
Notwithstanding the foregoing, "Senior Indebtedness" shall not
include (i) Indebtedness evidenced by the Senior Subordinated
Notes or the Guarantees, (ii) Indebtedness that is subordinate or
junior in right of payment to any Indebtedness of the Company or
any Subsidiary, (iii) Indebtedness which when incurred and
without respect to any election under Section 1111(b) of
Title 11, United States Code, is without recourse to the Company
or any Subsidiary, (iv) Indebtedness which is represented by
Redeemable Capital Stock, (v) any liability for federal, state,
local, foreign or other taxes owed or owing by the Company or any
Subsidiary, (vi) any accounts payable to trade creditors created,
incurred or assumed by the Company or any Subsidiary of the
Company in the ordinary course of business in connection with
obtaining goods, materials or services, (vii) Indebtedness of the
Company to a Subsidiary, (viii) amounts payable on any
Indebtedness to any employee or Affiliate of the Company other
than as provided in clause (vii) (except for any Indebtedness
evidenced by any debt securities of the Company purchased by such
employee or Affiliate after such debt securities have been
registered under the Securities Act, provided that such debt
securities rank senior in right of payment to the Senior
Subordinated Notes and the issuance of the securities was
permitted by Section 4.13), and (ix) that portion of any
Indebtedness which at the time of issuance is issued in violation
of this Indenture; provided, however, that in the case of this
clause (ix), any Indebtedness issued to any Person who had no
actual knowledge that the incurrence of such Indebtedness was not
permitted under Section 4.13 and who received on the date of
issuance thereof a certificate from an officer of the Company to
the effect that the issuance of such Indebtedness would not
violate Section 4.13 shall constitute Senior Indebtedness.
Without limiting the foregoing, in the case of the Senior Secured
Credit Facility, "Senior Indebtedness" means and includes all
obligations of any borrower thereunder, including, without
limitation, principal, premium, if any, interest (including
interest accruing after the filing of a petition initiating any
proceeding under state, federal or foreign bankruptcy laws),
fees, breakage costs, reimbursement obligations, indemnities, and
all other obligations of such parties to the Lenders.
"SENIOR REPRESENTATIVE" means the agent bank under the
Senior Secured Credit Facility or any other representatives of
the holders of Designated Senior Indebtedness, as the case may
be.
"SENIOR SUBORDINATED NOTES" means the Company's 12%
Senior Subordinated Notes Due 2005, as amended or supplemented
from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture.
"SENIOR SECURED CREDIT FACILITY" means the
Post-Confirmation Loan and Security Agreement, dated as of the
date of this Indenture, by and among the Company, the
Subsidiaries of the Company signatories thereto and Lender,
together with the notes, security agreements, guarantees and
other Loan Documents (as therein defined) related thereto, as the
same may be amended, extended, renewed, restated, supplemented or
otherwise modified from time to time, pursuant to which Lender
may loan up to $45 million to the Company, and any agreement
governing Indebtedness incurred to refund or refinance the
entirety of the borrowings and commitments then outstanding or
permitted to be outstanding under such Senior Secured Credit
Facility or such agreement.
"STATED MATURITY" when used with respect to any Senior
Subordinated Note or any installment of interest thereon, means
the dates specified in such Senior Subordinated Note as the fixed
date on which the principal of such Senior Subordinated Note or
such installment of interest is due and payable, and when used
with respect to any other Indebtedness, means the date specified
in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness or any installment of
interest is due and payable.
"STOCK PAYMENT" means, with respect to any Person, (i)
the declaration or payment by such Person, directly or
indirectly, either in cash or in property, of any dividend on
(except, in the case of the Company, dividends payable solely in
Qualified Capital Stock of the Company), or the making by such
Person or any of its Subsidiaries of any other distribution in
respect of, such Person's Capital Stock or Partnership Interests
or any warrants, rights or options to purchase or acquire shares
of any class of such Capital Stock or Partnership Interests, or
(ii) the redemption, repurchase, retirement or other acquisition
for value by such Person or any of its Subsidiaries, directly or
indirectly, of such Person's or any of its Subsidiaries' or
Affiliates' Capital Stock or Partnership Interests or any
warrants, rights or options to purchase or acquire shares of any
class of such Capital Stock or Partnership Interests other than,
in the case of the Company, through the issuance in exchange
therefor solely of Qualified Capital Stock of the Company;
provided, however, that in the case of a Subsidiary of the
Company, the term "Stock Payment" shall not include any such
payment with respect to its Capital Stock or Partnership
Interests or warrants, rights or options to purchase or acquire
shares of any class of its Capital Stock or Partnership Interests
if such payment is made to the Company or a Wholly-owned
Subsidiary of the Company that is a Guarantor as of the Issue
Date.
"SUBORDINATED INDEBTEDNESS" means (i) Indebtedness of
the Company which is subordinated in right of payment to the
Senior Subordinated Notes and (ii) Indebtedness of any Subsidiary
which is subordinated in right of payment to the Guarantee.
"SUBSIDIARY" means, with respect to any Person, (i) a
corporation a majority of whose Capital Stock with voting power,
under ordinary circumstances, to elect directors is, at the date
of determination, directly or indirectly, owned by such Person,
by one or more subsidiaries of such Person or by such Person and
one or more subsidiaries of such Person or (ii) a partnership in
which such Person or a subsidiary of such Person is, at the date
of determination, a general partner of such partnership, or if
such Person or its subsidiary is entitled to receive more than
50% of the assets of such partnership upon its dissolution, or
(iii) any limited liability company or any other Person (other
than a corporation or a partnership) in which such Person, a
subsidiary of such Person or such Person and one or more
subsidiaries of such Person, directly or indirectly, at the date
of determination, has (a) at least a majority ownership interest
or (b) the power to elect or direct the election of a majority of
the directors or other governing body of such Person.
"SURVIVING PERSON" shall have the meaning provided in
Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.
Code Sections 77aaa-77bbbb), as amended, as in effect on the date
of the execution of this Indenture; provided, however, that, in
the event the Trust Indenture Act of 1939 is amended after such
date, "TIA" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939, as so amended.
"TRISM BUSINESS" means the transportation of
extraordinarily heavy or oversized loads, or cargoes with special
handling requirements, such as munitions, explosives and
radioactive and hazardous waste; the provision of capacity and
dedicated fleet management services; the provision of logistic
management services with respect to complex moves and special
projects, including those involving hazardous materials and
engineered equipment; and the provision of intermodal support
services to the transportation industry, including terminal gate
inspections and the coordination of terminal administration,
container-yard operations, maintenance and repair administration,
rail-terminal operations, chassis-pool management and asset
disposal, as such business is conducted on the Issue Date.
"TRUST OFFICER" means any officer of the Trustee
assigned by the Trustee to administer this Indenture.
"TRUSTEE" means the party named as such in this
Indenture until a successor replaces it in accordance with the
provisions of this Indenture and thereafter means such successor.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable
obligations of, or non-callable obligations guaranteed by, the
United States of America for the payment of which obligation or
guarantee the full faith and credit of the United States of
America is pledged.
"U.S. LEGAL TENDER" means such coin or currency of the
United States of America as at the time of payment shall be legal
tender for the payment of public and private debts.
"VOTING STOCK" means with respect to any Person,
securities of any class or classes of Capital Stock in such
Person entitling the holder thereof (whether at all times or at
the times that such class of Capital Stock has voting power by
reason of the happening of any contingency) to vote in the
election of members of the Board of Directors or comparable body
of such Person.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary of a
specified Person all of the shares of Capital Stock, or, if
applicable, all of the Partnership Interests, of which (other
than directors' qualifying shares) are at the time directly or
indirectly owned by the specified Person or owned by a Wholly-
owned Subsidiary of the specified Person.
"YEARLY PERIOD" means each fiscal year (consisting of
not less than four fiscal quarters) of the Company; provided that
the first Yearly Period shall begin on the Issue Date and shall
end on December 31, 2000, and the last Yearly Period shall begin
on the first day of the applicable fiscal year and shall end on
the Maturity Date.
SECTION 1.02 Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the
TIA, such provision is incorporated by reference in, and made a
part of, this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"indenture securities" means the Senior Subordinated
Notes.
"indenture security holder" means a Holder of a Senior
Subordinated Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee;
"obligor" on the indenture securities means the
Company, any Guarantor, or any other obligor on the Senior
Subordinated Notes or the Guarantee.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute
or defined by Commission rule and not otherwise defined herein
have the meanings assigned to them therein.
SECTION 1.03 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein", "hereof", "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(7) "including" is not intended to be a limiting term;
(8) references to sections of or rules under the Securities Act
or the Exchange Act shall be deemed to include substitute,
replacement or successor sections or rules adopted by the
Commission from time to time; and
(9) all references to amounts of money or $ mean U.S. Dollars.
ARTICLE TWO
THE SENIOR SUBORDINATED NOTES
SECTION 2.01 Form and Dating.
The Senior Subordinated Notes, the notations thereon
relating to the Guarantee and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A.
The Senior Subordinated Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. The
Company and the Trustee shall approve the form of the Senior
Subordinated Notes and any notation, legend or endorsement on
them. Each Senior Subordinated Note shall be dated the date of
its authentication.
The terms and provisions contained in the Senior
Subordinated Notes and the notation of guarantee shall
constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company, the
Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and
to be bound thereby.
SECTION 2.02 Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary,
shall sign, or one Officer shall sign and one Officer or an
Assistant Secretary (each of whom shall, in each case, have been
duly authorized by all requisite corporate actions) shall attest
to, the Senior Subordinated Notes for the Company by manual or
facsimile signature. Each Guarantor shall execute the notation
of guarantee in the manner set forth in Section 12.10.
If an Officer whose signature is on a Senior
Subordinated Note was an Officer at the time of such execution
but no longer holds that office at the time the Trustee
authenticates the Senior Subordinated Note, the Senior
Subordinated Note shall be valid nevertheless.
A Senior Subordinated Note shall not be valid until an
authorized signatory of the Trustee manually signs the
certificate of authentication on the Senior Subordinated Note.
The signature shall be conclusive evidence that the Senior
Subordinated Note has been authenticated under this Indenture.
The Trustee shall authenticate on the Issue Date,
Senior Subordinated Notes for original issue in the aggregate
principal amount of up to $30,000,000, upon a written order of
the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of Senior
Subordinated Notes to be authenticated and the date on which the
Senior Subordinated Notes are to be authenticated. The aggregate
principal amount of Senior Subordinated Notes outstanding at any
time may not exceed $30,000,000, except as provided in Section
2.07. Upon the written order of the Company in the form of an
Officers' Certificate, the Trustee shall authenticate Senior
Subordinated Notes in substitution of Senior Subordinated Notes
originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent
reasonably acceptable to the Company to authenticate Senior
Subordinated Notes. Unless otherwise provided in the appointment,
an authenticating agent may authenticate Senior Subordinated
Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates
of the Company.
The Senior Subordinated Notes shall be issuable only in
registered form without coupons in denominations of $1,000 and
any integral multiple thereof.
SECTION 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency in New
York, New York where (a) Senior Subordinated Notes may be
presented or surrendered for registration of transfer or for
exchange ("Registrar"), (b) Senior Subordinated Notes may be
presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Company in respect of the
Senior Subordinated Notes and this Indenture may be served. The
Company may also from time to time designate one or more other
offices or agencies where the Senior Subordinated Notes may be
presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or
agency in New York, New York for such purposes. The Company may
act as its own Registrar or Paying Agent, except that for the
purposes of Articles Three and Nine and Section 4.18, neither the
Company nor any of its Subsidiaries or Affiliates shall act as
Paying Agent. The Registrar shall keep a register of the Senior
Subordinated Notes and of their transfer and exchange. The
Company, upon notice to the Trustee, may have one or more co-
Registrars and one or more additional paying agents reasonably
acceptable to the Trustee. The term "Paying Agent" includes any
additional paying agent. The Company initially appoints the
Trustee as Registrar and Paying Agent until such time as the
Trustee has resigned or a successor has been appointed.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which
agreement shall incorporate provisions of the TIA and implement
the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee, in advance, of the name and
address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such.
SECTION 2.04 Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than
the Trustee to agree in writing that each Paying Agent shall hold
in trust for the benefit of Holders or the Trustee all assets
held by the Paying Agent for the payment of principal of, or
interest on, the Senior Subordinated Notes (whether such assets
have been distributed to it by the Company or any other obligor
on the Senior Subordinated Notes), and shall notify the Trustee
of any Default by the Company (or any other obligor on the Senior
Subordinated Notes) in making any such payment. If the Company
or its Subsidiary or Affiliate acts as Paying Agent, it shall
segregate such assets and hold them as a separate trust fund.
The Company at any time may require a Paying Agent to distribute
all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance
of any Default, upon written request to a Paying Agent, require
such Paying Agent to distribute all assets held by it to the
Trustee and to account for any assets distributed. Upon
distribution to the Trustee of all assets that shall have been
delivered by the Company (or other obligor or guarantor on the
Senior Subordinated Notes) to the Paying Agent, the Paying Agent
shall have no further liability for such assets.
SECTION 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Holders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least ten
days prior to 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, which list may be conclusively relied
upon by the Trustee.
SECTION 2.06 Transfer and Exchange.
When Senior Subordinated Notes are presented to the
Registrar or a co-Registrar with a request to register the
transfer of such Senior Subordinated Notes or to exchange such
Senior Subordinated Notes for an equal principal amount of Senior
Subordinated Notes of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction
are met; provided, however, that the Senior Subordinated Notes
surrendered for registration of transfer or exchange shall be
duly endorsed or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Registrar or co-
Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registrations of transfers
and exchanges, the Company shall execute and the Trustee shall
authenticate Senior Subordinated Notes at the Registrar's or co-
Registrar's request. 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 or similar
governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable
upon exchanges or transfers pursuant to Sections 2.02, 2.07,
2.10, 3.03, 3.07, 4.18 or 10.06). The Registrar or co-Registrar
shall not be required to register the transfer of or exchange of
any Senior Subordinated Note (i) during a period beginning at the
opening of business 15 days before the day of any selection of
Senior Subordinated Notes for redemption under Section 3.02 and
ending at the close of business on such day of selection and (ii)
selected for redemption in whole or in part pursuant to Article
Three, except the unredeemed portion of any Senior Subordinated
Note being redeemed in part.
SECTION 2.07 Replacement Senior Subordinated Notes.
If a mutilated Senior Subordinated Note is surrendered
to the Trustee or if the Holder of a Senior Subordinated Note
claims that the Senior Subordinated Note has been lost, destroyed
or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Senior Subordinated Note if the
Trustee's requirements are met. If required by the Trustee or
the Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the
Trustee, to protect the Company, the Trustee or any Agent from
any loss which any of them may suffer if a Senior Subordinated
Note is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Senior
Subordinated Note, including reasonable fees and expenses of
counsel.
Every replacement Senior Subordinated Note is an
additional obligation of the Company and is guaranteed by each
Guarantor in the same manner as other Senior Subordinated Notes
duly issued hereunder.
SECTION 2.08 Outstanding Senior Subordinated Notes.
Senior Subordinated Notes outstanding at any time are
all the Senior Subordinated Notes that have been authenticated by
the Trustee except those canceled by it, those delivered to it
for cancellation and those described in this Section 2.08 as not
outstanding. A Senior Subordinated Note does not cease to be
outstanding because the Company, the Guarantors or any of their
respective Affiliates holds the Senior Subordinated Note.
If a Senior Subordinated Note is replaced pursuant to
Section 2.07 (other than a mutilated Senior Subordinated Note
surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced
Senior Subordinated Note is held by a bona fide purchaser. A
mutilated Senior Subordinated Note ceases to be outstanding upon
surrender of such Senior Subordinated Note and replacement
thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying
Agent (other than the Company or its Subsidiary or Affiliate)
holds U.S. Legal Tender sufficient to pay all of the principal
and premium, if any, and interest due on the Senior Subordinated
Notes payable on that date, then on and after that date such
Senior Subordinated Notes (to the extent of the principal amount
redeemed, in the case of a partial redemption) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09 Treasury Senior Subordinated Notes.
In determining whether the Holders of the required
principal amount of Senior Subordinated Notes have concurred in
any direction, waiver or consent, Senior Subordinated Notes owned
by the Company, the Guarantors or any of their respective
Affiliates shall be disregarded, except that, for the purposes of
determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Senior Subordinated
Notes that a Trust Officer of the Trustee knows or has reason to
know are so owned shall be disregarded.
The Company shall notify the Trustee, in writing (which
notice shall constitute actual notice for purposes of the
foregoing sentence), when it, the Guarantors or any of their
respective Affiliates repurchases or otherwise acquires Senior
Subordinated Notes, of the aggregate principal amount of such
Senior Subordinated Notes so repurchased or otherwise acquired
and such other information as the Trustee may reasonably request
and the Trustee shall be entitled to rely thereon.
SECTION 2.10 Temporary Senior Subordinated Notes.
Until definitive Senior Subordinated Notes are ready
for delivery, the Company may prepare and the Trustee shall
authenticate temporary Senior Subordinated Notes. Temporary
Senior Subordinated Notes shall be substantially in the form of
definitive Senior Subordinated Notes but may have variations that
the Company considers appropriate for temporary Senior
Subordinated Notes. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive
Senior Subordinated Notes in exchange for temporary Senior
Subordinated Notes, without charge to the Holder. Until so
exchanged, the temporary Senior Subordinated Notes shall be
entitled to the same benefits under this Indenture as definitive
Senior Subordinated Notes.
SECTION 2.11 Cancellation.
The Company at any time may deliver Senior Subordinated
Notes to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Senior Subordinated
Notes surrendered to them for registration of transfer, exchange
or payment. The Trustee, or at the direction of the Trustee, the
Registrar or the Paying Agent (other than the Company or its
Subsidiary or Affiliate), and no one else, shall cancel and
dispose of all Senior Subordinated Notes surrendered for
registration of transfer, exchange, payment or cancellation and
shall deliver a certificate of such destruction to the Company.
Subject to Section 2.07, the Company may not issue new Senior
Subordinated Notes to replace Senior Subordinated Notes that it
has paid or delivered to the Trustee for cancellation. If the
Company or any of its Subsidiaries shall acquire any of the
Senior Subordinated Notes, such acquisition shall not operate as
a redemption or satisfaction of the Indebtedness represented by
such Senior Subordinated Notes unless and until the same are
surrendered to the Trustee for cancellation pursuant to this
Section 2.11.
SECTION 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the
Senior Subordinated Notes, it shall pay the defaulted interest,
plus (to the extent lawful) any interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special
record date, which date shall be the fifteenth day next preceding
the date fixed by the Company for the payment of defaulted
interest or the next succeeding Business Day if such date is not
a Business Day. At least 15 days before the subsequent special
record date, the Company shall mail to each Holder, with a copy
to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if
any, to be paid.
SECTION 2.13 CUSIP Number.
The Company in issuing the Senior Subordinated Notes
shall use a "CUSIP" number and the Trustee shall use the CUSIP
number in notices of redemption or exchange as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the
CUSIP number printed in the notice or on the Senior Subordinated
Notes, and that reliance may be placed only on the other
identification numbers printed on the Senior Subordinated Notes.
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee.
If the Company elects to redeem Senior Subordinated
Notes pursuant to Section 3.07 hereof, it shall notify the
Trustee of the Redemption Date and the principal amount of Senior
Subordinated Notes to be redeemed and whether it wants the
Trustee to give notice of redemption to the Holders at least 30
days (unless shorter notice shall be satisfactory to the Trustee,
as evidenced in a writing signed on behalf of the Trustee) but
not more than 60 days before the Redemption Date. Any such
notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void
and of no effect.
The Company shall give each notice provided for in this
Section 3.01, at its expense, at least 30 days before the
applicable Redemption Date (unless a shorter notice period shall
be satisfactory to the Trustee, as evidenced in a writing signed
on behalf of the Trustee), together with an Officers' Certificate
and an Opinion of Counsel stating that such redemption shall
comply with the conditions contained herein and in the Senior
Subordinated Notes.
SECTION 3.02 Selection of Senior Subordinated Notes to Be
Redeemed.
If fewer than all of the Senior Subordinated Notes are
to be redeemed, the Trustee shall select the Senior Subordinated
Notes to be redeemed on a pro rata basis (or on as nearly a pro
rata basis as is practicable, and in such case, by lot or by such
other method as the Trustee shall determine to be fair and
appropriate) and in such manner as complies with applicable legal
and other requirements, if any.
The Trustee shall make the selection from the Senior
Subordinated Notes outstanding and not previously called for
redemption and shall promptly notify the Company in writing of
the Senior Subordinated Notes selected for redemption and, in the
case of any Senior Subordinated Note selected for partial
redemption, the principal amount thereof to be redeemed. Senior
Subordinated Notes in denominations of $1,000 or any lesser
amount may be redeemed only in whole. The Trustee may select for
redemption portions (equal to $1,000 or any integral multiple
thereof) of the principal of Senior Subordinated Notes that have
denominations larger than $1,000; provided, however, that the
Trustee may select for redemption any Senior Subordinated Note
that has a principal amount of less than $1,000. Provisions of
this Indenture that apply to Senior Subordinated Notes called for
redemption also apply to portions of Senior Subordinated Notes
called for redemption.
SECTION 3.03 Notice of Redemption.
At least 30 days (unless shorter notice shall be
satisfactory to the Trustee, as evidenced in a writing signed on
behalf of the Trustee) but not more than 60 days before a
Redemption Date, the Company shall mail a notice of redemption by
first class mail to each Holder whose Senior Subordinated Notes
are to be redeemed at its registered address. At the Company's
request, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense. Each notice for
redemption shall identify the Senior Subordinated Notes to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Senior Subordinated Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price
and accrued interest, if any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Senior Subordinated Notes called for
redemption ceases to accrue on and after the Redemption Date, and
the only remaining right of the Holders of such Senior
Subordinated Notes is to receive payment of the Redemption Price
upon surrender to the Paying Agent of the Senior Subordinated
Notes redeemed;
(6) if any Senior Subordinated Note is being redeemed in part,
the portion of the principal amount of such Senior Subordinated
Note to be redeemed and that, after the Redemption Date, and upon
surrender of such Senior Subordinated Note, a new Senior
Subordinated Note or Senior Subordinated Notes in aggregate
principal amount equal to the unredeemed portion thereof will be
issued;
(7) if fewer than all the Senior Subordinated Notes are to be
redeemed, the identification of the particular Senior
Subordinated Notes (or portion thereof) to be redeemed, as well
as the aggregate principal amount of Senior Subordinated Notes to
be redeemed and the aggregate principal amount of Senior
Subordinated Notes to be outstanding after such partial
redemption; and
(8) the Paragraph of the Senior Subordinated Notes or Section of
this Indenture pursuant to which the Senior Subordinated Notes
are to be redeemed.
SECTION 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.03, Senior Subordinated Notes called for redemption
become due and payable on the Redemption Date and at the
Redemption Price. Upon surrender to the Trustee or Paying Agent,
such Senior Subordinated Notes called for redemption shall be
paid at the Redemption Price.
SECTION 3.05 Deposit of Redemption Price.
Prior to 10:00 AM, New York City time, on each
Redemption Date, the Company shall deposit with the Paying Agent
U.S. Legal Tender sufficient to pay the Redemption Price of all
Senior Subordinated Notes to be redeemed on that date (other than
Senior Subordinated Notes or portions thereof called for
redemption on that date which have been delivered by the Company
to the Trustee for cancellation). The Paying Agent shall
promptly return to the Company any U.S. Legal Tender so deposited
which is not required for that purpose upon the written request
of the Company, except with respect to monies owed as obligations
to the Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph,
then, unless the Company defaults in the payment of such
Redemption Price and accrued interest, if any, interest on the
Senior Subordinated Notes to be redeemed will cease to accrue on
and after the applicable Redemption Date, whether or not such
Senior Subordinated Notes are presented for payment.
SECTION 3.06 Senior Subordinated Notes Redeemed in Part.
Upon surrender of a Senior Subordinated Note that is to
be redeemed in part, the Trustee shall authenticate for the
Holder a new Senior Subordinated Note or Senior Subordinated
Notes equal in principal amount to the unredeemed portion of the
Senior Subordinated Note surrendered.
SECTION 3.07 Optional Redemption.
The Senior Subordinated Notes will be redeemable, at
the option of the Company, in whole at any time or in part, at
any time or from time to time, on and after the Issue Date, at a
Redemption Price equal to 101% of the principal amount thereof,
plus, in each case, accrued interest thereon to the Redemption
Date.
SECTION 3.08 Mandatory Purchase Upon Asset Sale.
As more particularly described in Section 4.18 of this
Indenture, the Senior Subordinated Notes shall be mandatorily
purchased by the Company, in whole or in part, upon certain Asset
Sales.
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Senior Subordinated Notes.
(a) The Company shall punctually pay the principal of
and interest on the Senior Subordinated Notes on the dates and in
the manner provided in the Senior Subordinated Notes. An
installment of principal of or interest on the Senior
Subordinated Notes shall be considered paid on the date it is due
if the Trustee or Paying Agent (other than the Company or its
Subsidiary or Affiliate) holds, prior to 10:00 AM New York City
time, on that date U.S. Legal Tender designated for and
sufficient to pay all principal, premium and interest then due.
(b) The Company shall pay interest on overdue
principal and interest on overdue installments of interest and
premium, to the extent lawful, at a rate equal to the rate of
interest otherwise payable on the Senior Subordinated Notes
(after giving effect to any increase thereof pursuant to
Section 4.04(a) hereof), plus 2.00% per annum.
SECTION 4.02 Maintenance of Office or Agency.
The Company shall maintain in New York, New York, the
office or agency required under Section 2.03 hereof. The Company
shall give prior notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time
the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may
be made or served at the address of the Trustee set forth in
Section 13.02.
SECTION 4.03 Limitation on Restricted Payments.
The Company shall not, and shall cause each of its
Subsidiaries not to, directly or indirectly, make any Restricted
Payment.
SECTION 4.04 Minimum Net Worth.
(a) If the Company's Net Worth at the end of any
fiscal quarter is equal to or less than the Minimum Net Worth,
then, commencing on the date on which the Company shall give the
Trustee written notice of any such deficiency, the Senior
Subordinated Notes shall thereafter bear interest at the rate of
13% per annum. The Senior Subordinated Notes shall bear interest
at such rate until the date (the "Deficiency Correction Date") on
which the Company shall give the Trustee written notice that its
Net Worth, calculated as of the end of the fiscal quarter
immediately preceding, is greater than the Minimum Net Worth.
The Trustee shall notify the Holders that it has received such a
notice from the Company within 10 days after it receives such
notice. Subject to Section 4.01(b) and the first sentence of
this paragraph, from and after the Deficiency Correction Date,
the Senior Subordinated Notes shall bear interest at the rate
specified therein. Any notice given to the Trustee pursuant to
this paragraph shall be accompanied by an Officers' Certificate
confirming the information set forth in such notice.
(b) The Company shall give the Trustee notice that its
Net Worth is equal to or less than the Minimum Net Worth at the
end of any fiscal quarter in which its Net Worth is equal to or
less than such amount if such quarter is one of the first three
quarters of any fiscal year of the Company, within 45 days after
the end of such quarter and, if such quarter is the fourth
quarter of any fiscal year of the Company, within 90 days after
the end of such fiscal year. The Trustee shall notify the
Holders that it has received such a notice from the Company
within 10 days after it receives such notice.
SECTION 4.05 Corporate Existence.
Except as otherwise provided by Article Five, the
Company shall and shall cause its Subsidiaries to do or cause to
be done all things necessary to preserve and keep in full force
and effect its corporate existence and the corporate, partnership
or other existence of each of its Subsidiaries in accordance with
the respective organizational documents of each such entity and
the rights (charter and statutory), licenses and franchises of
the Company and each of its Subsidiaries; provided, however, that
the Company shall not be required to preserve, with respect to
itself, any right, license or franchise, and with respect to any
of its Subsidiaries, any such right, license or franchise, or the
corporate, partnership or other existence of such Subsidiaries,
if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole,
and that the loss thereof is not adverse in any material respect
to the Holders.
SECTION 4.06 Payment of Taxes and Other Claims.
The Company shall and shall cause its Subsidiaries to
pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all taxes, assessments and
governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed
upon the Company or any of its Subsidiaries or Properties of the
Company or any of their Subsidiaries and (ii) all lawful claims
for labor, materials and supplies that, if unpaid, might by law
become a Lien upon the Property of the Company or any of its
Subsidiaries; provided, however, that the Company and its
Subsidiaries shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or
claim if either (a) the amount, applicability or validity thereof
is being contested in good faith by appropriate proceedings and
an adequate reserve has been established therefor to the extent
required by GAAP or (b) the failure to make such payment or
effect such discharge (together with all other such failures)
would not have a material adverse effect on the financial
condition or results of operations of the Company and its
Subsidiaries taken as a whole.
SECTION 4.07 Maintenance of Properties and Insurance.
(a) The Company shall cause all Properties used or
useful to the conduct of its business or the business of any of
its Subsidiaries to be maintained and kept in good condition,
repair and working order and supplied with all necessary
equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereto, all
as in their judgment may be necessary, so that the business
carried on in connection therewith may be properly and
advantageously conducted at all times unless the failure to so
maintain such Properties (together with all other such failures)
would not have a material adverse effect on the financial
condition or results of operations of the Company and its
Subsidiaries taken as a whole; provided, however, that nothing in
this Section 4.07 shall prevent the Company or any of its
Subsidiaries from discontinuing the operation or maintenance of
any of such Properties, or disposing of any of them, if such
discontinuance or disposal would not be disadvantageous in any
material respect to the Company and is either (i) in the ordinary
course of business, or (ii) otherwise permitted by this
Indenture.
(b) The Company shall provide or cause to be provided,
for itself and each of its Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds
that, in the reasonable, good faith opinion of the Company are
adequate and appropriate for the conduct of the business of the
Company and its Subsidiaries in a prudent manner, with reputable
insurers, in such amounts, with such deductibles, and by such
methods as shall be either (i) consistent with past practices of
the Company or the applicable Subsidiary or (ii) customary, in
the reasonable, good faith opinion of the Company, for
corporations similarly situated in the industry.
SECTION 4.08 Compliance Certificate; Notice of Default.
(a) The Company and each Guarantor shall deliver to
the Trustee within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company, and
within 120 days after the end of the last fiscal quarter of each
such fiscal year, an Officers' Certificate, complying with
Section 314(a)(4) of the TIA, stating that a review of its
activities and the activities of its Subsidiaries during the
preceding fiscal quarter (or, in the case of the last fiscal
quarter, the preceding fiscal year) has been made under the
supervision of the signing Officers with a view to determining
whether each has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each
such Officer signing such certificate, that to the best of his
knowledge the Company and its respective Subsidiaries during such
preceding fiscal quarter (or year, as appropriate) has kept,
observed, performed and fulfilled each and every such covenant
and that no Default or Event of Default under this Indenture, or
event of default under the Senior Secured Credit Facility or
event of default under any other bond, debenture, note or other
evidence of indebtedness of the Company or any of its
Subsidiaries, or under any mortgage, Indenture or other
instrument (as that term is used in Section 6.01(4) occurred
during such quarter (or year, as appropriate) or, if such signers
do know of such an occurrence, the certificate shall describe the
occurrence and its status with particularity. The Officers'
Certificate shall disclose the Company's Net Worth at the end of
such fiscal quarter (or year, as appropriate) and shall also
notify the Trustee should the Company elect to change the manner
in which it fixes its fiscal year end.
(b) The Company shall deliver to the Trustee within
120 days after the end of each fiscal year a written statement by
the Company's independent certified public accountants stating
(A) that their audit examination has included a review of the
terms of this Indenture and the Senior Subordinated Notes as they
relate to accounting matters, and (B) whether, in connection with
their audit examination, any Default has come to their attention
and if such a Default has come to their attention, specifying the
nature and period of existence thereof.
(c) The Company shall and shall cause each of its
Subsidiaries to deliver to the Trustee, forthwith upon becoming
aware, and in any event within 5 days after the occurrence, of
(i) any Default or Event of Default under this Indenture; (ii)
any event of default under the Senior Secured Credit Facility or
any event of default under any other bond, debenture, note or
other evidence of Indebtedness of the Company or any of its
Subsidiaries, or under any mortgage, indenture or other
instrument (as that term is used in Section 6.01(4)); and (iii)
any decline in Net Worth such that the Net Worth is equal to or
less than the Minimum Net Worth at the end of any fiscal quarter
or any subsequent increase in Net Worth above such amount at the
end of any fiscal quarter, an Officers' Certificate specifying
with particularity such event.
SECTION 4.09 Compliance with Laws.
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of
America and any other country in which the Company or any
Subsidiary conducts business, all states and municipalities
thereof, and of any governmental department, commission, board,
regulatory authority, bureau, agency and instrumentality of the
foregoing, in respect of the conduct of their respective
businesses and the ownership of their respective properties,
except such as are being contested in good faith and by
appropriate proceedings and except for such noncompliances as
would not in the aggregate have a material adverse effect on the
financial condition or results of operations of the Company and
its Subsidiaries taken as a whole.
SECTION 4.10 Commission Reports.
Whether or not the Company is subject to Section 13 or
15(d) of the Exchange Act, or any successor provision thereto,
the Company shall file with the Commission the annual reports,
quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to such
Section 13 or 15(d) or any successor provision thereto if the
Company were subject thereto, such documents to be filed with the
Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required to
file them. The Company shall also (whether or not it is required
to file reports with the Commission), within 30 days of each
Required Filing Date, file with the Trustee copies of the annual
reports, quarterly reports and other documents (without exhibits)
which the Company has filed or would have filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act,
any successor provisions thereto or this covenant. The Trustee
shall furnish copies of any such reports and other documents to
any Holder upon such Holder's written request. The Company shall
not be required to file any report with the Commission if the
Commission does not permit such filing. The Company shall also
comply with the other provisions of TIA Section 314(a).
SECTION 4.11 Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Guarantors covenants (to
the extent that each 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 any of
the Company or the Guarantors from paying all or any portion of
the principal of or interest or premium on the Senior
Subordinated Notes or the Guarantee as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which
may affect the covenants or the performance of this Indenture;
and (to the extent that each may lawfully do so) each of the
Company and the Guarantors hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 4.12 Limitation on Transactions with Affiliates.
(a) The Company shall not and shall not permit any of
its Subsidiaries to (i) sell, lease, transfer, issue or otherwise
dispose of any of its Properties or assets or securities to, (ii)
purchase any Property, assets or securities from, (iii) make any
Investment in, or (iv) enter into or suffer to exist any contract
or agreement with or for the benefit of, an Affiliate of the
Company or any of its Subsidiaries (an "Affiliate Transaction"),
other than Affiliate Transactions permitted under the following
paragraph, unless the Board of Directors of the Company, pursuant
to a Board Resolution, reasonably and in good faith determines
that such Affiliate Transaction is fair to the Company or such
Subsidiary, as the case may be, and is on terms at least as
favorable as might reasonably have been obtainable at such time
from an unaffiliated party. All Affiliate Transactions (and each
series of related Affiliate Transactions which are similar or
part of a common plan) involving aggregate payments or other
Property with a fair market value in excess of $50,000, shall be
approved by a majority of the disinterested members of the Board
of Directors of the Company, such approval to be evidenced by a
Board Resolution stating that such Board of Directors has
determined that such transaction complies with the foregoing
provisions.
(b) The provisions of the foregoing paragraph shall
not apply to (i) reasonable and customary fees and compensation
paid to, and indemnity (other than for fraud or intentional
misrepresentation) provided on behalf of, officers, directors,
employees or consultants of the Company or any of its
Subsidiaries, as determined in good faith by the Board of
Directors of the Company or any such Subsidiary or the senior
management thereof, and (ii) transactions exclusively between or
among the Company and any of its Wholly-owned Subsidiaries that
are Guarantors as of the Issue Date or exclusively between or
among such Wholly-owned Subsidiaries that are Guarantors as of
the Issue Date, provided such transactions are not otherwise
prohibited by this Indenture.
SECTION 4.13 Limitation on Incurrences of Additional
Indebtedness.
(a) Except as set forth in this Section 4.13, the
Company will not, and will not permit any of its Subsidiaries to,
create, incur, assume or, directly or indirectly, guarantee the
payment of any Indebtedness, except that the Company and its
Subsidiaries may incur Indebtedness if at the time of such event
and after giving effect thereto on a pro forma basis the
Company's Fixed Charge Coverage Ratio for the four full fiscal
quarters immediately preceding such event, taken as one period
(and calculated on the assumptions that (a) such Indebtedness had
been incurred on the first day of such four-quarter period, (b)
if applicable, the proceeds therefrom had been used to repay, on
the first day of such four-quarter period, Indebtedness actually
repaid with such proceeds, (c) in the case of acquisitions which
occurred during such four-quarter period or subsequent to such
four-quarter period and/or prior to the date of the transaction
giving rise to the need to calculate the Fixed Charge Coverage
Ratio on a pro forma basis, on the assumption that such
transaction occurred on the first day of such four-quarter
period, (d) in the case of the incurrence of any Indebtedness
during such four-quarter period or subsequent to such four-
quarter period and on or prior to the date of the transaction
giving rise to the need to calculate the Fixed Charge Coverage
Ratio on a pro forma basis, on the assumption that such
transaction occurred on the first day of such four-quarter
period, and (e) in the case of any disposition of assets during
such four-quarter period (or subsequent to such four-quarter
period and/or prior to the date of the transaction giving rise to
the need to calculate the Fixed Charge Coverage Ratio) which
would require pro forma financial information under applicable
accounting rules of the Commission or which results in the
assumption, repayment, defeasance or discharge of any
Indebtedness, on the assumptions that such disposition had
occurred on the first day of such four-quarter period with the
appropriate adjustments with respect to such disposition being
included in such pro forma calculation, and that any Indebtedness
assumed, repaid, defeased or otherwise retired in connection with
such disposition was also retired on such date), would have been
at least equal to 2.0:1.0 if incurred during the period from the
Issue Date through December 31, 2000 and 2.25:1.0 if incurred
thereafter. For purposes of this Indenture, Indebtedness
incurred by any Person that is not the Company or a Subsidiary,
which Indebtedness is outstanding at the time such Person is
acquired as a Subsidiary by, becomes, or is merged into or
consolidated with, such Subsidiary or the Company, shall be
deemed to have been incurred or issued, as the case may be, at
the time such Person is acquired as a Subsidiary by, becomes, or
is merged into or consolidated with, such Subsidiary or the
Company. Any provision contained in this Section 4.13(a) to the
contrary notwithstanding, only those fiscal quarters that begin
on or after January 1, 2000, shall be considered in making the
calculations with respect to the Company's Fixed Charge Coverage
Ratio required hereby.
(b) (i) Notwithstanding Section 4.13(a), the Company
and any of its Wholly-owned Subsidiaries that are Guarantors
may incur Indebtedness pursuant to the Senior Secured Credit
Facility in an aggregate principal amount at any time
outstanding not to exceed $45 million subject to permanent
reduction as provided in Section 4.18; and
(ii) The Company shall promptly notify the Trustee
in writing of any reduction, refunding or refinancing of the
Senior Secured Credit Facility.
(c) Notwithstanding Section 4.13(a), the Company and
its Subsidiaries may incur Indebtedness evidenced by the Senior
Subordinated Notes and the Guarantee.
(d) Notwithstanding Section 4.13(a), the Company may
incur Indebtedness to any Guarantor, to the extent permitted by
Sections 4.03 and 4.12.
(e) Notwithstanding Section 4.13(a), the Company and
its Wholly-owned Subsidiaries that are Guarantors may incur
Indebtedness if such Indebtedness was incurred in connection with
the grant of Liens of the type described in clause (xiii) of the
definition of the term "Permitted Liens" and the transaction
pursuant to which such Indebtedness was incurred, and the amount
of such Indebtedness, satisfies and complies with all of the
requirements of such clause (xiii).
SECTION 4.14 Limitation on Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or suffer to
exist, or allow to become effective any consensual Payment
Restriction with respect to any of its Subsidiaries, except for
(i) any such restrictions contained in (a) the Senior Secured
Credit Facility and related documents as in effect on the Issue
Date as any such payment restriction may apply to any present or
future Subsidiary, (b) this Indenture, (c) secured Indebtedness
otherwise permitted to be incurred or to remain outstanding
pursuant to Sections 4.13 and 4.15 hereof and that limits the
right of the debtor to dispose of the assets securing such
Indebtedness; (ii) customary provisions restricting subletting,
transfer or assignment of any lease or agreement entered into by
the Company or a Subsidiary or the assets (other than cash)
subject thereto; (iii) customary pre-closing restrictions with
respect to the Company or a Subsidiary pursuant to an agreement
that has been entered into for the sale or disposition of all or
a portion of the Capital Stock or assets of the Company or such
Subsidiary, which is not otherwise prohibited by this Indenture;
and (iv) restrictions contained in Indebtedness incurred to
refinance, refund, extend or renew Indebtedness referred to in
clause (i) above or amendments to the Indebtedness referred to in
clause (i) above; provided that the Payment Restrictions
contained therein are not any more restrictive than those
provided for in such Indebtedness being refinanced, refunded,
extended or renewed.
SECTION 4.15 Limitation on Liens.
The Company shall not and shall not permit any of its
Subsidiaries to create, incur, assume or suffer to exist any
Liens upon any of their respective assets except for Permitted
Liens.
SECTION 4.16 Restrictions on Sale and Ownership of
Subsidiaries.
The Company shall not permit any of its Subsidiaries to
issue any Capital Stock or Partnership Interest (other than to
the Company or to a Wholly-owned Subsidiary that is a Guarantor
as of the Issue Date) or permit any Person (other than the
Company or a Wholly-owned Subsidiary that is a Guarantor as of
the Issue Date) to own any Capital Stock or Partnership Interest
of any Subsidiary of the Company, and the Company shall not, and
shall cause its Subsidiaries not to, own, acquire or permit to
exist any Subsidiary that is not a Wholly-owned Subsidiary and a
Guarantor, in each case other than (i) a sale of 100% of the
Capital Stock or Partnership Interests of a Subsidiary which is
not otherwise prohibited by this Indenture, and (ii) any
Subsidiary (A) formed after the Issue Date, (B) in which all
Investments made or held by the Company and its Subsidiaries
constitute Permitted Business Investments made pursuant to and in
compliance with the definition of such term, and (C) the
formation and capitalization of which does not cause or
constitute a Default or Event of Default hereunder.
SECTION 4.17 Payments for Consent.
Neither the Company nor any Affiliate of the Company
shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to
any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or
the Senior Subordinated Notes unless such consideration is paid
to all Holders that so consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
SECTION 4.18 Limitation on Asset Sales.
(a) The Company will not, and will not permit any of
its Subsidiaries to, consummate any Asset Sale unless (i) the
Company or the applicable Subsidiary receives consideration at
the time of such Asset Sale (the "Asset Sale Closing Date") at
least equal to the Fair Market Value of the assets sold or
otherwise disposed of or issued (as determined in good faith by
the Board of Directors of the Company or, with respect to assets
having a Fair Market Value in excess of $5 million, an
Independent Financial Advisor) and at least 90% of the fair
market value (as so determined) of the consideration so received
by the Company or such Subsidiary is in the form of cash;
provided, however, that the amount of (A) any liabilities of the
Company or its Subsidiaries (other than liabilities owed to the
Company, any of its Subsidiaries or any of their Affiliates) that
are assumed by the transferee in any such transaction (as shown
on the Company's or such Subsidiary's most recent balance sheet)
pursuant to a customary novation agreement that irrevocably
releases the Company and its Subsidiaries from further liability
and (B) any Cash Equivalents received by the Company or any
Subsidiary from such transferee that are immediately converted by
the Company or such Subsidiary into cash shall both be deemed to
be cash for purposes of this Section 4.18; and (ii) the Net Cash
Proceeds received by the Company or such Subsidiary from such
Asset Sale are applied in compliance with Section 4.18(b) hereof.
(b) (i) If the Company or any of its Subsidiaries
engages in an Asset Sale, the Company or such Subsidiary shall
apply the Net Cash Proceeds thereof in the following order:
(A) first, toward the payment of the Indebtedness
(other than Indebtedness under the Senior Secured
Credit Facility or the Senior Subordinated Notes) which
is senior in right of payment to the payment of the
Senior Subordinated Notes; and
(B) second, toward the payment of the
Indebtedness under the Senior Secured Credit Facility;
provided, however, that any such payment shall result
in a permanent reduction of the Lender's commitment
thereunder and a corresponding permanent reduction in
the maximum amount of Indebtedness permitted under
Section 4.13(b)(i).
(ii) All Net Cash Proceeds not applied pursuant to
Section 4.18(b)(i) ("Excess Proceeds") shall be delivered to
the Trustee not later than 90 days after the applicable
Asset Sale Closing Date (or 30 days after such later date it
is first deemed to be an Asset Sale), and shall be applied
to the purchase of Senior Subordinated Notes pursuant to a
Net Proceeds Purchase as set forth below. To the extent
that any such Excess Proceeds remain after the application
of the Net Cash Proceeds described in Section 4.18(b)(i),
the Company shall purchase Senior Subordinated Notes as
described in Section 4.18(c) (a "Net Proceeds Purchase") at
a price equal to 101% of the aggregate principal amount
thereof, plus accrued interest to the date of purchase,
which shall in the aggregate equal the amount of Excess
Proceeds required by this Section 4.18 to be made available
to purchase Senior Subordinated Notes in a Net Proceeds
Purchase.
(c) Notice of a Net Proceeds Purchase pursuant to this
Section 4.18 shall be mailed, by first class mail, by the Company
not more than 91 days after the relevant Asset Sale Closing Date
to all Holders at their last registered addresses, with a copy to
the Trustee. The notice shall specify a Redemption Date chosen
by the Company in compliance with the first sentence of Section
3.03 and shall contain all instructions and materials necessary
to enable such Holders to tender Senior Subordinated Notes
pursuant to the Net Proceeds Purchase and shall state the terms
required to be stated in a notice of redemption under Section
3.03.
On or before the Redemption Date, the Company shall
have deposited with the Paying Agent (to the extent not already
held by the Paying Agent) U.S. Legal Tender equal to the Excess
Proceeds of the Asset Sale. Following the Redemption Date, the
Paying Agent shall promptly mail to the Holders of Senior
Subordinated Notes payment in an amount equal to the purchase
price. The Company will publicly announce the results of the Net
Proceeds Purchase on or as soon as practicable after the
Redemption Date. For purposes of this Section 4.18, the Trustee
shall act as the Paying Agent.
Notwithstanding the foregoing, the Company need not
initiate a purchase offer under this Section 4.18 if the amount
on deposit with the Trustee is less than $1,000,000, but shall
instead hold such lesser amount in trust in an interest bearing
account until the earlier of the next Redemption Date under this
Section 4.18 or the date upon which the Senior Subordinated Notes
become due and payable. The Company, however, may not credit any
such amounts held by the Trustee against any other provision of
this Indenture.
(d) If at any time any non-cash consideration received
by the Company or any Subsidiary in connection with any Asset
Sale is converted into or sold or otherwise disposed of for cash,
or if cash dividends or interest or other cash payments are
received with respect thereto, then such cash shall constitute
Net Cash Proceeds for purposes of this covenant and shall be
applied in accordance with Section 4.18(b) as if received in an
Asset Sale occurring on the date any such cash is received.
SECTION 4.19 Guarantees by Subsidiaries.
The Company will cause each of its Subsidiaries,
whether existing on the Issue Date or thereafter formed or
acquired, other than Subsidiaries formed after the Issue Date
pursuant to and in compliance with the requirements of Section
4.16(ii), to become a Guarantor by complying with the procedures
set forth in Section 12.11 hereof and by executing and delivering
a supplemental indenture evidencing such Subsidiary's Guarantee.
Neither the Company nor any Guarantor shall be required to make a
notation on the Senior Subordinated Notes to reflect any such
subsequent Guarantee.
SECTION 4.20 Subsidiaries.
Except as permitted by Section 4.16(ii), the Company
shall not, and shall cause its Subsidiaries not to, own, acquire
or permit to exist any Subsidiary which is not a Wholly-owned
Subsidiary and a Guarantor.
SECTION 4.21 Prohibition on Company and Guarantors Becoming an
Investment Company.
None of the Company or the Guarantors shall become an
"Investment Company" as defined in the Investment Company Act of
1940, as amended.
SECTION 4.22 Maintenance Capital Expenditures.
The Company shall not, and shall cause its Subsidiaries
not to, make Maintenance Capital Expenditures in any Yearly
Period in an aggregate amount in excess of the corresponding
limit for such Yearly Period as set forth in the second column
below (or, in the case of a Yearly Period consisting of less than
365 days, a proportionally lower amount based upon the number of
days in such Yearly Period); provided, however, that at the end
of each Yearly Period the amounts set forth in the second column
below for the following Yearly Period shall be deemed to be
(i) reduced in the event of one or more Asset Sales by the
Company or its Subsidiaries during the Yearly Period most
recently ended by multiplying such number by a fraction, the
numerator of which is equal to the Consolidated Assets of the
Company on the last day of the Yearly Period most recently ended,
without considering the proceeds of the Asset Sales, and the
denominator of which is equal to the Consolidated Assets of the
Company on the last day of the Yearly Period immediately
preceding the Yearly Period most recently ended, and
(ii) increased in the event of one or more acquisitions by the
Company or its Subsidiaries of tractors, trailers, vans or other
equipment used by the Company or any of its Subsidiaries in the
operation of the Trism Business by multiplying such number by a
fraction, the numerator of which is equal to the Consolidated
Assets of the Company on the last day of such calendar year and
the denominator of which is equal to the Consolidated Assets of
the Company on the last day of the immediately preceding calendar
year:
Yearly Period Maximum Maintenance
Ending Capital Expenditures
December 31, 2000 $35,000,000
December 31, 2001 $35,000,000
December 31, 2002 $35,000,000
December 31, 2003 $35,000,000
December 31, 2004 $35,000,000
Maturity Date $ 3,355,000
SECTION 4.23 Line of Business.
The Company will not, and will not permit any of its
Subsidiaries to, engage as a material part of its business in any
business other than the TRISM Business.
SECTION 4.24 Limitation on Issuance of Other Subordinated
Indebtedness Senior to the Senior Subordinated Notes.
(a) The Company will not create, incur, assume,
guarantee or in any other manner become liable with respect to
any Indebtedness, other than the Senior Subordinated Notes, that
is subordinate in right of payment to any Senior Indebtedness,
unless such Indebtedness is permitted by Section 4.13 and
expressly by its terms is also subordinate or ranks pari passu in
right of payment to the Senior Subordinated Notes.
(b) The Company will not permit any Subsidiary to
create, incur, assume, guarantee or in any other manner become
liable with respect to any Indebtedness, other than the
Guarantees, that is subordinate in right of payment to any
Guarantor Senior Indebtedness, unless: (a) such Indebtedness is
permitted by Section 4.13 and expressly by its terms is also
subordinate or ranks pari passu in right of payment to the
Guarantees; or (b) such Indebtedness is incurred by a Subsidiary
that is a Guarantor in connection with the lease of tractors,
trailers, vans or other equipment used in the ordinary course of
the Trism Business.
SECTION 4.25 Limitation of Guarantees by Subsidiaries.
The Company will not permit any Subsidiary, directly or
indirectly, to assume, guarantee or in any other manner become
liable with respect to any Indebtedness of the Company or any
other Subsidiary unless (i) such assumption, guarantee or other
liability is permitted by Section 4.13, (ii) each such Subsidiary
which is not then a Guarantor simultaneously executes and
delivers to the Trustee a guarantee in favor of the Trustee,
substantially in the form of the Guarantee in Article Twelve
(and, if requested by the Trustee, a supplemental indenture in
form and substance reasonably satisfactory to the Trustee),
providing for the guarantee of payment of the Senior Subordinated
Notes by such Subsidiary and (iii) (a) if any such assumption,
guarantee or other liability of such Subsidiary is provided in
respect of Senior Indebtedness, the guarantee or other instrument
provided by such Subsidiary in respect of such Senior
Indebtedness may be superior to the Guarantee, pursuant to
subordination provisions no less favorable than those contained
in this Indenture and (b) if such assumption, guarantee or other
liability of such Subsidiary is provided in respect of
Subordinated Indebtedness, the guarantee or other instrument
provided by such Subsidiary in respect of such Subordinated
Indebtedness shall be subordinated to the Guarantee, pursuant to
subordination provisions not less favorable than those contained
in this Indenture.
Notwithstanding the foregoing, any such Guarantee by a
Subsidiary of the Senior Subordinated Notes shall provide by its
terms that it shall be automatically and unconditionally released
and discharged, without any further action required on the part
of the Trustee or any Holder, upon any sale or other disposition
(by merger or otherwise) to any Person which is not a Subsidiary
or Affiliate of the Company, of all of the Company's Capital
Stock in, or all or substantially all of the assets of, such
Subsidiary; provided, that (a) such sale or disposition of such
Capital Stock or assets is otherwise in compliance with the terms
of this Indenture and (b) such assumption, guarantee or other
liability of such Subsidiary has been released by the holders of
the other Indebtedness so guaranteed.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 Limitation on Merger, Etc.
(a) Each of the Company, the Guarantors and their
Subsidiaries shall not in a single transaction or through a
series of related transactions, (i) consolidate with or merge
with or into any other Person, or transfer (by lease, license,
assignment, sale or otherwise) all or substantially all of its
Properties and assets as an entirety or substantially as an
entirety to another Person or group of affiliated Persons or (ii)
adopt a Plan of Liquidation.
(b) Notwithstanding Section 5.01(a), the Company may
consolidate with or merge with or into any other Person provided
that:
(i) the Company shall be the continuing Person,
or the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or to
which all or substantially all of the properties and assets
of the Company as an entirety or substantially as an
entirety are transferred (or, in the case of a Plan of
Liquidation, any Person to which assets are transferred)
(the Company or such other Person being hereinafter referred
to as the "Surviving Person") shall be a corporation
organized and validly existing under the laws of the United
States, any State thereof or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Company under the
Senior Subordinated Notes and this Indenture;
(ii) (A) immediately after and giving effect to
such transaction and the assumption of the obligations
contemplated by clause (i) above and the incurrence or
anticipated incurrence of any Indebtedness to be incurred in
connection therewith, the Surviving Person shall have a Net
Worth equal to or greater than the Net Worth of the Company
immediately preceding the transaction, (B) immediately
before and immediately after and giving effect to such
transaction and the assumption of the obligations
contemplated by clause (i) above and the incurrence or
anticipated incurrence of any Indebtedness to be incurred in
connection therewith, no Default or Event of Default shall
have occurred and be continuing, (C) immediately after and
giving effect to such transaction and the assumption of the
obligations contemplated by clause (i) above and the
incurrence or anticipated incurrence of any Indebtedness to
be incurred in connection therewith, all Guarantees of the
Guarantors remain in full force and effect and
(D) immediately after and giving effect to such transaction
and the assumption of the obligations contemplated by
clause (i) above and the incurrence or anticipated
incurrence of any Indebtedness to be incurred in connection
therewith, the ratio of the Surviving Company's Consolidated
Liabilities to the Surviving Company's Consolidated Assets
shall be equal to or less than the ratio of the Company's
Consolidated Liabilities to the Company's Consolidated
Assets immediately prior to such transaction.
(iii) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, transfer or
adoption and such supplemental indenture comply with this
Article Five, that the Surviving Person agrees to be bound
hereby, that such supplemental indenture and this Indenture,
as modified by such supplemental indenture, are enforceable
against the Surviving Person and the Guarantors in
accordance with their respective terms, and that all
conditions precedent herein provided relating to such
transaction have been satisfied;
(iv) the Company shall have delivered to the
Trustee a certificate from its independent certified public
accountants stating that the Company has made the
calculations required by clauses (ii)(A) and (D) above in
accordance with the terms of this Indenture; and
(v) none of the Company, any Guarantor or any of
their respective Subsidiaries or the Surviving Person would
thereupon become obligated with respect to any Indebtedness
(including acquired indebtedness) nor would any of its
assets of Properties become subject to a Lien, unless such
Person could incur such Indebtedness (including acquired
indebtedness) or create such Lien under this Indenture
(after giving effect to such Person being bound by all the
terms of this Indenture).
(c) Notwithstanding Section 5.01(a), a Wholly-owned
Subsidiary of the Company may merge into the Company or another
Wholly-owned Subsidiary of the Company that is a Guarantor and
the Company need not preserve the existence of one or more
Guarantors and their Subsidiaries as permitted under Section 4.05
of this Indenture.
(d) For purposes of the foregoing, the transfer (by
lease, assignment, sale or otherwise, in a single transaction or
series of transactions) of all or substantially all of the
Properties and assets of one or more Subsidiaries, the Capital
Stock of which constitutes all or substantially all of the
properties and assets of a Person shall be deemed to be the
transfer of all or substantially all of the Properties and assets
of a Person.
SECTION 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of
assets (including pursuant to a Plan of Liquidation) in
accordance with Section 5.01, the successor Person formed by such
consolidation or into which the Company or any Guarantor or
Subsidiary is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right
and power of, the Company or Guarantor, as the case may be, under
this Indenture (and shall execute a supplemental indenture to
that effect in accordance with Section 12.11) with the same
effect as if such successor Person had been named as the Company
or Guarantor, as the case may be, herein; provided, however that
the Company and Guarantors shall not be released from the
obligations and covenants under this Indenture and the Senior
Subordinated Notes.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default.
An "Event of Default" occurs under this Indenture if:
(1) the Company defaults in the payment of
interest on any Senior Subordinated Notes when the same
becomes due and payable, and the Default continues for
a period of 30 days;
(2) the Company defaults in the payment of the
principal of (or premium, if any, on) any Senior
Subordinated Note when the same becomes due and
payable, at maturity, upon acceleration, redemption or
otherwise (including the failure to purchase (or offer
to purchase) Senior Subordinated Notes tendered
pursuant to the requirements of Section 4.18);
(3) the Company or any Guarantor fails to comply
with any other agreement or covenant contained in the
Senior Subordinated Notes, this Indenture or the
Registration Rights Agreement, and the Default
continues for the period and after the notice specified
below;
(4) there shall be a default under any bond,
debenture or other evidence of Indebtedness of the
Company or any Guarantor having an aggregate amount in
excess of $3,000,000, or under any mortgage, security
agreement, indenture or other instrument under which
there may be issued or by which there may be secured or
evidenced any such Indebtedness, whether such
Indebtedness now exists or shall hereafter be created,
if such default either (A) results from the failure to
pay principal or interest on any Indebtedness or (B)
relates to an obligation other than the obligation to
pay principal or interest on any Indebtedness and
results in the holder or holders of such Indebtedness
causing such Indebtedness to become due prior to its
stated maturity;
(5) any Guarantee required to be in full force
and effect by the terms of this Indenture ceases to be
in full force and effect or is declared null and void
or otherwise not enforceable against any Guarantor in
accordance with its terms, or any of the Guarantors
repudiates its obligations under its Guarantee or
denies that it has any further liability under the
Guarantee or gives notice to such effect (other than by
reason of the termination of this Indenture or the
release of any such Guarantee in accordance with this
Indenture); or any Guarantor repudiates its obligations
under its Guarantee of the Senior Subordinated Notes or
if a final judicial determination is made that such
Guarantee is not enforceable against any Guarantor in
accordance with its terms;
(6) the Company or any Guarantor pursuant to or
within the meaning of any Bankruptcy Law:
(a) admits in writing its inability to pay
its debts generally as they become due;
(b) commences a voluntary case or
proceeding;
(c) consents to the entry of a judgment,
decree or order for relief against it in an
involuntary case or proceeding;
(d) consents to the appointment of a
Custodian of it or for all or substantially all of
its property;
(e) consents to or acquiesces in the
institution of a bankruptcy or an insolvency
proceeding against it;
(f) makes a general assignment for the
benefit of its creditors; or
(g) takes any corporate action to authorize
or effect any of the foregoing;
(7) a court of competent jurisdiction enters a
judgment, decree or order under any Bankruptcy Law that
is for relief against the Company or any Guarantor, in
an involuntary case or proceeding which shall (A)
approve a petition seeking reorganization, arrangement,
adjustment or composition in respect of the Company or
any Guarantor, (B) appoint a Custodian of the Company
or any Guarantor, or for substantially all of its
Property, or (C) order the winding-up or liquidation of
its affairs, and in each case the judgment, order or
decree remains unstayed and in effect for 60 days;
(8) any warrant of attachment is issued against
any property of the Company or any Guarantor having a
value of at least $3 million, which warrant is not
released, stayed or bonded against within 60 days after
service of process with respect thereto;
(9) any final judgments or orders not covered by
insurance (which insurance has been issued by a
financially sound insurer that is not an Affiliate of
the Company and that has not disclaimed or threatened
to disclaim coverage) for the payment of money which
individually or in the aggregate at any one time
exceeds $3 million shall be rendered against the
Company or any Guarantor or any of their respective
Subsidiaries by a court of competent jurisdiction and
shall remain unstayed, undischarged or unbonded for 60
days after judgment becomes final and nonappealable; or
(10) there shall be any failure to procure and
maintain property and liability insurance in accordance
with the provisions of Section 4.07 continuing, in the
case of failure to maintain such insurance, until the
earlier of (y) 30 days after notice to the Company or
any of its Subsidiaries or the Trustee of the lapse or
cancellation of such insurance, and (z) the date such
lapse or cancellation is effective as to the Trustee.
A Default under clause (3) above (other than any
Default under Sections 4.03, 4.04, 4.12, 4.13, 4.14, 4.15, 4.16,
4.18, 4.19, 4.20, 4.21, 4.22, 4.23, 4.24, 4.25 and 5.01, which
Defaults shall be Events of Default with the notice specified in
this paragraph but without the passage of time specified in this
paragraph) or under clause (10) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at
least 25% in principal amount of the outstanding Senior
Subordinated Notes notify the Company and the Trustee, of the
Default, and the Company does not cure the Default within 30 days
after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is
a "Notice of Default." Such notice shall be given by the Trustee
if so requested by the Holders of at least 25% in principal
amount of the Senior Subordinated Notes then outstanding. When a
Default is cured, it ceases.
SECTION 6.02 Acceleration.
If an Event of Default (other than an Event of Default
specified in Section 6.01(6) or (7) with respect to the Company)
occurs and is continuing, the Trustee may, by notice to the
Company, or the Holders of at least 25% in principal amount of
the Senior Subordinated Notes then outstanding may, by written
notice to the Company and the Trustee, and the Trustee shall,
upon the request of such Holders, declare the aggregate principal
amount of the Senior Subordinated Notes outstanding, together
with accrued interest thereon to the date of payment, to be due
and payable and, upon any such declaration, the same shall become
and be due and payable; provided that so long as any Indebtedness
is outstanding under the Senior Secured Credit Facility, such
declaration shall not be effective until the earlier of (i) five
days after delivery of such declaration of acceleration of the
Senior Subordinated Notes to the Senior Representative by the
Trustee and (ii) the declaration of acceleration of the
Indebtedness under the Senior Secured Credit Facility. If an
Event of Default specified in Section 6.01(6) or (7) occurs with
respect to the Company, all unpaid principal and accrued interest
on the Senior Subordinated Notes then outstanding shall ipso
facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any
Holder. Upon payment of such principal amount, interest, and
premium, if any, all of the Company's obligations under the
Senior Subordinated Notes and this Indenture, other than
obligations under Section 7.07, shall terminate. The Holders of
a majority in principal amount of the Senior Subordinated Notes
then outstanding by notice to the Trustee may rescind an
acceleration and its consequences if (i) all existing Events of
Default, other than the non-payment of the principal of the
Senior Subordinated Notes which has become due solely by such
declaration of acceleration, have been cured or waived, (ii) 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, (iii) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction, and (iv)
the Company has paid or caused to be paid to the Trustee all sums
paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, and all other amounts due to the
Trustee under Section 7.07.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders under this Indenture or the
Guarantee by such appropriate private or judicial proceedings as
the Trustee shall deem most effectual to protect and enforce such
rights, including seeking recourse against any Guarantor pursuant
to the terms of the Guarantee, whether for the specific
enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein or therein, or to
enforce any other proper remedy, or to enforce any other proper
remedy, subject however to Section 6.05. No recovery of any such
judgment upon any property of the Company or any Guarantor shall
affect or impair any rights, powers or remedies of the Trustee or
the Holders.
The Trustee may maintain a proceeding even if it does
not possess any of the Senior Subordinated Notes or does not
produce any of them in the proceeding. A delay or omission by
the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy.
All available remedies are cumulative to the extent permitted by
law.
SECTION 6.04 Waiver of Past Defaults.
Subject to Sections 6.02, 6.07 and 9.02, the Holders of
a majority in principal amount of the outstanding Senior
Subordinated Notes by notice to the Trustee may waive an existing
Default or Event of Default and its consequences, except a
Default in the payment of principal of or interest on any Senior
Subordinated Note as specified in clauses (1) and (2) of Section
6.01. When a Default or Event of Default is waived, it is cured
and ceases.
SECTION 6.05 Control by Majority.
The Holders of a majority in principal amount of the
outstanding Senior Subordinated Notes may direct the time, method
and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on it.
Subject to Section 7.01, however, the Trustee may refuse to
follow any direction that conflicts with any law or this
Indenture, that the Trustee determines may be unduly prejudicial
to the rights of another Securityholder, or that may involve the
Trustee in personal liability; provided that the Trustee may take
any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 6.06 Limitation on Suits.
Subject to Section 6.07, a Securityholder may not
pursue any remedy with respect to this Indenture or the Senior
Subordinated Notes unless:
(1) the Holder gives to the Trustee notice of a
continuing Event of Default;
(2) the Holder or Holders of at least 25% in
principal amount of the outstanding Senior Subordinated
Notes make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against any loss,
liability or expense to be incurred in compliance with
such request;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the
offer of indemnity; and
(5) during such 60-day period the Holder or
Holders of a majority in principal amount of the
outstanding Senior Subordinated Notes do not give the
Trustee a direction which, in the opinion of the
Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to
prejudice the rights of another Securityholder or to obtain a
preference or priority over such other Securityholder.
SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture,
the right of any Holder to receive payment of principal of,
premium, if any, and interest on a Senior Subordinated Note, on
or after the respective due dates expressed in such Senior
Subordinated Note, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default in payment of principal or
interest specified in clause (1) or (2) of Section 6.01 occurs
and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company or
any other obligor on the Senior Subordinated Notes for the whole
amount of principal and accrued interest remaining unpaid,
together with interest on overdue principal and, to the extent
that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum
borne by the Senior Subordinated Notes and such further amount as
shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section
7.07.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07) and the Securityholders allowed
in any judicial proceedings relating to the Company or any other
obligor upon the Senior Subordinated Notes, any of their
respective creditors or any of their respective property and
shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claims and
to distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Securityholder to make
such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agent and counsel, and any other amounts due
the Trustee under Section 7.07. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting
the Senior Subordinated Notes or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the
claim of any Securityholder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this
Article Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under
Section 7.07;
Second: if the Holders are forced to proceed
against the Company or any Guarantor directly without
the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on
the Senior Subordinated Notes for principal, premium,
if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and
payable on the Senior Subordinated Notes for principal,
premium, if any, and interest, respectively; and
Fourth: to the Company or relevant Guarantor.
The Trustee, upon prior notice to the Company, may fix
a record date and payment date for any payment to Securityholders
pursuant to this Section 6.10.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of
more than 10% in principal amount of the outstanding Senior
Subordinated Notes.
SECTION 6.12 Event of Default from Willful Action.
In the case of any Event of Default occurring by reason
of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company or any Guarantor with the intention of
avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Senior
Subordinated Notes pursuant to Section 3.07 hereof, an equivalent
premium shall also become and be immediately due and payable to
the extent permitted by law.
SECTION 6.13 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or
wrongfully taken Senior Subordinated Notes in Section 2.07, no
right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.14 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy arising upon any Default or Event of
Default shall impair any such right or remedy or constitute a
waiver of any such Default or Event of Default or an acquiescence
therein. Every right and remedy given by this Indenture, or by
law to the Trustee or to the Holders may be exercised from time
to time, and as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by
this Indenture and covenants and agrees to perform the same, as
herein expressed, subject to the terms and conditions hereof.
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of
care and skill in its exercise thereof as a prudent Person would
exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of
Default:
(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse
to the Trustee; and
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall
examine the 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:
(i) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01; and
(ii) The Trustee shall not be liable for any error
of judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. The Trustee shall be entitled
to the protection afforded by TIA Section 315(d)(3).
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and
(d) of this Section 7.01.
(f) Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by
law.
SECTION 7.02 Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter
stated in the document;
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or
an Opinion of Counsel, which shall conform to Sections 13.04 and
13.05. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or
opinion;
(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 that 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 shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction,
consent, order, bond, debenture, or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders pursuant to the
provisions of this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein
or thereby;
(g) Any permissive right or power available to the Trustee under
this Indenture shall not be construed to be a mandatory duty or
obligation;
(h) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an
Officers' Certificate; and
(i) The Trustee shall not be charged with knowledge of any
Default or Event of Default with respect to the Senior
Subordinated Notes unless either (1) a Trust Officer assigned to
the Corporate Trust Department of the Trustee (or any successor
division or department of the Trustee) shall have actual
knowledge of such Default or Event of Default or (2) written
notice of such Default or Event of Default shall have been given
to the Trustee by the Company or by any Holder of the Senior
Subordinated Notes.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Senior Subordinated Notes and may
otherwise deal with the Company or any Guarantor, or their
respective Affiliates, with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity
or adequacy of this Indenture, the Senior Subordinated Notes or
the Guarantee, it shall not be accountable for the Company's use
of the proceeds from the Senior Subordinated Notes, and it shall
not be responsible for any statement in the Senior Subordinated
Notes other than the Trustee's certificate of authentication.
SECTION 7.05 Notice of Default.
If a Default or an Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall
mail to each Holder notice of the uncured Default or Event of
Default within 90 days after such Default or Event of Default
occurs. Except in the case of a Default or an Event of Default
in payment of principal of, or interest on, any Senior
Subordinated Note, including the failure to make a Net Proceeds
Purchase, the Trustee may withhold the notice if and so long as
its Board of Directors, the executive committee of its Board of
Directors or a committee of its directors and/or Trust Officers
in good faith determines that withholding the notice is in the
interest of the Holders.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each May 15, beginning with May
15, 2000, the Trustee shall, to the extent that any of the events
described in TIA Section 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Securityholder a
brief report dated as of such May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Sections
313(b)(2) and 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the
Commission and each stock exchange, if any, on which the Senior
Subordinated Notes are listed in accordance with TIA
Section 313(d). The Company shall notify the Trustee if the
Senior Subordinated Notes become listed on any stock exchange and
of any delisting thereof.
SECTION 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and
services hereunder as agreed by the Trustee and the Company. The
Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it.
Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold
it harmless against, any loss or liability incurred by it except
for such actions to the extent caused by any negligence or bad
faith on its part, arising out of or in connection with the
administration of this trust and its rights or duties hereunder.
The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made
without its written consent. The Company need not reimburse any
expense or indemnify against any loss or liability to the extent
incurred by the Trustee through its negligence, bad faith or
willful misconduct.
To secure the Company's payment obligations in this
Section 7.07, the Trustee shall have a lien prior to the Senior
Subordinated Notes on all assets held or collected by the
Trustee, in its capacity as Trustee, except assets held in trust
to pay principal of or interest on particular Senior Subordinated
Notes.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(6), (7) or
(8) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any
Bankruptcy Law.
The obligations of the Company under this Section 7.07
shall survive the resignation or removal of the Trustee and the
satisfaction and discharge of this Indenture.
The Trustee shall comply with the provisions TIA
Section 313(b)(2) to the extent applicable.
SECTION 7.08 Replacement of Trustee.
The Trustee may resign by so notifying the Company.
The Holders of a majority in principal amount of the outstanding
Senior Subordinated Notes may remove the Trustee by so notifying
the Company and the Trustee and may appoint a successor trustee
with the Company's consent. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section
7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall
notify each Holder of such event and shall promptly appoint a
successor Trustee. Within one year after the successor Trustee
takes office, the Holders of a majority in principal amount of
the Senior Subordinated Notes may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.
Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee, subject
to the lien provided in Section 7.07, the resignation or removal
of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Securityholder.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the outstanding Senior Subordinated Notes may
petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee.
Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate
trust business to, another corporation, the resulting, surviving
or transferee corporation without any further act shall, if such
resulting, surviving or transferee corporation is otherwise
eligible hereunder, be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a). The Trustee
shall have a combined capital and surplus of at least $100
million (or be a member or subsidiary of a bank holding system
with aggregate combined capital and surplus of at least $100
million) as set forth in its most recent published annual report
of condition. The Trustee shall comply with TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against the
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 EIGHT
SUBORDINATION
SECTION 8.01 Senior Subordinated Notes Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of a
Senior Subordinated Note, by his acceptance thereof, likewise
covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article Eight, the Indebtedness
represented by the Senior Subordinated Notes and the payment of
the principal of, premium, if any, and interest on each and all
of the Senior Subordinated Notes are hereby expressly made
subordinate and subject in right of payment as provided in this
Article Eight to the prior payment in full in cash or Cash
Equivalents of all Senior Indebtedness.
This Article Eight shall constitute a continuing offer
to all Persons who, in reliance upon such provisions, become
holders of, or continue to hold Senior Indebtedness; and such
provisions are made for the benefit of the holders of Senior
Indebtedness; and such holders are made obligees hereunder and
they or each of them may enforce such provisions.
The provisions of this Article Eight shall not be
applicable from and after the date of Legal Defeasance or
Covenant Defeasance pursuant to Sections 9.02 or 9.03,
respectively, of this Indenture.
SECTION 8.02 Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case
or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding in connection therewith,
relative to the Company or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding up
of the Company, whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy, or (c) any assignment for
the benefit of creditors or any other marshalling of assets or
liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be
entitled to receive payment in full in cash or Cash Equivalents
of all amounts due on or in respect of all Senior Indebtedness,
or provision shall be made for such payment, before the Holders
of the Senior Subordinated Notes are entitled to receive any
payment or distribution of any kind or character (other than in
Permitted Junior Securities) on account of principal of, premium,
if any, or interest on the Senior Subordinated Notes; and
(2) any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities (excluding Permitted Junior Securities) by set-off or
otherwise, to which the Holders or the Trustee would be entitled
but for the provisions of this Article Eight shall be paid by the
liquidating trustee or agent or other Person making such payment
or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of
Senior Indebtedness or their representative or representatives or
to the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have
been issued, to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid, after giving effect to
any concurrent payment or distribution to the holders of such
Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section 8.02, the Trustee or the Holder of any
Senior Subordinated Notes shall have received any payment or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, in respect of principal,
premium, if any, and interest on the Senior Subordinated Notes
before all Senior Indebtedness is paid in full or payment thereof
provided for, then and in such event such payment or distribution
(excluding Permitted Junior Securities) shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of
the Company with or into, another Person or the liquidation or
dissolution of the Company following the conveyance, transfer or
lease of its properties and assets substantially as an entirety
to another Person upon the terms and conditions set forth in
Article Five shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of
creditors or marshaling of assets and liabilities of the Company
for the purposes of this Section 8.02 if the Person formed by
such consolidation or the surviving entity of such merger or the
Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger,
conveyance, transfer or lease, comply with the conditions set
forth in Article Five.
SECTION 8.03 Suspension of Payment When Senior Indebtedness in
Default.
(a) Unless Section 8.02 shall be applicable, upon (1)
the occurrence of a Payment Default and (2) receipt by the
Trustee from the Company or the holders of Senior Indebtedness of
written notice of such occurrence, then no payment or
distribution of any assets of the Company of any kind or
character (excluding Permitted Junior Securities) shall be made
by the Company and no holder of the Subordinated Notes shall
accept or receive any direct or indirect payment by setoff or
otherwise for or on account of principal of, or premium, if any,
or interest on the Senior Subordinated Notes or on account of the
purchase or redemption or other acquisition of the Senior
Subordinated Notes unless and until such Payment Default shall
have been cured or waived or shall have ceased to exist (as
evidenced by a written acknowledgment of the Senior
Representative) or such Senior Indebtedness shall have been
discharged or paid in full or payment thereof provided for, after
which the Company shall resume making any and all required
payments in respect of the Senior Subordinated Notes, including
any missed payments.
(b) Unless Section 8.02 shall be applicable, upon (1)
the occurrence of a Covenant Default and (2) receipt by the
Trustee from the Senior Representative of written notice of such
occurrence, no payment or distribution of any assets of the
Company of any kind or character (excluding Permitted Junior
Securities) may be made by the Company on account of any
principal of, premium, if any, or interest on the Senior
Subordinated Notes or on account of the purchase or redemption or
other acquisition of the Senior Subordinated Notes for a period
(the "Payment Blockage Period") commencing on the date of receipt
by the Trustee of such notice and ending on (subject to any
blockage of payments that may then be in effect under Section
8.03(a)) the earliest of (x) 179 days in the case of Indebtedness
under the Senior Secured Credit Facility, and 119 days in the
case of other Designated Senior Indebtedness, after the receipt
of such written notice by the Trustee (provided the Designated
Senior Indebtedness with respect to which such Covenant Default
shall have occurred shall theretofore have not been accelerated),
(y) the date on which such Covenant Default shall have been cured
or waived or shall have ceased to exist (as evidenced by a
written acknowledgment of the Senior Representative initiating
the Payment Blockage Period) or such Designated Senior
Indebtedness shall have been discharged or paid in full or
payment thereof provided for or (z) the date on which such
Payment Blockage Period shall have been terminated by written
notice to the Company or the Trustee from the Senior
Representative initiating such Payment Blockage Period, or the
holders of at least a majority in principal amount of such issue
of Designated Senior Indebtedness, after which, in the case of
clause (x), (y) or (z), the Company shall resume making any and
all required payments in respect of the Senior Subordinated
Notes, including any missed payments. Notwithstanding any other
provision of this Indenture, only one Payment Blockage Period may
be commenced with respect to the Senior Subordinated Notes within
any 365-day period and no Covenant Default with respect to
Designated Senior Indebtedness which existed or was continuing on
the date of the commencement of any Payment Blockage Period will
be, or can be, made the basis for the commencement of a second
Payment Blockage Period, whether or not within a period of 365
consecutive days, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive
days. In no event shall a Payment Blockage Period extend beyond
179 days from the date of the receipt of the notice referred to
in clause (2) hereof.
(c) In the event that, notwithstanding the foregoing,
the Company shall make any payment to the Trustee or the Holder
of any Senior Subordinated Notes prohibited by the foregoing
provisions of this Section 8.03, then and in such event such
payment shall be held in trust for the benefit of the Lenders or
other holders of Senior Indebtedness at the time outstanding and
shall promptly be paid over and delivered forthwith to the Senior
Representative or other representative of the holders of the
Designated Senior Indebtedness or the holders of Senior
Indebtedness, as applicable, or as a court of competent
jurisdiction shall direct.
SECTION 8.04 Payment Permitted if No Default.
Nothing contained in this Article Eight, elsewhere in
this Indenture or in any of the Senior Subordinated Notes shall
prevent the Company, at any time except during the pendency of
any case, proceeding, dissolution, liquidation or other winding
up, assignment for the benefit of creditors or other marshaling
of assets and liabilities of the Company referred to in
Section 8.02 or under the conditions described in Section 8.03,
from making payments at any time of principal of, premium, if
any, or interest on the Senior Subordinated Notes.
SECTION 8.05 Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full in cash or Cash
Equivalents of all Senior Indebtedness, the Holders of the Senior
Subordinated Notes shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of, premium, if any, and
interest on the Senior Subordinated Notes shall be paid in full.
For purposes of such subrogation, no payments or distributions to
the holders of Senior Indebtedness of any cash, property or
securities to which the Holders of the Senior Subordinated Notes
or the Trustee would be entitled except for the provisions of
this Article Eight, and no payments over pursuant to the
provisions of this Article Eight to the holders of Senior
Indebtedness by Holders of the Senior Subordinated Notes or the
Trustee, shall, as among the Company, its creditors other than
holders of Senior Indebtedness, and the Holders of the Senior
Subordinated Notes, be deemed to be a payment or distribution by
the Company to or on account of the Senior Indebtedness.
SECTION 8.06 Provisions Solely to Define Relative Rights.
The provisions of this Article Eight are intended
solely for the purpose of defining the relative rights of the
Holders of the Senior Subordinated Notes on the one hand and the
holders of Senior Indebtedness on the other hand. Nothing
contained in this Article Eight or elsewhere in this Indenture or
in the Senior Subordinated Notes is intended to or shall (a)
impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Senior Subordinated
Notes, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Senior Subordinated
Notes the principal of, premium, if any, and interest on the
Senior Subordinated Notes as and when the same shall become due
and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Senior
Subordinated Notes and creditors of the Company other than the
holders of Senior Indebtedness; or (c) prevent the Trustee or the
Holder of any Senior Subordinated Notes from exercising all
remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this
Article Eight of the holders of Senior Indebtedness (1) in any
case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company referred to in
Section 8.02, to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder, or (2) under the
conditions specified in Section 8.03, to prevent any payment
prohibited by such Section or enforce their rights pursuant to
Section 8.03(c).
SECTION 8.07 Trustee to Effectuate Subordination Provisions.
Each Holder of a Senior Subordinated Note by his
acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Eight and
appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up,
liquidation or reorganization of the Company whether in
bankruptcy, insolvency, receivership proceedings, or otherwise,
the timely filing of a claim for the unpaid balance of the
Indebtedness of the Company owing to such Holder in the form
required in such proceedings and the causing of such claim to be
approved.
SECTION 8.08 No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any
Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
any such Holder may have or be otherwise charged with.
(b) Without limiting the generality of
Section 8.08(a), the holders of Senior Indebtedness may, at any
time and from time to time, without the consent of or notice to
the Trustee or the Holders of the Senior Subordinated Notes,
without incurring responsibility to the Holders of the Senior
Subordinated Notes and without impairing or releasing the
subordination provided in this Article Eight or the obligations
hereunder of the Holders of the Senior Subordinated Notes to the
holders of Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (2)
sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3)
release any Person liable in any manner for the collection or
payment of Senior Indebtedness; and (4) exercise or refrain from
exercising any rights against the Company and any other Person;
provided, however, that in no event shall any such actions limit
the right of the Holders of the Senior Subordinated Notes to take
any action to accelerate the maturity of the Senior Subordinated
Notes pursuant to Article Six of this Indenture or to pursue any
rights or remedies hereunder or under applicable laws if the
taking of such action does not otherwise violate the terms of
this Article Eight.
SECTION 8.09 Notice to Trustee.
(a) The Company shall give prompt written notice to
the Trustee of any fact known to the Company which would prohibit
the making of any payment to or by the Trustee in respect of the
Senior Subordinated Notes. Notwithstanding the provisions of this
Article Eight or any provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the
Trustee in respect of the Senior Subordinated Notes, unless and
until the Trustee shall have received written notice thereof from
the Company or a holder of Senior Indebtedness or from any
trustee, fiduciary or agent therefor; and, prior to the receipt
of any such written notice, the Trustee shall be entitled in all
respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received the notice provided
for in this Section 8.09(a) at least three Business Days prior to
the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the
payment of the principal of, premium, if any, or interest on any
Senior Subordinated Notes), then, anything herein contained to
the contrary notwithstanding but without limiting the rights and
remedies of the holders of Senior Indebtedness or any trustee,
fiduciary or agent thereof, the Trustee shall have full power and
authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by
it within three Business Days prior to such date; nor shall the
Trustee be charged with knowledge of the curing of any such
default or the elimination of the act or condition preventing any
such payment unless and until the Trustee shall have received an
Officers' Certificate to such effect. Notwithstanding anything
to the contrary set forth above, no written notice shall be
necessary for the provisions of Section 8.01 to be effective.
(b) The Trustee shall be entitled to rely on the
delivery to it of a written notice to the Trustee and the Company
by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor) to
establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor);
provided, however, that failure to give such notice to the
Company shall not affect in any way the ability of the Trustee to
rely on such notice. In the event that the Trustee determines in
good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this
Article Eight, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such
Person under this Article Eight, and if such evidence is not
furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment.
SECTION 8.10 Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the
Company referred to in this Article Eight, the Trustee and the
Holders of the Senior Subordinated Notes shall be entitled to
rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating Trustee, custodian, assignee
for the benefit of creditors, agent or other person making such
payment or distribution, delivered to the Trustee or to the
Holders of Senior Subordinated Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment
or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article Eight,
provided that the foregoing shall apply only if such court has
been fully apprised of the provisions of this Article Eight.
SECTION 8.11 Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Eight with
respect to any Senior Indebtedness which may at any time be held
by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in this
Article Eight shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 8.12 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting under this Indenture, the term "Trustee" as used in this
Article Eight shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as
if such Paying Agent were named in this Article Eight in addition
to or in place of the Trustee; provided, however, that
Section 8.11 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 8.13 No Suspension of Remedies.
Nothing contained in this Article Eight shall limit the
right of the Trustee or the Holders of Senior Subordinated Notes
to take any action to accelerate the maturity of the Senior
Subordinated Notes pursuant to Article Six of this Indenture or
to pursue any rights or remedies hereunder or under applicable
law, succeed to the rights, if any, under this Article Eight of
the Holders, from time to time, of Senior Indebtedness.
SECTION 8.14 Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article Eight, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read into
this Article Eight against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall mistakenly pay over or deliver to
Holders, the Company or any other Person moneys or assets to
which any holder of Senior Indebtedness shall be entitled by
virtue of this Article Eight or otherwise.
SECTION 8.15 Amendments.
The provisions of this Article Eight shall not be
amended or modified without the written consent of the holders of
all Senior Indebtedness, which written consent shall not be
unreasonably withheld, delayed or conditioned; provided, however,
that the holders of the Senior Indebtedness may withhold such
consent in their sole discretion if the proposed amendment or
modification would materially adversely affect their priority
with respect to the Indebtedness represented by the Senior
Subordinated Notes.
ARTICLE NINE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 9.01 Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of
Directors evidenced by a Board Resolution, at any time, elect to
have either Section 9.02 or 9.03 hereof be applied to all
outstanding Senior Subordinated Notes upon compliance with the
conditions set forth below in this Article Nine.
SECTION 9.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 9.01 hereof
of the option applicable to this Section 9.02, the Company shall,
subject to the satisfaction of the conditions set forth in
Section 9.04 hereof, be deemed to have been discharged from its
obligations with respect to all outstanding Senior Subordinated
Notes on the date the conditions set forth below 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 Senior Subordinated Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 9.05
and the other Sections of this Indenture referred to in
(i) through (iv) below, and to have satisfied all its other
obligations under such Senior Subordinated 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 such outstanding Senior Subordinated Notes
to receive, solely from the trust fund described in Section 9.05,
payments in respect of the principal of, premium, if any, and
interest on such Senior Subordinated Notes when such payments are
due, (ii) the Company's obligations with respect to the Senior
Subordinated Notes under Article Two and Section 4.02 hereof,
(iii) the rights, powers, trust, duties and immunities of the
Trustee, and the Company's obligations in connection therewith
and (iv) this Article Nine. Subject to compliance with this
Article Nine, the Company may exercise its option under this
Section 9.02 notwithstanding the prior exercise of its option
under Section 9.03 hereof.
SECTION 9.03 Covenant Defeasance.
Upon the Company's exercise under Section 9.01 hereof
of the option applicable to this Section 9.03, the Company shall,
subject to the satisfaction of the conditions set forth in
Section 9.04 hereof, be released from its obligations under the
covenants contained in Sections 4.03, 4.04, 4.12, 4.13, 4.14,
4.15, 4.16, 4.18, 4.19, 4.20, 4.21, 4.22, 4.23, 4.24 and 4.25 and
Sections 5.01(b)(ii)(A) and 5.01(b)(ii)(D) hereof, and the
provisions of Articles Five, Eight and Twelve shall not apply,
with respect to the outstanding Senior Subordinated Notes on and
after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Senior Subordinated
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 deemed
"outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the
outstanding Senior Subordinated Notes, the Company may omit to
comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such 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 of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and
such Senior Subordinated Notes shall be unaffected thereby.
SECTION 9.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the
application of either Section 9.02 or 9.03 hereof to the
outstanding Senior Subordinated Notes:
In order to exercise either Legal Defeasance or
Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee or
Paying Agent, in trust, for the benefit of the Holders, U.S.
Legal Tender, U.S. Government Obligations which, through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one
Business Day before the due date for any payment, money in an
amount, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of
independent public accountants, expressed in a written
certification thereof delivered to the Trustee, to pay the
principal of, premium, if any, and interest on the Senior
Subordinated Notes on the stated date for payment thereof or on
the applicable redemption date, as the case may be, of such
principal or installment of principal of, premium, if any, or
interest on the Senior Subordinated Notes;
(b) in the case of an election under Section 9.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (B)
since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the Senior Subordinated Notes will not
recognize income, gain or loss for U.S. federal income tax
purposes as a result of such Legal Defeasance and will be subject
to U.S. 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;
(c) in the case of an election under Section 9.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to the Trustee
confirming that the Holders of the Senior Subordinated Notes will
not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such Covenant Defeasance and will be
subject to U.S. 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;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or
Event of Default resulting from the incurrence of Indebtedness
all or a portion of the proceeds of which will be used to defease
the Senior Subordinated Notes pursuant to this Article Nine
concurrently with such incurrence) or insofar as Sections 6.01(6)
and 6.01(7) hereof are concerned, shall have occurred at any time
in the period ending on the 91st day after the date of such
deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a Default
under, this Indenture, or a default under the Senior Indebtedness
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;
(f) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the trust funds established
pursuant to this Article Nine will not be subject to any rights
of holders of Senior Indebtedness, including, without
limitations, those arising under Article Eight of this Indenture,
and to the effect that after the 91st day following the deposit,
such trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(g) 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 with the intent of defeating,
hindering, delaying or defrauding any other creditors of the
Company;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance have been complied with;
(i) such Legal Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest within the meaning of
the TIA (assuming for the purpose of this clause (i) that all
Senior Subordinated Notes are in default within the meaning of
the TIA); and
(j) such Legal Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company
Act of 1940, as amended, unless such trust shall be registered
under such act or exempt from registration thereunder.
SECTION 9.05 Deposited U.S. Legal Tender and U.S. Government
Obligations to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 9.06 hereof, all U.S. Legal Tender
and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 9.05, the "Trustee")
pursuant to Section 9.04 hereof in respect of the outstanding
Senior Subordinated Notes shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Senior
Subordinated Notes and this Indenture, to the payment, either
directly or through any Paying Agent, as the Trustee may
determine, to the Holders of such Senior Subordinated Notes of
all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such U.S. Legal Tender and
U.S. Government Obligations need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
U.S. Legal Tender or U.S. Government Obligations deposited
pursuant to Section 9.04 hereof or the principal and interest
received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the
outstanding Senior Subordinated Notes.
Anything in this Article Nine to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the Company's request any U.S. Legal
Tender or U.S. Government Obligations held by it as provided in
Section 9.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may
be the opinion delivered under Section 9.04(a) hereof), are in
excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 9.06 Repayment to the Company.
Any U.S. Legal Tender or U.S. Government Obligations
deposited with the Trustee or any Paying Agent, in trust for the
payment of the principal of, premium, if any, or interest on any
Senior Subordinated Note and remaining unclaimed for two years
after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Company on its request or
(if then held by the Company) shall be discharged from such
trust; and the Holder of such Senior Subordinated Note shall
thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the
expense of the Company cause to be published once, in The New
York Times and The Wall Street Journal (national edition), notice
that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
SECTION 9.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any
U.S. Legal Tender or U.S. Government Obligations in accordance
with Section 9.02 or 9.03 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the
Senior Subordinated Notes, and the Guarantors' obligations under
this Indenture and the Guarantee, shall be revived and reinstated
as though no deposit had occurred pursuant to Section 9.02 or
9.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such U.S. Legal Tender and U.S. Government
Obligations in accordance with Section 9.02 or 9.03 hereof, as
the case may be; provided, however, that, if the Company makes
any payment of principal of, premium, if any, or interest on any
Senior Subordinated Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Senior Subordinated Notes to receive such payment
from the U.S. Legal Tender and U.S. Government Obligations held
by the Trustee or Paying Agent after payment in full of the
Senior Subordinated Notes.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVER
SECTION 10.01 Without Consent of Holders of Senior Subordinated
Notes.
Notwithstanding Section 10.02 of this Indenture, the
Company, the Guarantors and the Trustee may amend or supplement
this Indenture or the Senior Subordinated Notes without the
consent of any Holder of a Senior Subordinated Note:
(a) to evidence the succession of another Person to the Company
and the Guarantors and the assumption by such successor of the
covenants and Obligations of the Company under this Indenture and
contained in the Senior Subordinated Notes and of the Guarantors
contained in this Indenture and the Guarantees;
(b) to add to the covenants of the Company, for the benefit of
Holders, or to surrender any right or power conferred upon the
Company or the Guarantors by this Indenture;
(c) to add any additional Events of Default;
(d) to provide for uncertificated Senior Subordinated Notes in
addition to or in place of certificated Senior Subordinated
Notes;
(e) to evidence and provide for the acceptance of appointment
under this Indenture by the successor Trustee;
(f) to secure the Senior Subordinated Notes and/or the
Guarantees;
(g) to cure any ambiguity, to correct or supplement any
provision in this Indenture which may be inconsistent with any
other provision herein or to add any other provisions with
respect to matters or questions arising under this Indenture,
provided that such actions will not materially and adversely
affect the interests of Holders;
(h) to add or release any Guarantor pursuant to the terms of
this Indenture; or
(i) to comply with the requirements of the Commission to effect
or maintain the qualification of the Indenture under the TIA.
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the
documents described in Section 10.07 hereof, the Trustee shall
join with the Company in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under
this Indenture or otherwise.
SECTION 10.02 With Consent of Holders of Senior Subordinated
Notes.
Except as provided below in this Section 10.02, the
Company, the Guarantors and the Trustee may amend or supplement
this Indenture and the Senior Subordinated Notes may be amended
or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Senior Subordinated
Notes then outstanding, and, subject to Sections 7.04 and 7.07
hereof, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of,
premium, if any, or, interest on the Senior Subordinated Notes,
except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this
Indenture or the Senior Subordinated Notes may be waived with the
consent of the Holders of a majority in aggregate principal
amount of the then outstanding Senior Subordinated Notes.
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the
Holders of Senior Subordinated Notes as aforesaid, and upon
receipt by the Trustee of the documents described in Section
10.07 hereof, the Trustee shall join with the Company and the
Guarantors in the execution of such amended or supplemental
Indenture unless such amended or supplemental Indenture affects
the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such
amended or supplemental Indenture.
It shall not be necessary for the consent of the
Holders of Senior Subordinated Notes under this Section 10.02 to
approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this
Section 10.02 becomes effective, the Company shall mail to the
Holders of Senior Subordinated Notes affected thereby a notice
briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the
validity of any such amended or supplemental Indenture or waiver.
Subject to Sections 7.04 and 7.07 hereof, the Holders of a
majority in aggregate principal amount of the Senior Subordinated
Notes then outstanding may waive compliance in a particular
instance by the Company with any provision of this Indenture or
the Senior Subordinated Notes. However, without the consent of
each Holder affected, an amendment or waiver may not (with
respect to any Senior Subordinated Notes held by a non-consenting
Holder):
(a) reduce the principal amount of Senior Subordinated Notes
whose Holders must consent to an amendment, supplement or waiver
of any provision of this Indenture or the Senior Subordinated
Notes;
(b) reduce the principal of or change the fixed maturity of any
Senior Subordinated Note or alter the provisions with respect to
the redemption of Senior Subordinated Notes pursuant to Article
Three of this Indenture or alter the provisions, including the
purchase price payable, with respect to repurchases of the Senior
Subordinated Notes pursuant to Section 4.18 hereof;
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Senior Subordinated
Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Senior
Subordinated Notes or that resulted from a failure to comply with
Section 4.18 hereof (except a rescission of acceleration of the
Senior Subordinated Notes by the Holders of at least a majority
in aggregate principal amount of the Senior Subordinated Notes
and a waiver of the payment default that resulted from such
acceleration);
(e) make the principal of, or the interest on, any Senior
Subordinated Note payable in any manner other than that stated in
this Indenture and the Senior Subordinated Notes on the Issue
Date;
(f) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders of Senior
Subordinated Notes to receive payments of principal of or
interest on the Senior Subordinated Notes;
(g) waive a redemption payment with respect to any Senior
Subordinated Note;
(h) alter the ranking of the Senior Subordinated Notes relative
to other Indebtedness of the Company or the Guarantors;
(i) make any change in the amendment and waiver provisions of
this Indenture or the Senior Subordinated Notes;
(j) impair the right of any Holder to receive payment of
principal of and interest on such Holder's Senior Subordinated
Notes on or after the due dates therefor or to institute suit for
the enforcement of any payment on or with respect to such
Holder's Senior Subordinated Notes;
(k) release any Guarantor from its Guarantee, except as provided
herein; or
(l) make any change in Sections 7.04 or 7.07 or modify any of
the provisions of this Section 10.02 (except to increase any
percentage set forth herein).
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the
Holders of Senior Subordinated Notes as aforesaid, and upon
receipt by the Trustee of the documents described in
Section 10.07 hereof, the Trustee shall join with the Company in
the execution of such amended or supplemental Indenture unless
such amended or supplemental Indenture affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the
Holders of Senior Subordinated Notes under this Section 10.02 to
approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance
thereof.
SECTION 10.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article Ten, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Senior
Subordinated Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby. After a supplemental
indenture becomes effective, the Company shall mail to Holders a
notice briefly describing such amendment. The failure to give
such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this
Section 10.03.
SECTION 10.04 Compliance with TIA.
Every amendment, waiver or supplement of this Indenture
or the Senior Subordinated Notes shall comply with the TIA.
SECTION 10.05 Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes
effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Senior Subordinated
Note or portion of a Senior Subordinated Note that evidences the
same debt as the consenting Holder's Senior Subordinated Note,
even if notation of the consent is not made on any Senior
Subordinated Note. However, any such Holder or subsequent Holder
may revoke the consent as to his Senior Subordinated Note or
portion of his Senior Subordinated Note by notice to the Trustee
or the Company received before the date on which the Trustee
receives an Officers' Certificate certifying that the Holders of
the requisite principal amount of Senior Subordinated Notes have
consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled
to consent to any amendment, supplement or waiver. If a record
date is fixed, then notwithstanding the last sentence of the
immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes
effective, it shall bind every Securityholder, unless it makes a
change described in any of clauses (a) through (l) of
Section 10.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Senior Subordinated Note who has
consented to it, and every subsequent Holder of a Senior
Subordinated Note or portion of a Senior Subordinated Note that
evidences the same debt as the consenting Holder's Senior
Subordinated Note; provided that any such waiver shall not impair
or affect the right of any Holder to receive payment of principal
of and interest on a Senior Subordinated Note, on or after the
respective due dates expressed in such Senior Subordinated Note,
or to bring suit for the enforcement of any such payment on or
after such respective dates without the consent of such Holder.
SECTION 10.06 Notation on or Exchange of Senior Subordinated
Notes.
If an amendment, supplement or waiver changes the terms
of a Senior Subordinated Note, the Trustee may require the Holder
of the Senior Subordinated Note to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Senior
Subordinated Note about the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Senior Subordinated
Note shall issue and the Trustee shall authenticate a new Senior
Subordinated Note that reflects the changed terms. Any such
notation or exchange shall be made at the sole cost and expense
of the Company.
SECTION 10.07 Trustee to Sign Supplemental Indentures.
The Trustee shall sign any supplemental Indenture
authorized pursuant to this Article Ten if the amendment or
supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. Neither the Company nor
a Guarantor may sign a supplemental Indenture until the Board of
Directors of such Person approves it. In executing any
supplemental indenture, the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and to receive and
(subject to Section 7.01) shall be fully protected in relying
upon, in addition to the documents required by Section 10.01 or
10.02, an Officers' Certificate and an Opinion of Counsel stating
that:
(a) such supplemental indenture is authorized or
permitted by this Indenture and that all conditions precedent to
the execution, delivery and performance of such supplemental
indenture have been satisfied;
(b) the Company and the Guarantors have all necessary
corporate power and authority to execute and deliver the
supplemental indenture and that the execution, delivery and
performance of such supplemental indenture has been duly
authorized by all necessary corporate action of the Company and
the Guarantors;
(c) the execution, delivery and performance of the
supplemental indenture do not conflict with, or result in the
breach of or constitute a default under any of the terms,
conditions or provisions of (i) this Indenture, (ii) the charter
documents and by-laws of the Company or any Guarantor, or (iii)
any material agreement or instrument to which the Company or any
Guarantor is subject and of which such counsel is aware;
(d) to the knowledge of legal counsel writing such
Opinion of Counsel, the execution, delivery and performance of
the supplemental indenture do not conflict with, or result in the
breach of any of the terms, conditions or provisions of (i) any
law or regulation applicable to the Company or any Guarantor, or
(ii) any material order, writ, injunction or decree of any court
or governmental instrumentality applicable to the Company or any
Guarantor;
(e) such supplemental indenture has been duly and
validly executed and delivered by the Company and the Guarantors,
and this Indenture together with such supplemental indenture
constitutes a legal, valid and binding obligations of the Company
and the Guarantors enforceable against the Company and the
Guarantors, as applicable, in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles
(whether considered in a proceeding at law or in equity); and
(f) this Indenture together with such amendment or
supplement complies with the TIA.
ARTICLE ELEVEN
MEETINGS OF SECURITYHOLDERS
SECTION 11.01 Purposes for Which Meetings May Be Called.
A meeting of Securityholders may be called at any time
and from time to time pursuant to the provisions of this Article
Eleven for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to waive or to consent to
the waiving of any Default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken
by Securityholders pursuant to any of the provisions of Article
Six;
(b) to remove the Trustee or appoint a successor Trustee
pursuant to the provisions of Article Seven;
(c) to consent to an amendment, supplement or waiver pursuant to
the provisions of Section 10.02; or
(d) to take any other action (i) authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount
of the Senior Subordinated Notes under any other provision of
this Indenture, or authorized or permitted by law or (ii) which
the Trustee deems necessary or appropriate in connection with the
administration of this Indenture.
SECTION 11.02 Manner of Calling Meetings.
The Trustee may at any time call a meeting of
Securityholders to take any action specified in Section 11.01, to
be held at such time and at such place in The City of New York,
New York or elsewhere as the Trustee shall determine. Notice of
every meeting of Securityholders, setting forth the time and
place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed by the Trustee, first-
class postage prepaid, to the Company and to the Holders at their
last addresses as they shall appear on the registration books of
the Registrar not less than 10 nor more than 60 days prior to the
date fixed for a meeting.
Any meeting of Securityholders shall be valid without
notice if the Holders of all Senior Subordinated Notes then
outstanding are present in person or by proxy, or if notice is
waived before or after the meeting by the Holders of all Senior
Subordinated Notes outstanding, and if the Company, the
Guarantors and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived
notice.
SECTION 11.03 Call of Meetings by the Company or Holders.
In case at any time the Company, pursuant to a Board
Resolution, or the Holders of not less than 10% in aggregate
principal amount of the Senior Subordinated Notes then
outstanding shall have requested the Trustee to call a meeting of
Securityholders to take any action specified in Section 11.01, by
written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not
have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or the Holders of
Senior Subordinated Notes in the amount above specified may
determine the time and place in The City of New York, New York or
elsewhere for such meeting and may call such meeting for the
purpose of taking such action, by mailing or causing to be mailed
notice thereof as provided in Section 11.02.
SECTION 11.04 Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of
Securityholders, a Person shall (a) be a registered Holder of one
or more Senior Subordinated Notes, or (b) be a Person appointed
by an instrument in writing as proxy for the registered Holder or
Holders of Senior Subordinated Notes. The only Persons who shall
be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company, the
Guarantors and their respective counsel.
SECTION 11.05 Regulations May Be Made by Trustee; Conduct of the
Meeting; Voting Rights; Adjournment.
Notwithstanding any other provision of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any action by or any meeting of Securityholders, in
regard to proof of the holding of Senior Subordinated Notes and
of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, and submission and examination
of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall think appropriate. Such regulations may fix a record
date and time for determining the Holders of record of Senior
Subordinated Notes entitled to vote at such meeting, in which
case those and only those Persons who are Holders of Senior
Subordinated Notes at the record date and time so fixed, or their
proxies, shall be entitled to vote at such meeting whether or not
they shall be such Holders at the time of the meeting.
The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Securityholders as provided
in Section 11.03, in which case the Company or the
Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote
of the Holders of a majority in principal amount of the Senior
Subordinated Notes represented at the meeting and entitled to
vote.
At any meeting each Securityholder or proxy shall be
entitled to one vote for each $1,000 principal amount of Senior
Subordinated Notes held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect
of any Senior Subordinated Notes challenged as not outstanding
and ruled by the chairman of the meeting to be not outstanding.
The chairman may adjourn any such meeting if he is unable to
determine whether any Holder or proxy shall be entitled to vote
at such meeting. The chairman of the meeting shall have no right
to vote other than by virtue of Senior Subordinated Notes held by
him or instruments in writing as aforesaid duly designating him
as the proxy to vote on behalf of other Securityholders. Any
meeting of Securityholders duly called pursuant to the provisions
of Section 11.02 or Section 11.03 may be adjourned from time to
time by vote of the Holders of a majority in aggregate principal
amount of the Senior Subordinated Notes represented at the
meeting and entitled to vote, and the meeting may be held as so
adjourned without further notice.
SECTION 11.06 Voting at the Meeting and Record to Be Kept.
The vote upon any resolution submitted to any meeting
of Securityholders shall be by written ballots on which shall be
subscribed the signatures of the Holders of Senior Subordinated
Notes or of their representatives by proxy and the principal
amount of the Senior Subordinated Notes voted by the ballot. The
permanent chairman of the meeting shall appoint two inspectors of
votes, who cast proxies at the meeting for or against any
resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of
each meeting of the Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to such
record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more
Persons having knowledge of the facts, setting forth a copy of
the notice of the meeting and showing that such notice was mailed
as provided in Section 11.02 or published as provided in Section
11.03. The record shall be signed and verified by the affidavits
of the permanent chairman and the secretary of the meeting and
one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 11.07 Exercise of Rights of Trustee or Securityholders
May Not Be Hindered or Delayed by Call of Meeting.
Nothing contained in this Article Eleven shall be
deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Securityholders under any of
the provisions of this Indenture or of the Senior Subordinated
Notes.
ARTICLE TWELVE
GUARANTEE OF SENIOR SUBORDINATED NOTES
SECTION 12.01 Unconditional Guarantee.
(a) Each Guarantor hereby unconditionally, jointly and
severally, guarantees as a primary obligor and not as a surety
(such guarantee to be referred to herein as the "Guarantee") to
each Holder of a Senior Subordinated Note authenticated and
delivered by the Trustee and to the Trustee and its successors
and assigns, the Senior Subordinated Notes and the obligations of
the Company hereunder or thereunder, including that: (i) the
principal of and premium, if any, and interest on the Senior
Subordinated Notes will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by
acceleration or otherwise and interest on the overdue principal,
if any, and interest on any interest to the extent lawful, of the
Senior Subordinated Notes and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder
(including, without limitation, all redemption obligations under
Section 3.07 and all purchase obligations under Section 4.18)
will be promptly paid in full or performed all in accordance with
the terms hereof and thereof; and (ii) in case of any extension
of time of payment or renewal of any Senior Subordinated Notes or
of any such other obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of the
extension or renewal, subject to any applicable grace period,
whether at stated maturity, by acceleration or otherwise,
subject, however, to the limitations set forth in Section 12.05.
Each Guarantor hereby agrees that its obligations hereunder shall
be unconditional, irrespective of the validity, regularity or
enforceability of the Senior Subordinated Notes or this
Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Senior Subordinated Notes
with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company, any action to enforce the same
or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each
Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands
whatsoever and covenants that this Guarantee will not be
discharged except by complete performance of the obligations
contained in the Senior Subordinated Notes, this Indenture and
this Guarantee. If any Securityholder or the Trustee is required
by any court or otherwise to return to the Company or any
Guarantor or any custodian, trustee, liquidator or other similar
official acting in relation to the Company or any Guarantor, any
amount paid by the Company or any Guarantor to the Trustee or
such Securityholder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between each Guarantor, on the
one hand, and the Holders and the Trustee, on the other hand, (x)
the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purposes of this
Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any
acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith
become due and payable by each Guarantor for the purpose of this
Guarantee.
(b) Each Guarantor further agrees that its Guarantee herein
constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right
to require that any resort be had by any Securityholder or the
Trustee held for payment of the Guarantees.
(c) Each Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Securityholder in enforcing any rights under this
Article Twelve.
SECTION 12.02 Seniority of Guarantee.
The obligations of each Guarantor to the Holders of
Senior Subordinated Notes and to the Trustee pursuant to the
Guarantee and this Indenture are, subject to Article Eight and
Section 12.09, expressly senior unsecured obligations of such
Guarantor.
SECTION 12.03 Severability.
In case any provision of this Guarantee shall be
invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 12.04 Release of a Guarantor.
If no Default or Event of Default exists or would exist
under this Indenture upon the sale or disposition (or the sale or
disposition of substantially all of the assets) of a Guarantor to
a Person which is not a Subsidiary of the Company, which sale or
disposition is otherwise in compliance with the terms of this
Indenture, including, without limitation, Section 4.18, such
Guarantor shall be deemed released from all its obligations under
this Article Twelve and its Guarantee without any further action
required on the part of the Trustee or any Holder. The Trustee
shall deliver an appropriate instrument evidencing such release
upon receipt of a request by the Company accompanied by an
Opinion of Counsel and an Officers' Certificate certifying as to
the compliance with this Section 12.04. Any Guarantor not so
released remains liable for the full amount of principal of and
premium, if any, and interest on the Senior Subordinated Notes
and other obligations as provided in this Article Twelve.
SECTION 12.05 Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder
confirms that it is the intention of all such parties that the
guarantee by such Guarantor pursuant to its Guarantee not
constitute a fraudulent transfer or conveyance for purposes of
the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state
law. To effectuate the foregoing intention, the Holders and each
Guarantor hereby irrevocably agree that the obligations of such
Guarantor under the Guarantee shall be limited to the maximum
amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to Section 12.07,
result in the obligations of such Guarantor under the Guarantee
not constituting such fraudulent conveyance or fraudulent
transfer under any applicable Bankruptcy Law or not otherwise
being void, voidable or unenforceable under any applicable
Bankruptcy Law.
SECTION 12.06 Guarantors May Consolidate, etc., on Certain
Terms.
(a) Nothing contained in this Indenture or in any of the Senior
Subordinated Notes shall prevent any consolidation or merger of a
Guarantor with or into the Company or another Person that is a
Guarantor as of the Issue Date or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or
substantially as an entirety, to the Company or another Person
that is a Guarantor as of the Issue Date.
(b) Except as set forth in Articles Four and Five hereof,
nothing contained in this Indenture or in any of the Senior
Subordinated Notes shall prevent any consolidation or merger of a
Guarantor with or into a corporation or corporations other than
the Company or another Person that is a Guarantor as of the Issue
Date (whether or not affiliated with such Guarantor), or
successive consolidations or mergers in which a Guarantor or its
successor or successors shall be a party or parties, or shall
prevent any sale or conveyance of the property of a Guarantor as
an entirety or substantially as an entirety, to a corporation
other than the Company or another Person that is a Guarantor as
of the Issue Date (whether or not affiliated with such
Guarantor); provided, however, that, subject to Sections 12.04
and 12.06(a), (i) such transaction does not violate any covenants
set forth in Articles Four and Five hereof, (ii) immediately
after such transaction, and giving effect thereto, no Default or
Event of Default shall have occurred as a result of such
transaction and be continuing, (iii) upon any such consolidation,
merger, sale or conveyance, the Guarantee set forth in this
Article Twelve, and the due and punctual performance and
observance of all of the covenants and conditions of this
Indenture to be performed by such Guarantor, shall be expressly
assumed (in the event that the Guarantor is not the surviving
corporation in the merger), by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to
the Trustee, by the Person formed by such consolidation, or into
which the Guarantor shall have merged, or by the Person that
shall have acquired such property, and (iv) the Company shall
have delivered to the Trustee an officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger,
sale or conveyance and such indenture comply with this Indenture,
that the Person formed by or surviving such transaction agrees to
be bound hereby, and that all conditions precedent herein
provided to such transaction have been satisfied. In the case of
any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture
executed and delivered to the Trustee and satisfactory in form to
the Trustee of the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had
been named herein as a Guarantor.
SECTION 12.07 Contribution.
In order to provide for just and equitable contribution
among the Guarantors, the Guarantors agree, inter se, that in the
event any payment or distribution is made by any Guarantor (a
"Funding Guarantor") under the Guarantee, such Funding Guarantor
shall be entitled to a contribution from all other Guarantors in
a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments,
damages and expenses incurred by that Funding Guarantor in
discharging the Company's obligations with respect to the Senior
Subordinated Notes or any other Guarantor's obligations with
respect to the Guarantee.
SECTION 12.08 Waiver of Subrogation.
Each Guarantor hereby irrevocably waives any claim or
other rights which it may now or hereafter acquire against the
Company that arise from the existence, payment, performance or
enforcement of such Guarantor's obligations under the Guarantee
and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and any
right to participate in any claim or remedy of any Holder of
Senior Subordinated Notes against the Company, whether or not
such claim, remedy or right arises in equity, or under contract,
statute or common law, including, without limitation, the right
to take or receive from the Company, directly or indirectly, in
cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If
any amount shall be paid to any Guarantor in violation of the
preceding sentence and the Senior Subordinated Notes shall not
have been paid in full, such amount shall have been deemed to
have been paid to such Guarantor for the benefit of, and held in
trust for the benefit of, the Holders of the Senior Subordinated
Notes, and shall forthwith be paid to the Trustee for the benefit
of such Holders to be credited and applied upon the Senior
Subordinated Notes, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Guarantor acknowledges
that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 12.08 is knowingly made in
contemplation of such benefits.
SECTION 12.09 Subordination of Guarantee.
Each Guarantor covenants and agrees, and each Holder of
a Senior Subordinated Note, by his acceptance thereof, likewise
covenants and agrees that the Guarantee in Section 12.01 hereof
is hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Guarantor Senior
Indebtedness of such Guarantor, in the same manner and to the
same extent as the Senior Subordinated Notes are subordinated to
Senior Indebtedness pursuant to Article Eight hereof; provided,
however, that, subject to Section 4.24 above, the Indebtedness of
each Guarantor represented by the Guarantee in Section 12.01
shall in all respects rank prior to all existing and future
Indebtedness of such Guarantor that is expressly subordinated to
Guarantor Senior Indebtedness.
SECTION 12.10 Execution of Guarantee.
To evidence the Guarantee to the Securityholders
specified in Section 12.01, the Guarantors hereby agree to
execute the notation of guarantee in substantially the form of
Exhibit A recited to be endorsed on each Senior Subordinated Note
ordered to be authenticated and delivered by the Trustee. Each
Guarantor hereby agrees that its Guarantee set forth in Section
12.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Senior Subordinated Note a notation of
such Guarantee. Each such notation of guarantee shall be signed
on behalf of each Guarantor by two Officers, or an Officer and an
Assistant Secretary or one Officer shall sign and one Officer or
an Assistant Secretary (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions) shall
attest to such notation of guarantee prior to the authentication
of the Senior Subordinated Note on which it is endorsed, and the
delivery of such Senior Subordinated Note on which it is
endorsed, and the delivery of such Senior Subordinated Note by
the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such notation of guarantee on behalf
of such Guarantor. Such signatures upon the notation of
guarantee may be by manual or facsimile signature of such
officers and may be imprinted or otherwise reproduced on the
notation of guarantee, and in case any such officer who shall
have signed the notation of guarantee shall cease to be such
officer before the Senior Subordinated Note on which such
notation of guarantee is endorsed shall have been authenticated
and delivered by the Trustee or disposed of by the Company, such
Senior Subordinated Note nevertheless may be authenticated and
delivered or disposed of as though the Person who signed the
notation of guarantee had not ceased to be such officer of the
Guarantor.
SECTION 12.11 Guarantee Unconditional, Etc.
Upon failure of payment when due of any obligations
covered by the Guarantee for whatever reason, each Guarantor will
be obligated to pay the same immediately. Each Guarantor hereby
agrees that its obligations hereunder shall be continuing,
absolute and unconditional, irrespective of: the recovery of any
judgment against the Company or any Guarantor; any extension,
renewal, settlement, compromise, waiver or release in respect of
any obligation of the Company under this Indenture or any Senior
Subordinated Note, by operation of law or otherwise; any
modification or amendment of or supplement to this Indenture or
any Senior Subordinated Note; any change in the corporate
existence, structure or ownership of the Company or any
Guarantor, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Company or any Guarantor or any
of their assets or any resulting release or discharge of any
obligation of the Company or any Guarantor contained in this
Indenture or any Senior Subordinated Note; the existence of any
claim, set-off or other rights which any Guarantor may have at
any time against the Company, any Guarantor, the Trustee, any
Securityholder or any other Person, whether in connection
herewith or any unrelated transactions, provided, that nothing
herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim; any invalidity or
unenforceability relating to or against the Company for any
reason of this Indenture or any Senior Subordinated Note, or any
provision of applicable law or regulation purporting to prohibit
the payment by the Company of the principal, premium, if any, or
interest or any Senior Subordinated Note or any other Guarantee;
or any other act or omission to act or delay of any kind by the
Company or any Guarantor, the Trustee, any Securityholder or any
other Person or any other circumstance whatsoever which might,
but for the provisions of this paragraph, constitute a legal or
equitable discharge of the Guarantors' obligations hereunder.
Each Guarantor's obligations hereunder shall remain in full force
and effect until this Indenture shall have terminated and the
principal of and interest on the Senior Subordinated Notes and
all other Guarantees shall have been paid in full. If at any
time any payment of the principal of or interest on any Senior
Subordinated Notes or any other payment in respect of any
Guarantees is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of the Company
or otherwise, each Guarantor's obligations hereunder with respect
to such payment shall be reinstated as though such payment had
been due but not made at such time, and this Article Twelve, to
the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor irrevocably waives any and all
rights to which it may be entitled, by operation of law or
otherwise, upon making any payment hereunder to be subrogated to
the rights of the payee against the Company with respect to such
payment or otherwise to be reimbursed, indemnified or exonerated
by the Company in respect thereof.
SECTION 12.12 Additional Guarantors.
Any Person that was not a Guarantor on the date of this
Indenture may become a Guarantor by executing and delivering to
the Trustee (a) a supplemental indenture in form and substance
satisfactory to the Trustee, which subjects such Person to the
provisions of this Indenture as a Guarantor and (b) an Opinion of
Counsel to the effect that such supplemental indenture has been
duly authorized and executed by such Person and that such
supplemental indenture, and this Indenture as so supplemented,
each constitutes the legal, valid, binding and enforceable
obligation of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles as may be
acceptable to the Trustee in its discretion). The Guarantee of
each Person described in this Section 12.12 shall apply to all
Senior Subordinated Notes theretofore or thereafter executed and
delivered, notwithstanding any failure of such Senior
Subordinated Notes to contain a notation of such Guarantee
thereon.
SECTION 12.13 Waiver of Stay, Extension or Usury Laws.
Each 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 each such Guarantor from
performing its Guarantee as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and
(to the extent that it may lawfully do so) each Guarantor hereby
expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee but will suffer and
permit the execution of every such power as though no such law
had been enacted.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 TIA Controls.
If any provision of this Indenture limits, qualifies,
or conflicts with the duties imposed by, or with another
provision included in this Indenture by operation of,
Sections 3.10 to 3.18, inclusive of the TIA, such imposed duties
or incorporated provision shall control. If any provision of
this Indenture modifies or excludes any provision of the TIA that
can be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as
the case may be.
SECTION 13.02 Notices.
Except as otherwise expressly provided herein, all
notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy
or telex), and shall be deemed to have been duly given or made
when delivered by hand, or five days after being deposited in
the United States mail, postage prepaid, or, in the case of telex
notice, when sent, answer-back received, or in the case of
telecopy notice, when sent, or in the case of a nationally
recognized overnight courier service, one business day after
deposit with such nationally recognized overnight courier
service, to the address set forth below or to such other address
as may be designated by any party in a written notice to the
other parties hereto:
IF TO THE COMPANY OR GUARANTORS:
TRISM, Inc.
4174 Jiles Road
Kennesaw, Georgia 30144
Attention: James G. Overley
Facsimile: (770) 795-4619
WITH, IN THE CASE OF ANY NOTICE UNDER ARTICLE SIX, A
COPY TO:
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Attention: Alan B. Hyman, Esq.
Facsimile: (212) 969-2900
IF TO THE TRUSTEE:
U.S. Bank Trust National Association
U.S. Bank Trust Center
180 East 5th Street
St. Paul, Minnesota 55101
Attention: Rick Prokosch
Facsimile: (651) 244-0089
Any notice or communication shall also be so mailed to
any Person described in TIA Section 3.13(c), to the extent
required by the TIA. Failure to mail notice or communication to
a Holder or any defect in it shall not effect its sufficiently
with respect to other Holders.
SECTION 13.03 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section
312(b) with other Securityholders with respect to their rights
under this Indenture or the Senior Subordinated Notes. The
Company, the Guarantors, the Trustee, the Registrar and any other
Person shall have the protection of TIA Section 312(c).
SECTION 13.04 Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company,
upon request, shall furnish to the Trustee, to the extent
required by this Indenture or the TIA:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 13.05 hereof) stating that, in
the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 13.05 hereof) stating that, in
the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company
or any Guarantor may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such
certificate or opinion of counsel may be based, and may state
that it is so based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an
officer or officers of the Company or such Guarantor stating that
the information with respect to such factual matters is in the
possession of the Company or such Guarantor, unless such counsel
knows, or in the exercise of reasonable care should know, that
the certificate of opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 13.05 Statements Required in a Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA 314(a)(4))
shall comply with the provisions of TIA 314(e) and shall
include:
(a) a statement that the Persons making such
certificate or opinion have read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Persons,
they have made such examination or investigation as is necessary
to enable them to express an informed opinion as to whether or
not such covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion
of such Persons, such condition or covenant has been satisfied.
SECTION 13.06 Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by a specified percentage of
Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
specified percentage of Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are received by the Trustee and, where it is
hereby expressly required, by the Company and the Guarantors.
Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Sections 7.01 and 7.02) conclusive
in favor of the Trustee, the Company and the Guarantors, if made
in the manner provided in this Section 13.06(a).
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take acknowledgments
of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of authority. The fact and date of
the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient, including the
execution of such instrument or writing without more.
(c) The ownership, principal amount and serial numbers
of Senior Subordinated Notes held by any Person, and the date of
holding the same, shall be proved by the most recent
securityholder list made available to the Trustee pursuant to
Section 2.05.
(d) If the Company shall solicit from the Holders of
Senior Subordinated Notes any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to Board Resolution, fix in advance
a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to
do so. Such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation is
completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the
Holders of record at the close of business on such record date
shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of outstanding Senior
Subordinated Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the outstanding Senior
Subordinated Notes shall be computed as of such record date;
provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it
shall become pursuant to the provisions of this Indenture not
later than eleven months after the record date.
(e) Except to the extent otherwise expressly provided
in this Indenture, any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Senior
Subordinated Note shall bind every future Holder of the same
Senior Subordinated Note and the Holder of every Senior
Subordinated Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such
action is made upon such Senior Subordinated Note.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action with regard to any
particular Senior Subordinated Note may do so with regard to all
or any part of the principal amount of such Senior Subordinated
Note or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any
different part of such principal amount.
SECTION 13.07 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or
at a meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its
functions; provided that no such rule shall conflict with the
terms of this Indenture or the TIA.
SECTION 13.08 Legal Holidays.
A "Legal Holiday" used with respect to a particular
place of payment is a Saturday, a Sunday or a day on which
banking institutions in New York, New York, are not required to
be open. If a payment date is a Legal Holiday at such place,
payment may be made at such place on the next succeeding day that
is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 13.09 Governing Law.
THIS INDENTURE AND THE SENIOR SUBORDINATED NOTES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
SECTION 13.10 Agent for Service; Submission to Jurisdiction;
Waiver of Immunities.
By the execution and delivery of this Indenture or any
amendment or supplement hereto, each of the Company and the
Guarantors (i) acknowledges that it has, by separate written
instrument, designated and appointed CT Corporation System (the
"Process Agent") currently located at 1633 Broadway, New York,
New York 10019, as its authorized agent upon which process may be
served in any suit, action or proceeding with respect to, arising
out of, or relating to, this Indenture, the Guarantees, or the
Senior Subordinated Notes or brought under U.S. federal or state
securities laws, which suit, action or proceeding may be
instituted in any U.S. federal or state court located in The City
of New York, New York, and acknowledges that the Process Agent
has accepted such designation, (ii) irrevocably submits to the
jurisdiction of any such court in any such suit, action or
proceeding and irrevocably waives, to the fullest extent that it
may effectively and lawfully do so, any obligation to the laying
of venue of any such suit, action or proceeding and the defense
of an inconvenient forum to the maintenance of any such suit
action or proceeding in such court, and (iii) agrees that service
of process upon the Process Agent shall be deemed in every
respect effective service of process upon the Company in any such
suit, action or proceeding. The Company and the Guarantors
further agrees to take any and all action, including the
execution and filing of any and all such documents and
instruments as may be necessary to continue such designation and
appointment of the Process Agent in full force and effect so long
as this Indenture shall be in full force and effect; provided
that the Company may and shall (to the extent the Process Agent
ceases to be able to be served on the basis contemplated herein),
by written notice to the Trustee, designate such additional or
alternative agents for service of process under this
Section 13.10 that (i) maintains an office located in the Borough
of Manhattan, The City of New York in the State of New York, (ii)
are either (a) counsel for the Company or (b) a corporate service
company which acts as agent for service of process for other
Persons in the ordinary course of its business and (iii) agrees
to act as agent for service of process in accordance with this
Section 13.10. Such notice shall identify the name of such agent
for process and the address of such agent for process in the
Borough of Manhattan, The City of New York, State of New York.
Upon the request of any Holder of a Senior Subordinated Note, the
Trustee shall deliver such information to such Holder.
Notwithstanding the foregoing, there shall, at all times, be at
least one agent for service of process for the Company and each
Guarantor appointed and acting in accordance with this Section
13.10.
To the extent that the Company or any Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court
or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its Property,
each of the Company and the Guarantors hereby irrevocably waives
such immunity in respect of its Obligations under this Indenture,
the Guarantees and the Senior Subordinated Notes, to the extent
permitted by law.
SECTION 13.11 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its
Subsidiaries. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.
SECTION 13.12 No Recourse Against Others.
A director, officer, employee, stockholder or
incorporator, as such, of the Company, or any Guarantor shall not
have any liability for any obligations of the Company or any
Guarantor under the Senior Subordinated Notes or this Indenture
or for any claim based on, in respect of or by reason of such
obligations or their creations. Each Securityholder by accepting
a Senior Subordinated Note waives and releases all such
liability. Such waiver and release are part of the consideration
for the issuance of the Senior Subordinated Notes.
SECTION 13.13 Successors.
All agreements of the Company and each Guarantor in
this Indenture and the Senior Subordinated Notes shall bind their
respective successors. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 13.14 Counterpart Originals.
All parties may sign any number of copies of this
Indenture in separate counterparts. Each signed copy shall be an
original, but all of them together shall represent the same
agreement.
SECTION 13.15 Severability.
In case any one or more of the provisions in this
Indenture or in the Senior Subordinated Notes shall be held
invalid, illegal or unenforceable, in any respect for any reason,
the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended
that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
SECTION 13.16 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and
Headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or
restrict any of the terms or provisions hereof.
[Remainder of Page Intentionally Left Blank]
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the date
first written above.
TRISM, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
Attest: ___________________________ By:
______________________________________
___________________ Lori-Anne Rosenberg
Assistant Vice President
TRISM SECURED TRANSPORTATION, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
TRISM HEAVY HAUL, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
E. L. POWELL & SONS TRUCKING CO.,
INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
TRI-STATE MOTOR TRANSIT CO.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
TRISM SPECIALIZED CARRIERS, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
AERO BODY AND TRUCK EQUIPMENT, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
TRISM SPECIAL SERVICES, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
DIABLO SYSTEMS, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
TRISM EASTERN, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
TRISM TRANSPORT, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
TRISM TRANSPORT SERVICES, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
TRISM LOGISTICS, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
TRISM EQUIPMENT, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
Exhibit A
[FORM OF SENIOR SUBORDINATED NOTE]
TRISM, INC.
12% Senior Subordinated Note Due 2005
CUSIP No. 896925 AB 0
No. ____________________ $____________________
TRISM, INC., a Delaware corporation ("Company", which
term includes any successor corporation), for value received
promises to pay to ___________________ or registered assigns, the
principal sum of _________________ Dollars, on February 15, 2005
and to pay interest thereon in cash semiannually in arrears at
the rate of 12% per annum on March 15 and September 15 of each
year until the principal hereof is paid or made available for
payment. Interest on this Senior Subordinated Note will accrue
from the most recent date to which interest has been paid or, if
no interest has been paid, from September 15, 1999. Interest
accruing from September 15, 2004, shall be paid in cash at
maturity. Payment of principal, premium, if any, and interest
shall be made in the manner and subject to the terms set forth in
provisions appearing on the reverse hereof, which provisions, in
their entirety, shall for all purposes have the same effect as if
set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Senior
Subordinated Note to be signed manually or by facsimile by its
duly authorized officers.
Dated: February 15, 2000
TRISM, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Senior Subordinated Notes described in the
within-mentioned Indenture.
U.S. BANK TRUST NATIONAL
ASSOCIATION
By:
___________________________________
_
Authorized Signatory
TRISM, INC.
12% Senior Subordinated Note Due 2005
1. Interest. TRISM, INC., a Delaware corporation ("the
Company"), promises to pay interest on the principal amount of
this Senior Subordinated Note at the rate per annum shown above.
The interest rate is subject to adjustment in certain
circumstances as described herein. The Company will pay interest
in cash, semi-annually on March 15 and September 15 of each year
(each, an "Interest Payment Date"), commencing March 15, 2000, to
Holders of record on the immediately preceding March 1, and
September 1 (each, a "Record Date"). Interest on the Senior
Subordinated Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from
September 15, 1999. Interest accruing from September 15, 2004,
shall be paid in cash at maturity. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and
interest on overdue installments of interest and premium, to the
extent lawful, at a rate equal to the rate of interest otherwise
payable on the Senior Subordinated Notes (after giving effect to
any increase thereof as described in Section 4.04 of the
Indenture) plus 2.00% per annum.
2. Method of Payment. The Company shall pay interest on
the Senior Subordinated Notes to the Persons who are the
registered Holders at the close of business on the Record Date
immediately preceding the Interest Payment Date even if the
Senior Subordinated Notes are canceled on registration of
transfer or registration of exchange after such Record Date. The
Company shall pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of
public and private debts ("U.S. Legal Tender"). However, the
Company may pay principal and interest by wire transfer of
Federal funds, or interest by its check payable in such U.S.
Legal Tender. The Company may deliver any such interest payment
to the Paying Agent or to a Holder at the Holder's registered
address. This Senior Subordinated Note is an obligation of the
Company and shall be governed by, and entitled to the benefits of
the Indenture (as such term is defined below) and shall be
subject to the terms of the Indenture (including the guarantee
provisions) and shall rank pari passu with and be subject to the
same terms (including the rate of interest from time to time
payable thereon) as the other Senior Subordinated Notes issued
thereunder (except, as the case may be, with respect to the
issuance date and aggregate principal amount).
3. Subordination. The indebtedness evidenced by the
Senior Subordinated Notes is, to the extent and in the manner
provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness
as defined in the Indenture, and this Senior Subordinated Note is
issued subject to such provisions. Each Holder of this Senior
Subordinated Note, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee his attorney-in-fact for
such purpose; provided, however, that the indebtedness evidenced
by this Senior Subordinated Note shall cease to be so subordinate
and subject in right of payment upon any defeasance of this
Senior Subordinated Note referred to in Section 9.02 or 9.03 of
the Indenture.
4. Paying Agent and Registrar. Initially, U.S. Bank Trust
National Association (the "Trustee") will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders. The Company or any
of its Subsidiaries may, subject to certain exceptions, act as
Paying Agent, Registrar or co-Registrar.
5. Indenture and Guarantees. The Company issued the
Senior Subordinated Notes under an Indenture, dated as of
February 15, 2000 (as amended or supplemented from time to time,
the "Indenture"), among the Company, the Guarantors and the
Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the
Senior Subordinated Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Senior
Subordinated Notes are subject to all such terms, and Holders of
Senior Subordinated Notes are referred to the Indenture and the
TIA for a statement of such terms. The Senior Subordinated Notes
are senior unsecured obligations of the Company limited in
aggregate principal amount to $30,000,000. Payment on each
Senior Subordinated Note is guaranteed on a senior unsecured
basis, jointly and severally, by the Guarantors pursuant to
Article Twelve of the Indenture.
6. Optional Redemption. The Senior Subordinated Notes may
be redeemed in whole, at any time, or from time to time in part,
at the option of the Company, at a Redemption Price equal to 101%
of the principal amount thereof, plus, in each case, accrued
interest to the Redemption Date.
7. Notice of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Senior Subordinated Notes to be
redeemed at such Holder's registered address. Senior
Subordinated Notes in denominations larger than $1,000 may be
redeemed in part.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Senior
Subordinated Notes called for redemption shall have been
deposited with the Paying Agent for redemption on such Redemption
Date, then, unless the Company defaults in the payment of such
Redemption Price, the Senior Subordinated Notes called for
redemption will cease to bear interest and the only right of the
Holders of such Senior Subordinated Notes will be to receive
payment of the Redemption Price.
8. Mandatory Repurchase. Subject to the provisions of
Section 4.18 of the Indenture, the Company is required to apply
the Net Cash Proceeds from certain Asset Sales to the mandatory
purchase of the Senior Subordinated Note, at a purchase price
equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of purchase.
9. Denominations; Transfer; Exchange. The Senior
Subordinated Notes are in registered form, without coupons. A
Holder shall register the transfer of or exchange Senior
Subordinated Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay
certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange any
Senior Subordinated Notes or portions thereof selected for
redemption.
10. Persons Deemed Owners. The registered Holder of a
Senior Subordinated Note shall be treated as the owner of it for
all purposes.
11. Unclaimed Money. If money for the payment of principal
or interest remains unclaimed for two years, the Trustee and the
Paying Agents will pay the money back to the Company at its
request. After that, all liability of the Trustee and such
Paying Agents with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity. If the
Company at any time deposits with the Trustee U.S. Legal Tender
or U.S. Government Obligations sufficient to pay the principal of
and premium, if any, and interest on the Senior Subordinated
Notes to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be
discharged from certain provisions of the Indenture and the
Senior Subordinated Notes (including the financial covenants, but
excluding its obligation to pay the principal of and premium, if
any, and interest on the Senior Subordinated Notes).
13. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Senior Subordinated Notes may be
amended or supplemented with the written consent of the Holders
of at least a majority in aggregate principal amount of the
Senior Subordinated Notes then outstanding. Without notice to or
consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Senior Subordinated Notes to,
among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Senior Subordinated Notes in addition
to or in place of certificated Senior Subordinated Notes, provide
for additional Guarantors pursuant to Section 4.19 of the
Indenture or otherwise, provide for successors pursuant to
Article Five or Section 12.06 of the Indenture, or comply with
any requirements of the Commission in connection with the
qualification of the Indenture under the TIA, provide for the
appointment of a successor Trustee pursuant to Section 7.08 or
make any other change that does not adversely affect the legal
rights of any Holder of a Senior Subordinated Note.
14. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries
to, among other things, pay dividends to stockholders of the
Company or make certain other restricted payments, incur
additional Indebtedness or Liens, enter into transactions with
Affiliates, make payments in respect of its Capital Stock and
merge or consolidate with any other Person and sell, lease,
transfer or otherwise dispose of substantially all of its
properties or assets. The limitations are subject to a number of
important qualifications and exceptions. The Company must
annually report to the Trustee regarding compliance with such
limitations.
15. Successors. When a successor assumes all the
obligations of its predecessor under the Senior Subordinated
Notes and the Indenture, the predecessor will not be released
from those obligations.
16. Defaults and Remedies. If an Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of Senior Subordinated Notes then
outstanding may declare all the Senior Subordinated Notes to be
due and payable immediately in the manner and with the effect
provided in the Indenture. Holders of Senior Subordinated Notes
may not enforce the Indenture or the Senior Subordinated Notes
except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or
the Senior Subordinated Notes. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Senior
Subordinated Notes then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Holders of Senior Subordinated Notes notice of any continuing
Default or Event of Default (except a Default or an Event of
Default in payment of principal or interest on any Secured Note,
including the failure to make a Net Proceeds Purchase) if it
determines that withholding notice is in their interest.
17. Trustee Dealings with the Company. The Trustee under
the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Senior Subordinated Notes and may
otherwise deal with the Company, the Guarantors, or their
respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others. No stockholder, director,
officer, employee or incorporator, as such, of the Company or any
Guarantor shall have any liability for any obligations of the
Company or any Guarantor under the Senior Subordinated Notes or
the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a
Senior Subordinated Note by accepting a Senior Subordinated Note
waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Senior
Subordinated Notes.
19. Authentication. This Senior Subordinated Note shall
not be valid until the Trustee or authenticating agent manually
signs the certificate of authentication on this Senior
Subordinated Note.
20. Abbreviations and Defined Terms. Customary
abbreviations may be used in the name of a Holder of a Senior
Subordinated Note or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures, the Company will cause CUSIP numbers to be printed on
the Senior Subordinated Notes as a convenience to the Holders of
the Senior Subordinated Notes. No representation is made as to
the accuracy of such numbers as printed on the Senior
Subordinated Notes and reliance may be placed only on the other
identification numbers printed hereon.
The Company will furnish to any Holder of a Senior
Subordinated Note upon written request and without charge a copy
of the Indenture. Requests may be made to: TRISM, Inc., 4174
Jiles Road, Kennesaw, Georgia 30144, Attention: James G.
Overley.
[Form of Notation on Note Relating to Guarantee]
GUARANTEE
Subject to the limitations set forth in the Indenture, the
Guarantors (as defined in the Indenture referred to in this
Senior Subordinated Note and each hereinafter referred to as a
"Guarantor," which term includes any successor or additional
Guarantor under the Indenture) have jointly and severally,
irrevocably and unconditionally guaranteed (a) the due and
punctual payment of the principal of and premium, if any, and
interest on the Senior Subordinated Notes, whether at maturity,
by acceleration, call for redemption, upon an Asset Sale,
purchase or otherwise, (b) the due and punctual payment of
interest on the overdue principal of and interest on the Senior
Subordinated Notes to the extent lawful, (c) the due and punctual
performance of all other Obligations of the Company and the
Guarantors to the Holders under the Indenture and the Senior
Subordinated Notes and (d) in case of any extension of time of
payment or renewal of any Senior Subordinated Notes or any of
such other Obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the
extension or renewal, whether at maturity, by acceleration, call
for redemption, upon an Asset Sale, purchase or otherwise.
Capitalized terms used herein shall have the same meanings
assigned to them in the Indenture unless otherwise indicated.
Payment on each Senior Subordinated Note is guaranteed,
jointly and severally, by the Guarantors pursuant to Article
Twelve of the Indenture and reference is made to such Indenture
for the precise terms of the Guarantees.
The Obligations of each Guarantor are limited to the maximum
amount as will, after giving effect to such maximum amount and
all other contingent and fixed liabilities of such Guarantor, and
after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the Obligations
of such other Guarantor under its Guarantee or pursuant to its
contribution Obligations under the Indenture, result in the
Obligations of such Guarantor under its Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under
any applicable Bankruptcy Law or not otherwise being void,
voidable or unenforceable under any applicable Bankruptcy Law.
Each Guarantor that makes a payment or distribution under a
Guarantee shall be entitled to a contribution from each other
Guarantor in a pro rata amount based on the Adjusted Net Assets
of each Guarantor.
Certain of the Guarantors may be released from their
Guarantees upon the terms and subject to the conditions provided
in the Indenture.
The Guarantee shall be binding upon each Guarantor listed
below and its successors and assigns and shall inure to the
benefit of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions in the
Indenture.
TRISM SECURED TRANSPORTATION, INC.
TRISM HEAVY HAUL, INC.
E. L. POWELL & SONS TRUCKING CO., INC.
TRI-STATE MOTOR TRANSIT CO.
TRISM SPECIALIZED CARRIERS, INC.
AERO BODY AND TRUCK EQUIPMENT, INC.
TRISM SPECIAL SERVICES, INC.
DIABLO SYSTEMS, INC.
TRISM EASTERN, INC.
TRISM TRANSPORT, INC.
TRISM TRANSPORT SERVICES, INC.
TRISM LOGISTICS, INC.
TRISM EQUIPMENT, INC.
Dated: February 15, 2000
TRISM, INC.
Attest: ___________________________ By:
______________________________________
Ralph S. Nelson James G. Overley
Secretary Senior Vice President and
Chief Financial Officer
[FORM OF ASSIGNMENT]
To assign this Senior Subordinated Note, fill in the form below:
I or we assign and transfer this Senior Subordinated Note to
_________________________________________________________________
_____________
_________________________________________________________________
_____________
_________________________________________________________________
_____________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of
assignee
_________________________________________________________________
_____________
and irrevocably appoint _______________ agent to transfer this
Senior Subordinated Note on the books of the Company. The agent
may substitute another to act for him.
Dated: ______________________________
Signed: _____________________________
_________________________________________________________________
_____________
(Sign exactly as your name appears on the front of this Senior
Subordinated Note)
Signature Guarantee: ______________________________
Signature must be guaranteed by an eligible guarantor
institution within the meaning of Securities and Exchange
Commission Rule 17Ad-15 (including banks, stock brokers,
savings and loan associations, national securities
exchanges, registered securities associations, clearing
agencies and credit unions) with membership or participation
in an approved signature guarantee medallion program if this
Senior Subordinated Note is delivered other than to and in
the name of the registered holder.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Subordinated
Note purchased by the Company pursuant to Section 4.18 of the
Indenture, check the following box: [__________]
If you want to elect to have only part of this Senior
Subordinated Note purchased by the Company pursuant to
Section 4.18 of the Indenture, state the amount:
$___________________.
Dated: ______________________________
Signed: _____________________________
_________________________________________________________________
_____________
(Sign exactly as your name appears on the front of this Senior
Subordinated Note)
Signature Guarantee: ______________________________
Signature must be guaranteed by an eligible guarantor
institution within the meaning of Securities and Exchange
Commission Rule 17Ad-15 (including banks, stock brokers,
savings and loan associations, national securities
exchanges, registered securities associations, clearing
agencies and credit unions) with membership or participation
in an approved signature guarantee medallion program if this
Senior Subordinated Note is delivered other than to and in
the name of the registered holder.