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EXHIBIT 4.1
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VENTURE HOLDINGS TRUST,
VEMCO, INC.,
VEMCO LEASING, INC.,
VENTURE INDUSTRIES CORPORATION,
VENTURE HOLDINGS CORPORATION,
VENTURE LEASING COMPANY,
VENTURE MOLD & ENGINEERING CORPORATION
AND
VENTURE SERVICE COMPANY,
ISSUERS,
AND
---------------------------,
TRUSTEE
----------------
INDENTURE
Dated as of July 1, 1997
The Huntington National Bank
$205,000,000
9 1/2% Senior Notes due 2005
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CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
------- -------
310(a)(1) ............................................................... 7.10
(a)(2) ............................................................... 7.10
(a)(3) ............................................................... N.A.
(a)(4) ............................................................... N.A.
(a)(5) ............................................................... 7.10
(b) ............................................................... 7.8;
............................................................... 7.10;
............................................................... 12.2
(c) ............................................................... N.A.
311(a) ............................................................... 7.11
(b) ............................................................... 7.11
(c) ............................................................... N.A.
312(a) ............................................................... 2.5
(b) ............................................................... 12.3
(c) ............................................................... 12.3
313(a) ............................................................... 7.6
(b)(1) ............................................................... N.A.
(b)(2) ............................................................... 7.6
(c) ............................................................... 7.6;
............................................................... 12.2
(d) ............................................................... 7.6
314(a) ............................................................... 4.7;
............................................................... 4.6
(b) ............................................................... N.A.
(c)(1) ............................................................... 2.2;
............................................................... 7.2;
............................................................... 12.4
(c)(2) ............................................................... 7.2;
............................................................... 12.4
(c)(3) ............................................................... N.A
(d) ............................................................... N.A
(e) ............................................................... 12.5
(f) ............................................................... N.A.
315(a) ............................................................... 7.1(b)
(b) ............................................................... 7.5;
............................................................... 7.6;
............................................................... 12.2
(c) ............................................................... 7.1(a)
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TIA INDENTURE
SECTION SECTION
------- -------
(d) ...................................................... 7.2;
...................................................... 6.11;
...................................................... 7.1(c)
(e) ...................................................... 6.14
316(a)(last sentence)................................................ 2.9
(a)(1)(A) ...................................................... 6.11
(a)(1)(B) ...................................................... 6.12
(a)(2) ...................................................... N.A.
(b) ...................................................... 6.12;
...................................................... 6.8
317(a)(1) ...................................................... 6.3
(a)(2) ...................................................... 6.4
(b) ...................................................... 2.4
318(a) ...................................................... 12.1
------------------
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of the Indenture.
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions....................................... 1
Section 1.2 Incorporation by Reference of TIA................. 24
Section 1.3 Rules of Construction............................. 24
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating................................... 25
Section 2.2 Execution and Authentication...................... 25
Section 2.3 Registrar and Paying Agent........................ 26
Section 2.4 Paying Agent to Hold Assets in Trust.............. 27
Section 2.5 Securityholder Lists.............................. 27
Section 2.6 Transfer and Exchange............................. 28
Section 2.7 Replacement Securities............................ 34
Section 2.8 Outstanding Securities............................ 35
Section 2.9 Treasury Securities............................... 35
Section 2.10 Temporary Securities.............................. 35
Section 2.11 Cancellation...................................... 36
Section 2.12 Defaulted Interest................................ 36
Section 2.13 CUSIP Numbers..................................... 36
ARTICLE III
REDEMPTION
Section 3.1 Right of Redemption............................... 37
Section 3.2 Notices to Trustee................................ 37
Section 3.3 Selection of Securities to Be Redeemed............ 38
Section 3.4 Notice of Redemption.............................. 38
Section 3.5 Effect of Notice of Redemption.................... 39
Section 3.6 Deposit of Redemption Price....................... 40
Section 3.7 Securities Redeemed in Part....................... 40
ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities............................. 41
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PAGE
Section 4.2 Maintenance of Office or Agency............................ 41
Section 4.3 Limitation on Restricted Payments.......................... 42
Section 4.4 Corporate Existence........................................ 47
Section 4.5 Payment of Taxes and Other Claims.......................... 47
Section 4.6 Compliance Certificate; Notice of Default.................. 47
Section 4.7 Reports.................................................... 48
Section 4.8 Waiver of Stay, Extension or Usury Laws.................... 49
Section 4.9 Limitation on Transactions with Affiliates................. 49
Section 4.10 Limitation on Incurrence of Additional Indebtedness and
Disqualified Capital Stock................................. 50
Section 4.11 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries..................................... 51
Section 4.12 Limitation on Liens Securing Indebtedness.................. 52
Section 4.13 Limitation on Sale of Assets and Subsidiary Stock.......... 53
Section 4.14 Limitation on Lines of Business............................ 58
Section 4.15 Limitation on Status as Investment Company................. 58
Section 4.16 Future Subsidiary Guarantors............................... 58
Section 4.17 Payment for Consent........................................ 58
Section 4.18 Corporate Opportunities.................................... 58
Section 4.19 Limitation on Amendments to Agreements..................... 59
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 Limitation on Merger, Sale or Consolidation................ 60
Section 5.2 Successor Corporation Substituted.......................... 62
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default.......................................... 62
Section 6.2 Acceleration of Maturity Date; Rescission and
Annulment.................................................. 64
Section 6.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.................................................... 66
Section 6.4 Trustee May File Proofs of Claim........................... 67
Section 6.5 Trustee May Enforce Claims Without Possession of
Securities................................................. 67
Section 6.6 Priorities................................................. 68
Section 6.7 Limitation on Suits........................................ 68
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PAGE
Section 6.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................... 69
Section 6.9 Rights and Remedies Cumulative............................. 70
Section 6.10 Delay or Omission Not Waiver............................... 70
Section 6.11 Control by Holders......................................... 70
Section 6.12 Waiver of Past Default..................................... 70
Section 6.13 Undertaking for Costs...................................... 71
Section 6.14 Restoration of Rights and Remedies......................... 71
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.......................................... 72
Section 7.2 Rights of Trustee.......................................... 73
Section 7.3 Individual Rights of Trustee............................... 74
Section 7.4 Trustee's Disclaimer....................................... 74
Section 7.5 Notice of Default.......................................... 75
Section 7.6 Reports by Trustee to Holders.............................. 75
Section 7.7 Compensation and Indemnity................................. 75
Section 7.8 Replacement of Trustee..................................... 76
Section 7.9 Successor Trustee by Merger, Etc........................... 77
Section 7.10 Eligibility; Disqualification.............................. 78
Section 7.11 Preferential Collection of Claims against Issuers.......... 78
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1 Option to Effect Legal Defeasance or Covenant
Defeasance................................................. 78
Section 8.2 Legal Defeasance and Discharge............................. 78
Section 8.3 Covenant Defeasance........................................ 79
Section 8.4 Conditions to Legal or Covenant Defeasance................. 79
Section 8.5 Deposited Cash and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions................... 81
Section 8.6 Repayment to Issuers....................................... 81
Section 8.7 Reinstatement.............................................. 82
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PAGE
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Supplemental Indentures Without Consent of Holders......... 83
Section 9.2 Amendments, Supplemental Indentures and Waivers with
Consent of Holders......................................... 84
Section 9.3 Compliance with TIA........................................ 85
Section 9.4 Revocation and Effect of Consents.......................... 85
Section 9.5 Notation on or Exchange of Securities...................... 86
Section 9.6 Trustee to Sign Amendments, Etc............................ 87
ARTICLE X
RIGHT TO REQUIRE REPURCHASE
Section 10.1 Repurchase of Securities at Option of the Holder upon
Change of Control......................................... 87
ARTICLE XI
GUARANTEES
Section 11.1 Guarantees................................................. 90
Section 11.2 Execution and Delivery of Guarantee........................ 92
Section 11.3 Certain Bankruptcy Events.................................. 92
Section 11.4 Release of Guarantors and Certain Issuers.................. 92
ARTICLE XII
MISCELLANEOUS
Section 12.1 TIA Controls............................................... 93
Section 12.2 Notices.................................................... 93
Section 12.3 Communications by Holders with Other Holders............... 94
Section 12.4 Certificate and Opinion as to Conditions Precedent......... 94
Section 12.5 Statements Required in Certificate or Opinion.............. 95
Section 12.6 Rules by Trustee, Paying Agent, Registrar.................. 95
Section 12.7 Legal Holidays............................................. 95
Section 12.8 Governing Law.............................................. 96
Section 12.9 No Adverse Interpretation of Other Agreements.............. 96
Section 12.10 No Recourse Against Others................................. 96
Section 12.11 Successors................................................. 96
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PAGE
Section 12.12 Duplicate Originals........................................ 97
Section 12.13 Severability............................................... 97
Section 12.14 Table of Contents, Headings, Etc........................... 97
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SCHEDULES
Schedule 1 - Restriction on Dividends
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Guarantee
Exhibit C-1 - Form of Tax Opinion
Exhibit C-2 - Form of Tax Opinion
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INDENTURE, dated as of July ___, 1997, among Venture Holdings Trust,
a grantor trust organized under the laws of Michigan (the "Trust"), Vemco, Inc.,
Vemco Leasing, Inc., Venture Industries Corporation, Venture Holdings
Corporation, Venture Leasing Company, Venture Mold & Engineering Corporation and
Venture Service Company, each a Michigan Corporation (each an "Issuer" and,
together with the Trust, the "Issuers") and The Huntington National Bank, a
national banking association, as Trustee.
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 Issuers' 9
1/2% Senior Notes due 2005:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1 Definitions.
"Acceleration Notice" shall have the meaning specified in Section
6.2.
"Acquired Indebtedness" means Indebtedness or Disqualified Capital
Stock of any person existing at the time such person becomes a Subsidiary of the
Trust, including by designation, or is merged or consolidated into or with the
Trust or one of its Subsidiaries; provided, however, that Indebtedness of such
person that is redeemed, defeased, retired or otherwise repaid at the time of or
immediately upon consummation of the transaction by which such person becomes or
merges with or into a Subsidiary of the Company shall not be Acquired
Indebtedness.
"Acquisition" means the purchase or other acquisition of any person
or substantially all the assets of any person or line of business of such person
by any other person, whether by purchase, merger, consolidation, or other
transfer, and whether or not for consideration.
"Affiliate" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Trust. For
purposes of this definition, the term "control" means the power to direct the
management and policies
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of a person, directly or through one or more intermediaries, whether through the
ownership of voting securities, by contract, or otherwise, provided, that, with
respect to an ownership interest in the Trust and its Subsidiaries a Beneficial
Owner of 10% or more of the total voting power normally entitled to vote in the
election of directors, managers or trustees, as applicable, shall for such
purposes be deemed to constitute control.
"Affiliate Transaction" shall have the meaning specified in Section
4.9.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Sale" shall have the meaning specified in Section 4.13.
"Asset Sale Offer" shall have the meaning specified in Section 4.13.
"Asset Sale Offer Amount" shall have the meaning specified in
Section 4.13.
"Asset Sale Offer Price" shall have the meaning specified in Section
4.13.
"Average Life" means, as of the date of determination, with respect
to any security or instrument, the quotient obtained by dividing (i) the sum of
the products (a) of the number of years from the date of determination to the
date or dates of each successive scheduled principal payment of such security or
instrument and (b) the amount of each such respective principal payment by (ii)
the sum of all such principal payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Beneficial Owner" or "beneficial owner" has the meaning attributed
to it in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue
Date), whether or not applicable, except that a "person" shall be deemed to have
"beneficial ownership" of all shares that any such person has the
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right to acquire, whether such right is exercisable immediately or only after
the passage of time.
"Beneficiary" means (i) any beneficiary of the Trust while it is a
trust or (ii) any shareholder of a successor corporation to the Trust after a
Trust Contribution.
"Board of Directors" means (A) either the board of directors or
managers of any Issuer or Subsidiary, as the case may be, or any duly authorized
committee of either such board and (B), in the case of the Trust, the Special
Advisor of the Trust; provided that (i), in the event the Special Advisor's
rights, duties and powers are assumed by the Successor Special Advisor Group,
"Board of Directors" means the Successor Special Advisor Group of the Trust and
(ii), in the event the Trust is reorganized as a corporation or a Trust
Contribution shall occur, "Board of Directors" means the board of directors of
the successor corporation.
"Board Resolution" means, with respect to any person, a duly adopted
resolution of the Board of Directors of such person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York,
are authorized or obligated by law or executive order to close.
"Business Opportunity" shall have the meaning specified in Section
4.18.
"Capital Stock" means, with respect to any person, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that person or any trust
beneficiary interests.
"Capitalized Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on the balance sheet in
accordance with GAAP.
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13
"Cash" or "cash" 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 or private debts.
"Cash Equivalent" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), or (ii) time deposits and
certificates of deposit and commercial paper issued by the parent corporation of
any domestic commercial bank of recognized standing having capital and surplus
in excess of $250 million, or (iii) commercial paper issued by others rated at
least A-1 or the equivalent thereof by Standard & Poor's Corporation or at least
P-1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc., or (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (ii) above, or (v) any money
market deposit accounts including those of the Trustee issued or offered by a
domestic commercial bank having capital and surplus in excess of $250 million,
or (vi) investments in money market funds which invest substantially all their
assets in securities of the type described in clauses (i), (ii) and (iii) above
and in the case of (i), (ii), and (iii) maturing within one year after the date
of acquisition.
"Change of Control" means (i) any merger or consolidation of the
Trust with or into any person or any sale, transfer or other conveyance, whether
direct or indirect, of all or substantially all of the assets of the Trust, on a
consolidated basis, in one transaction or a series of related transactions, if,
immediately after giving effect to such transaction(s), any "person" or "group"
(as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange
Act, whether or not applicable) other than an Excluded Person is or becomes the
"beneficial owner," directly or indirectly, of more than 40% of the total voting
power in the aggregate normally entitled to vote in the election of directors,
managers, or trustees, as applicable, of the transferee(s) or surviving entity
or entities and the Excluded Persons "beneficially own" a lesser percentage and
do not have the right or ability by voting power, contract or otherwise to elect
or designate for election a majority of such
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directors, managers or trustees, as applicable, (ii) any "person" or "group" (as
such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange
Act, whether or not applicable) other than an Excluded Person is or becomes the
"beneficial owner," directly or indirectly, of more than 40% of the total voting
power in the aggregate of all classes of Capital Stock of the Trust then
outstanding normally entitled to vote in elections of directors, managers or
trustees and the Excluded Persons "beneficially own" a lesser percentage and do
not have the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of such directors, managers or trustees, as
applicable, or (iii) during any period of 12 consecutive months after the Issue
Date, individuals who at the beginning of any such 12-month period constituted
the Board of Directors of the Trust (together with any new directors whose
election by such Board or whose nomination for election by the equity holders of
the Trust, (A) with respect to Venture Holdings Trust was made pursuant to the
terms of the Venture Trust Instrument, and (B) with respect to Venture Holdings
Corporation or another successor to the Trust, or their respective successors,
after the occurrence of a Trust Contribution, (x) was approved by the
Beneficiary of Venture Holdings Trust on or before the date of the Trust
Contribution, or (y) was approved by a majority of the directors of the Trust
whose appointment, election or nomination to the Board of Directors was approved
in accordance with the preceding clause (x) or by this clause (y)) cease for any
reason to constitute a majority of the Board of Directors of the Trust then in
office. Notwithstanding anything in this definition to the contrary, a "Change
of Control" shall not be deemed to have occurred solely as a result of a
transaction pursuant to which the Trust is reorganized or reconstituted as a
corporation or a Trust Contribution occurs in accordance with the provisions
described under Article V and no event which is otherwise a "Change of Control"
above shall have occurred.
"Change of Control Offer" shall have the meaning specified in
Section 10.1.
"Change of Control Purchase Date" shall have the meaning specified
in Section 10.1.
"Change of Control Purchase Price" shall have the meaning specified
in Section 10.1.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Compensation" means any compensation which would be required to be
disclosed pursuant to Item 402 of Regulation S-K of the Commission, but
excluding the granting of restricted stock awards, stock options and SARs
required to be disclosed in columns (f) and (g) of the Summary Compensation
Table of such Item.
"Consolidated Coverage Ratio" of any person on any date of
determination (the "Transaction Date") means the ratio, on a Pro Forma Basis, of
(a) the aggregate amount of Consolidated EBITDA of such person attributable to
continuing operations and businesses (exclusive of amounts attributable to
operations and businesses permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such person's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period.
"Consolidated EBITDA" means, with respect to any person, for any
period, the Consolidated Net Income of such person for such period adjusted to
add thereto (to the extent deducted from revenues in determining Consolidated
Net Income), without duplication, the sum of (i) consolidated income and
Michigan single business tax expense, (ii) consolidated depreciation and
amortization expense, provided that consolidated depreciation and amortization
of a Subsidiary that is a less than wholly owned Subsidiary shall only be added
to the extent of the equity interest of such person in such Subsidiary, (iii)
other non-cash charges of such person and its Subsidiaries reducing Consolidated
Net Income for such period, (iv) Consolidated Fixed Charges and (v) Trust Tax
Distributions.
"Consolidated Fixed Charges" of any person means, for any period,
the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of (a) interest expensed or capitalized, paid, accrued, or
scheduled to be paid or accrued (including, in accordance with the following
sentence,
6
16
interest attributable to Capitalized Lease Obligations) of such person and its
Consolidated Subsidiaries for such period, including (i) original issue discount
and non-cash interest payments or accruals on any Indebtedness, (ii) the
interest portion of all deferred payment obligations, and (iii) all commissions,
discounts and other fees and charges owed with respect to bankers' acceptances
and letters of credit financings and currency and Interest Swap and Hedging
Obligations, in each case to the extent attributable to such period, and (b) the
product of (x) the amount of dividends accrued or payable (or guaranteed) by
such person or any of its Consolidated Subsidiaries in respect of preferred
stock (other than by Subsidiaries of such person to such person or such person's
wholly owned Subsidiaries) and (y) one minus the then current effective
consolidated federal, state and local tax rate, of such person, expressed as a
decimal. For purposes of this definition, interest on a Capitalized Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined
in good faith by such person to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP.
"Consolidated Net Income" means, with respect to any person for any
period, the net income (or loss) of such person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication): (a) all gains and losses, net of
taxes, which are extraordinary (as determined in accordance with GAAP) and any
gains or losses, net of taxes and fees and expenses, from the sale or other
disposition of assets outside the ordinary course of business or from the
issuance or sale of any capital stock, (b) the net income of any person, other
than a wholly owned Consolidated Subsidiary, in which such person or any of its
Consolidated Subsidiaries has an interest, except to the extent of the amount of
any dividends or distributions actually paid in cash to such person or a wholly
owned Consolidated Subsidiary of such person during such period, but in any case
not in excess of such person's pro rata share of such person's net income for
such period, (c) the net income or loss of any person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition, (d)
the net income, if positive, of any of such person's Consolidated Subsidiaries
to the extent that the declaration or payment of dividends or
7
17
similar distributions is not at the time permitted by operation of the terms of
its charter or bylaws or any other agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to such Consolidated
Subsidiary, (e) any gain or loss, net of taxes, realized upon the termination of
any employee benefit plan, or (f) Trust Tax Distributions, to the extent not
already deducted.
"Consolidated Net Worth" of any person at any date means the
aggregate consolidated stockholders' equity or trust principal of such person
(plus amounts of equity attributable to preferred stock) and its Consolidated
Subsidiaries, as would be shown on the consolidated balance sheet of such person
prepared in accordance with GAAP, adjusted to exclude (to the extent included in
calculating such equity), (a) the amount of any such stockholders' equity
attributable to Disqualified Capital Stock or treasury stock of such person and
its Consolidated Subsidiaries, (b) all upward revaluations and other write-ups
in the book value of any asset of such person or a Consolidated Subsidiary of
such person, other than in connection with its acquisition, subsequent to the
Issue Date, and (c) all investments in Subsidiaries that are not Consolidated
Subsidiaries and in persons that are not Subsidiaries.
"Consolidated Subsidiary" means, for any person, each Subsidiary of
such person (whether now existing or hereafter created or acquired) the
financial statements of which are consolidated for financial statement reporting
purposes with the financial statements of such person in accordance with GAAP.
"Credit Agreement" means the credit agreement dated August 26, 1996,
as amended, by and among the Trust, certain of its subsidiaries, certain
financial institutions and NBD Bank, as agent, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, as such credit agreement and/or related documents may be
amended, restated, supplemented, restructured, renewed, replaced or otherwise
modified from time to time whether or not with the same agent, trustee,
representative lenders or holders, and, subject to the following provisos,
irrespective of any changes in the terms and conditions thereof; provided that
the aggregate principal amount of Indebtedness outstanding at any time does not
exceed the greater of (i) $200 million or (ii) the
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18
sum of 85% of the net book value of accounts receivable and 60% of the net book
value of inventories, in each case measured in accordance with GAAP, plus
accrued interest and such additional amounts as may be deemed to be outstanding
in the form of Interest Swap and Hedging Obligations with lenders party to the
Credit Agreement, minus the amount of any such Indebtedness retired with Net
Cash Proceeds from any Asset Sale or assumed by a transferee in an Asset Sale,
provided that an incurrence under the Credit Agreement in excess of the greater
of clause (i) or (ii) may be made pursuant to the Debt Incurrence Ratio. Without
limiting the generality of the foregoing, the term "Credit Agreement" shall
include any amendment, amendment and restatement, renewal, extension,
restructuring, supplement or modification to any Credit Agreement and all
refundings, refinancings and replacements of any Credit Agreement, including any
agreement (i) extending the maturity of any Indebtedness incurred thereunder or
contemplated thereby, (ii) adding or deleting borrowers or guarantors
thereunder, so long as borrowers and issuers include one or more of the Trust
and its Subsidiaries and their respective successors and assigns or (iii)
otherwise altering the terms and conditions thereof in a manner not prohibited
by the terms hereof.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Debt Incurrence Ratio" shall have the meaning specified in Section
4.10.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Definitive Securities" means Securities that are in the form of the
Note attached hereto as Exhibit A that do not include the information called for
by footnotes 1 and 2 thereof.
"Depository" means, with respect to the Securities issuable or
issued in whole or in part in global form, the person specified in Section 2.3
as the Depository with respect to the Securities, until a successor shall have
been appointed and become such pursuant to the applicable provision of this
Inden-
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19
ture, and, thereafter, "Depository" shall mean or include such successor.
"Disqualified Capital Stock" means (a) with respect to a person,
except as to any Subsidiary of such person, any Equity Interest of such person
that, by its terms or by the terms of any security into which it is convertible,
exercisable or exchangeable, is, or upon the happening of an event or the
passage of time would be, required to be redeemed or repurchased (including at
the option of the holder thereof) by such person or any of its Subsidiaries, in
whole or in part, on or prior to the Stated Maturity of the Notes and (b) with
respect to any Subsidiary of such person (including with respect to any
Subsidiary of the Trust), any Equity Interests other than any common equity with
no preference, privileges, or redemption or repayment provisions.
"Equity Interest" of any person means any shares, interests,
participations or other equivalents (however designated) in such person's equity
(including any trust beneficiary interests), and shall in any event include any
Capital Stock issued by, or partnership or membership interests in, such person.
"Event of Default" shall have the meaning specified in Section 6.1.
"Event of Loss" means, with respect to any property or asset, any
(i) loss, destruction or damage of such property or asset or (ii) any
condemnation, seizure or taking, by exercise of the power of eminent domain or
otherwise, of such property or asset, or confiscation or requisition of the use
of such property or asset.
Excess Compensation" means the aggregate Compensation paid by the
Trust and its Subsidiaries in any fiscal year to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Family
Members to the extent such aggregate Compensation exceeds the sum of (a) Trust
Tax Distributions paid in such fiscal year as Compensation to the Beneficiary of
the Trust in lieu of distributions and (b) the greater of (i) $1.5 million
multiplied by one plus the percentage increase in the Consumer Price Index from
July 1, 1997 to the first day of such fiscal year and (ii) 5% of the sum of,
without duplication, (A) Consolidated Net Income of the Trust for the preceding
fiscal
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year, plus (B) Trust Tax Distributions in the preceding fiscal year, plus (C)
the aggregate amount of Compensation paid by the Trust and its Subsidiaries to
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Family Members during the preceding fiscal year.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Exchange Offer" means the offer by the Issuers to exchange the
Series B Notes thereof for the Original Notes thereof made pursuant to the
Registration Rights Agreement.
"Excluded Person" means ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, his estate or legal
representative, members of his immediate family, all lineal descendants of ▇▇▇▇▇
▇. ▇▇▇▇▇▇ and all spouses of such lineal descendants (or any trust or entity
whose sole beneficiaries or Equity Interest holders are any one or more of the
foregoing).
"Exempted Affiliate Transaction" means (a) any transaction with an
officer or director in the ordinary course of business, including employee or
director compensation arrangements, (b) payments permitted under the terms of
Section 4.3, (c) transactions solely between the Trust and any of its
Subsidiaries or solely among Subsidiaries of the Trust and (d) performance of
any agreement in existence on the Issue Date.
"Fairness Committee" means a committee duly established pursuant to
the Venture Trust Instrument and the bylaws of each other Issuer, Guarantor and
Subsidiary without whose approval (and without the approval of a majority of its
Independent members) the Trust, an Issuer, a Guarantor or a Subsidiary shall not
be authorized to enter into any transaction or take any action which pursuant to
the terms of this Indenture requires approval of the Fairness Committee.
"Family Members" means (i) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇'▇ spouse and (ii) each of
▇▇▇▇▇ ▇. ▇▇▇▇▇▇'▇ parents, children, grandchildren, siblings, mothers and
fathers-in-law, sons and daughters-in-law and brothers and sisters-in-law who
(a) shares the same principal residence as ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and (b) is an officer
or director of the Trust or any of its Subsidiaries or among the five most
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highly compensated employees of the Trust or any of its Subsidiaries.
"Foreign Subsidiary" means a Subsidiary not organized under the laws
of the United States or any political subdivision thereof.
"GAAP" means United States generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession in the United States as in effect on the Issue Date.
"Global Security" means a Security that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote 2
to the form of Security attached hereto as Exhibit A.
"Guarantee" shall have the meaning provided in Section 11.1.
"Guarantors" means the Guarantors provided in Article XI hereof.
"Holder" or "Securityholder" means the person in whose name a
Security is registered on the Registrar's books.
"incur" shall have the meaning specified in Section 4.10.
"Incurrence Date" shall have the meaning specified in Section 4.10.
"Indebtedness" of any person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such person, except for
accrued current liabilities incurred in the ordinary course of business, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such person or only to a portion thereof), (ii) evidenced
by bonds, notes, debentures or similar instruments, (iii) representing the
balance deferred and unpaid
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of the purchase price of any property or services, except those incurred in the
ordinary course of its business that would constitute ordinarily a trade payable
to trade creditors, (iv) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (v) Capitalized Lease Obligations, or
(vi) evidenced by a letter of credit or a reimbursement obligation of such
person with respect to any letter of credit; (b) all net obligations of such
person under Interest Swap and Hedging Obligations; (c) all liabilities and
obligations of others of the kind described in the preceding clause (a) or (b)
that such person has guaranteed or that is otherwise its legal liability or
which are secured by any assets or property of such person; and (d) any and all
deferrals, renewals, extensions, refinancing and refundings (whether direct or
indirect) of, or amendments, modifications or supplements to, any liability of
the kind described in any of the preceding clauses (a), (b) or (c), or this
clause (d), whether or not between or among the same parties, and (e) all
Disqualified Capital Stock of such person (measured at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends). For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value to be determined in good faith by the
board of directors of the issuer (or managing general partner of the issuer) of
such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent" means, with respect to any Issuer or Guarantor or any
of their Subsidiaries, a person who would qualify as an "independent director"
within the meaning of the rules of the New York Stock Exchange and who (i) shall
not receive any payment or other fees for services to the Trust or any of its
Affiliates (other than for serving as a member of the Fairness Committee of the
Trust or of a Subsidiary of the Trust) and (ii) shall not be an Affiliate,
officer, member or employee
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of any firm, company or other entity that has performed services for the Trust
or any of its Affiliates during the preceding three fiscal years or that the
Trust or any of its Affiliates proposes to have perform services if the amount
of compensation for such services during any fiscal year exceeded or would
exceed 5% of such firm's gross revenues during any of its three preceding fiscal
years.
"Initial Purchasers" means First Chicago Capital Markets, Inc. and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation.
"Interest Payment Date" means the stated due date of an installment
of interest on the Securities.
"Interest Swap and Hedging Obligation" means any obligation of any
person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement 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.
"Investment" by any person in any other person means (without
duplication) (a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such person (whether for cash, property, services, securities or
otherwise) of capital stock, bonds, notes, debentures, partnership or other
ownership interests or other securities, including any options or warrants, of
such other person; (b) the making by such person of any deposit with, or
advance, loan or other extension of credit to, such other person (including the
purchase of property from another person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such other
person) or any commitment to make any such advance, loan or extension (but
excluding accounts receivable or deposits arising in the ordinary course of
business); (c) other than guarantees of
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Indebtedness of the Issuers or any Guarantor to the extent Section 4.10 is not
violated, the entering into by such person of any guarantee of, or other credit
support or contingent obligation with respect to, Indebtedness or other
liability of such other person; (d) the making of any capital contribution by
such person to such other person; and (e) the designation by the Board of
Directors of the Trust of any person to be an Unrestricted Subsidiary. The
Issuers shall be deemed to make an Investment in an amount equal to the fair
market value of the net assets of any subsidiary (or, if none of the Issuers or
their Subsidiaries has theretofore made an Investment in such subsidiary, in an
amount equal to the Investments being made), at the time that such subsidiary is
designated an Unrestricted Subsidiary, and any property transferred to an
Unrestricted Subsidiary from an Issuer or a Subsidiary shall be deemed an
Investment valued at its fair market value at the time of such transfer,
provided, however, if in any such case such fair market value exceeds $3
million, such determination of fair market value shall be based upon an opinion
or appraisal by an accounting, appraisal or investment banking firm of national
standing.
"Issue Date" means the date of first issuance of the Notes under the
Indenture.
"Issuer" means each party named as such in this Indenture until a
successor replaces it pursuant to the Indenture and thereafter means such
successor.
"Legal Holiday" shall have the meaning provided in Section 12.7.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"Liquidated Damages" means all liquidated damages owing pursuant to
the Registration Rights Agreement.
"Material Subsidiary" means any Subsidiary of the Trust that is a
"significant subsidiary" of the Trust as defined in Rule 1-02 of Regulation S-X
of the Commission.
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25
"Maturity Date," when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at Stated Maturity, a Change of Control Purchase
Date, a purchase date with respect to an Asset Sale Offer or by declaration of
acceleration, call for redemption or otherwise.
"Net Cash Proceeds" means the aggregate amount of cash or Cash
Equivalents received by the Trust in the case of a sale of Qualified Capital
Stock and by the Trust and its Subsidiaries in respect of an Asset Sale plus, in
the case of an issuance of Qualified Capital Stock upon any exercise, exchange
or conversion of securities (including options, warrants, rights and convertible
or exchangeable debt) of the Trust that were issued for cash on or after the
Issue Date, the amount of cash originally received by the Trust upon the
issuance of such securities (including options, warrants, rights and convertible
or exchangeable debt) less, in each case, the sum of all payments, fees,
commissions and expenses (including, without limitation, the fees and expenses
of legal counsel and investment banking fees and expenses) incurred in
connection with such Asset Sale or sale of Qualified Capital Stock, and, in the
case of an Asset Sale only, less (a) the amount (estimated reasonably and in
good faith by the Trust) of income, franchise, sales and other applicable taxes
required to be paid by the Trust Beneficiary or any of its respective
Subsidiaries in connection with such Asset Sale, (b) repayment of Indebtedness
that is required to be repaid in connection with such Asset Sale and (c)
appropriate amounts to be provided by the Trust or any Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and reserved by the Trust or any Subsidiary, as
the case may be after such Asset Sale, including, without limitation, pension
and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale.
"Notes" See "Securities."
"Offering Memorandum" means the Offering Memorandum of the Issuers
dated July 2, 1997 with respect to the Securities.
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26
"Officer" means, with respect to the Issuers, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Controller, or the Secretary or Assistant
Secretary, and in addition with respect to the Trust, the Special Advisor under
the Venture Trust Instrument.
"Officers' Certificate" means, with respect to the Issuers or any
Guarantor, a certificate signed by two Officers of relevant Issuers or such
Guarantor and otherwise complying with the requirements of Sections 12.4 and
12.5.
"Operating Expense or Cost Reduction" means, with respect to the
calculation of a Consolidated Coverage Ratio on a Pro Forma Basis, an operating
expense or cost reduction with respect to an Acquisition, which, in the good
faith estimate of management, will be realized as a result of such Acquisition,
provided that the foregoing eliminations of operating expenses and realizations
of cost reductions shall be of the types permitted to be given effect to in
accordance with Article 11 of Regulation S-X under the Exchange Act as in effect
on the Issue Date and such reduction is subject to negative comfort by the
Trust's independent public accountants.
"Opinion of Counsel" means a written opinion from legal counsel to
the Issuers complying with the requirements of Sections 12.4 and 12.5. Unless
otherwise required by this Indenture, the counsel may be in-house counsel to the
Issuers.
"Original Notes" means the 9 1/2% Senior Notes due 2005, as amended
and supplemented from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture.
"Pari Passu Indebtedness" means any Indebtedness of any Issuer that
is pari passu in right of payment to the Securities.
"Paying Agent" shall have the meaning specified in Section 2.3.
"Permitted Indebtedness" means any of the following:
(a) the Issuers and the Guarantors may incur Indebtedness evidenced
by the Notes and represented by the
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Indenture up to the amounts specified therein as of the date thereof;
(b) the Issuers and the Guarantors may incur Indebtedness pursuant
to the Credit Agreement;
(c) the Issuers or any Guarantor may guarantee any Indebtedness of
any other Issuer or any Guarantor that was permitted to be incurred under
the Debt Incurrence Ratio test of Section 4.10 or under any other clause
of this definition or Indebtedness existing on the Issue Date;
(d) the Issuers or any Subsidiary may incur Indebtedness under
Interest Swap and Hedging Obligations (provided (i) that such Interest
Swap and Hedging Obligations are designed to protect the Issuers and their
Subsidiaries from fluctuations in interest rates on Indebtedness incurred
in accordance with the Indenture (and are used for bona fide hedging, and
not speculative, purposes), and (ii) the notional principal amount of such
Interest Swap and Hedging Obligations does not exceed the principal amount
of the Indebtedness to which such Interest Swap and Hedging Obligations
relate;
(e) the Issuers or any Subsidiary may incur Indebtedness represented
by letters of credit for the account of the Issuers or such Subsidiary, as
the case may be, in order to provide security for workers' compensation
claims and payment obligations in connection with self-insurance, that,
taken together do not in the aggregate exceed $5 million at any time
outstanding.
(f) the Issuers or any Subsidiary may incur Indebtedness arising
from agreements providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred in connection with
the disposition of any business, assets or Subsidiary, other than
guarantees of Indebtedness incurred by any person acquiring all or any
portion of such business, assets or Subsidiary for the purpose of
financing such acquisition; provided that the maximum aggregate liability
in respect of all such Indebtedness shall at no time exceed the gross
proceeds
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actually received by the Issuers and the Subsidiary in connection with
such dispositions;
(g) the Issuers and the Guarantors, as applicable, may incur
Refinancing Indebtedness with respect to any Indebtedness or Disqualified
Capital Stock, as applicable, described in clause (a) of this definition,
incurred under the Debt Incurrence Ratio test of Section 4.10 or which is
outstanding on the Issue Date so long as such Refinancing Indebtedness is
secured only by the assets that secured the Indebtedness so refinanced or
assets acquired after the Issue Date or the Notes are equally and ratably
secured;
(h) the Issuers and the Guarantors may incur Indebtedness in an
aggregate amount outstanding at any time (including any Indebtedness
issued to refinance, replace, or refund such Indebtedness) of up to $5
million, minus the amount of any such Indebtedness retired with Net Cash
Proceeds from any Asset Sale or assumed by a transferee in an Asset Sale;
(i) the Issuers and the Subsidiaries may incur Indebtedness solely
in respect of bankers acceptances and performance bonds (to the extent
that such incurrence does not result in the incurrence of any obligation
to repay any obligation relating to borrowed money of others), all in the
ordinary course of business in accordance with customary industry
practices, in amounts and for the purposes customary in the Issuers'
industry; provided that the aggregate principal amount outstanding of such
Indebtedness (including any Indebtedness issued to refinance, refund or
replace such Indebtedness) shall at no time exceed $1 million; and
(j) The Issuers may incur Indebtedness to each other or to any
wholly owned Subsidiary, and any wholly owned Subsidiary may incur
Indebtedness to any other wholly owned Subsidiary or to any Issuer;
provided that, in the case of Indebtedness of an Issuer, such obligations
shall be unsecured and subordinated in all respects to such Issuer's
obligations pursuant to the Notes and the date of any event that causes a
Subsidiary to no longer be a wholly owned Subsidiary shall be an
Incurrence Date.
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"Permitted Investment" means (a) Investments in any of the Notes and
any Permitted Indebtedness which is otherwise an Investment; (b) Investments in
Cash Equivalents; (c) any Investment in the Trust or a person in a Related
Business, which is, or as a result of such Investment becomes, a wholly owned
Subsidiary of the Trust; (d) other Investments not to exceed $5 million; (e)
Investments in non-cash proceeds taken in connection with an Asset Sale
otherwise complying with Section 4.13; (f) loans or advances to employees and
officers of the Issuers and their Subsidiaries in the ordinary course of
business for bona fide business purposes; (g) Investments in securities of trade
creditors or customers received pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of such trade creditors or
customers; and (h) a Qualified Exchange.
"Permitted Lien" means (a) Liens incurred in connection with the
Credit Agreement; (b) Liens existing on the Issue Date; (c) Liens imposed by
governmental authorities for taxes, assessments or other charges not yet subject
to penalty or which are being contested in good faith and by appropriate
proceedings, if adequate reserves with respect thereto are maintained on the
books of the company in accordance with GAAP; (d) statutory liens of carriers,
warehousemen, mechanics, materialmen, landlords, repairmen or other like Liens
arising by operation of law in the ordinary course of business provided that (i)
the underlying obligations are not overdue for a period of more than 60 days, or
(ii) such Liens are being contested in good faith and by appropriate proceedings
and adequate reserves with respect thereto are maintained on the books of the
Trust in accordance with GAAP; (e) Liens securing the performance of bids, trade
contracts (other than borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business; (f) easements, rights-of-way, zoning,
similar restrictions and other similar encumbrances or title defects which,
singly or in the aggregate, do not in any case materially detract from the value
of the property subject thereto (as such property is used by the Trust or any of
its Subsidiaries) or interfere with the ordinary conduct of the business of the
Trust or any of its Subsidiaries; (g) Liens arising by operation of law in
connection with judgments, only to the extent, for an amount and for a period
not resulting in an Event of Default with respect thereto; (h)
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pledges or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social security
legislation; (i) Liens securing the Notes; (j) Liens securing Indebtedness of a
person existing at the time such person becomes a Subsidiary or is merged with
or into the Trust or a Subsidiary, provided that such Liens were in existence
prior to the date of such acquisition, merger or consolidation, were not
incurred in anticipation thereof, and do not extend to any other assets; (k)
leases or subleases granted to other persons in the ordinary course of business
not materially interfering with the conduct of the business of the Trust or any
of its Subsidiaries or materially detracting from the value of the relative
assets of the Trust or any Subsidiary; (l) Liens arising from precautionary
Uniform Commercial Code financing statement filings regarding operating leases
entered into by the Trust or any of its Subsidiaries in the ordinary course of
business; (m) Liens to secure payment of a portion of the purchase price of any
tangible fixed asset acquired by any Issuer or any Guarantor if the outstanding
principal amount of the Indebtedness is secured by any such Lien does not at any
time exceed the purchase price paid for such fixed asset, provided that such
Lien does not encumber any other asset at any time owned by any Issuer or any
Guarantor, and provided, further, that not more than one such Lien shall
encumber such fixed asset at any one time; and (n) Liens securing Refinancing
Indebtedness incurred to refinance any Indebtedness that was previously so
secured in a manner no more adverse to the Holders of the Notes than the terms
of the Liens securing such refinanced Indebtedness, provided that the
Indebtedness secured is not increased and the lien is not extended to any
additional assets or property unless the Notes are equally and ratably secured
by such additional assets or the additional assets were acquired after the Issue
Date.
"Person" or "person" means any individual, limited liability
company, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or other agency or
political subdivision thereof.
"principal" of any Indebtedness (including the Securities) means the
principal of such Indebtedness plus any applicable premium, if any, on such
Indebtedness.
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"Pro Forma Basis" means, for purposes of calculating the
Consolidated Coverage Ratio, giving pro forma effect to certain transactions
such that, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date shall
be assumed to have occurred on the first day of the Reference Period and any
Operating Expense or Cost Reduction with respect to such Acquisition shall be
deducted from such calculation, (ii) transactions giving rise to the need to
calculate the Consolidated Coverage Ratio shall be assumed to have occurred on
the first day of the Reference Period, (iii) the incurrence of any Indebtedness
or issuance of any Disqualified Capital Stock during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date (and
the application of the proceeds therefrom, including to refinance or retire
other Indebtedness) shall be assumed to have occurred on the first day of such
Reference Period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed based on the
average daily balance during the Reference Period), and (iv) the Consolidated
Fixed Charges of such person attributable to interest on any Indebtedness or
dividends on any Disqualified Capital Stock bearing a floating interest (or
dividend) rate shall be computed on a pro forma basis as if the average rate in
effect from the beginning of the Reference Period to the Transaction Date had
been the applicable rate for the entire period, unless such person or any of its
Subsidiaries is a party to an Interest Swap or Hedging Obligation (which shall
remain in effect for the 12-month period immediately following the Transaction
Date) that has the effect of fixing the interest rate on the date of
computation, in which case such rate (whether higher or lower) shall be used.
"Property" or "property" means any right or interest in or to
property or assets of any kind whatsoever, whether real, personal or mixed and
whether tangible, intangible, contingent, indirect or direct.
"Public Equity Offering" means an underwritten offering of common
stock of the Trust for cash pursuant to an effective registration statement
under the Securities Act.
"Qualified Capital Stock" means any Capital Stock of the Trust that
is not Disqualified Capital Stock.
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"Qualified Exchange" means any legal defeasance, redemption,
retirement, repurchase or other acquisition of Indebtedness of any Issuer or
Capital Stock of the Trust issued on or after the Issue Date with the Net Cash
Proceeds received by the Trust from the substantially concurrent sale of
Qualified Capital Stock or any exchange of Qualified Capital Stock for any
Capital Stock or Indebtedness of the Trust issued on or after the Issue Date.
"Record Date" means a Record Date specified in the Securities
whether or not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and Paragraph 5 in the form of Security.
"Redemption Price," when used with respect to any Security to be
redeemed, means the redemption price for such redemption set forth in Paragraph
5 in the form of Security, which shall include in each case accrued and unpaid
interest with respect to such Security to the applicable Redemption Date.
"Reference Period" with regard to any person means the four full
fiscal quarters ended immediately preceding any date upon which any
determination is to be made pursuant to the terms of the Notes or the Indenture.
"Refinancing Indebtedness" means Indebtedness or Disqualified
Capital Stock (a) issued in exchange for, or the proceeds from the issuance and
sale of which are used substantially concurrently to repay, redeem, defease,
refund, refinance, discharge or otherwise retire for value, in whole or in part,
or (b) constituting an amendment, restatement, modification, restructuring,
replacement or supplement to, or a deferral or renewal of ((a) and (b) above
are, collectively, a "Refinancing"), any Indebtedness or Disqualified Capital
Stock in a principal amount or, in the case of Disqualified Capital Stock,
liquidation preference, not to exceed (after deduction of reasonable and
customary fees and expenses incurred in connection with the Refinancing) the
lesser of (i) the principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, of the Indebtedness or Disqualified Capital Stock
so Refinanced
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and (ii) if such Indebtedness being Refinanced was issued with an original issue
discount, the accreted value thereof (as determined in accordance with GAAP) at
the time of such Refinancing; provided, that (A) such Refinancing Indebtedness
of any Subsidiary of the Trust shall only be used to Refinance outstanding
Indebtedness or Disqualified Capital Stock of such Subsidiary, (B) such
Refinancing Indebtedness shall (x) not have an Average Life shorter than the
Indebtedness or Disqualified Capital Stock to be so refinanced at the time of
such Refinancing and (y) in all respects, be no less subordinated or junior, if
applicable, to the rights of Holders of the Notes than was the Indebtedness or
Disqualified Capital Stock to be refinanced and (C) such Refinancing
Indebtedness shall have a final stated maturity or redemption date, as
applicable, no earlier than the final stated maturity or redemption date, as
applicable, of the Indebtedness or Disqualified Capital Stock to be so
refinanced.
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement by and among the Issuers and the Initial Purchasers, dated as of the
Issue Date.
"Related Business" means the business conducted (or proposed to be
conducted) by the Issuers and their Subsidiaries as of the Issue Date and any
and all businesses that in the good faith judgment of the Board of Directors of
the Trust are reasonably related businesses in the automotive industry.
"Representative" means NBD Bank or any successor or successors under
the Credit Agreement.
"Restricted Payment" means, with respect to any person, (a) the
declaration or payment of any dividend or other distribution in respect of
Equity Interests of such person or any parent or Subsidiary of such person, (b)
any payment on account of the purchase, redemption or other acquisition or
retirement for value of Equity Interests of such person or any Subsidiary or
parent of such person, (c) other than with the proceeds from the substantially
concurrent sale of, or in exchange for, Refinancing Indebtedness any purchase,
redemption, or other acquisition or retirement for value of, any payment in
respect of any amendment
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34
of the terms of or any defeasance of, any Subordinated Indebtedness, directly or
indirectly, by such person or a parent or Subsidiary of such person prior to the
scheduled maturity, any scheduled repayment of principal, or scheduled sinking
fund payment, as the case may be, of such Indebtedness, (d) any Investment by
such person, other than a Permitted Investment and (e) the payment of Excess
Compensation; provided, however, that the term "Restricted Payment" does not
include (i) any dividend, distribution or other payment on or with respect to
Equity Interests of an issuer to the extent payable solely in shares of
Qualified Capital Stock of such issuer (and in order to eliminate fractional
shares otherwise created thereby); or (ii) any dividend, distribution or other
payment to the Issuers, or to any of the Guarantors, by the Issuers or any of
their Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Securities" or "Notes" means, prior to the Exchange Offer, the
Original Notes, and after the Exchange Offer, the Original Notes (if any) and
the Series B Notes, in each case as amended or modified from time to time in
accordance with the terms hereof, issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Securities Custodian" means the Trustee, as custodian with respect
to the Securities in global form, or any successor entity thereto.
"Securityholder" See "Holder."
"Series B Notes" means the Series B 9 1/2% Senior Notes due 2005, in
substantially the form set forth on the Form of Note set forth as Exhibit A
hereto, to be issued pursuant to this Indenture in connection with the Exchange
Offer.
"Stated Maturity," when used with respect to any Note, means July 1,
2005.
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"Subordinated Indebtedness" means Indebtedness of an Issuer or a
Guarantor that is subordinated in right of payment to the Notes or Guarantees,
as applicable, in any respect.
"Subsidiary," with respect to any person, means (i) a corporation a
majority of whose Equity Interests with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such person, by such person and one or more Subsidiaries of such person or by
one or more Subsidiaries of such person, (ii) any other person (other than a
corporation) in which such person, one or more Subsidiaries of such person, or
such person and one or more Subsidiaries of such person, directly or indirectly,
at the date of determination thereof has at least majority ownership interest,
or (iii) a partnership in which such person or a Subsidiary of such person is,
at the time, a general partner. Notwithstanding the foregoing, an Unrestricted
Subsidiary shall not be a Subsidiary of the Trust or of any Subsidiary of the
Trust. Unless the context requires otherwise, Subsidiary means each direct and
indirect Subsidiary of the Trust.
"Tax Distribution Amount" means, in respect of any period after the
Issue Date during which the Trust is an entity described in Section 1361(a)(1),
1361(c)(2) or Section 1361(d) of the Code, an amount, described in good faith by
such Issuers' independent public accountants, which shall be a nationally
recognized accounting firm, equal to the sum of (x) the amount of intangibles
tax actually imposed on the Beneficiary of the Trust in respect of Trust Tax
Distributions for such period and (y) (a) the sum of the highest marginal
federal income tax rate and highest state and local income tax rate applicable
to the Beneficiary of the Trust on income of the Issuers which are S
Corporations for federal, state or local income tax purposes for such period,
expressed as a percentage, multiplied by (b) such Issuers' taxable income for
such period computed taking into account, without limitation, the deduction for
single business and franchise tax actually imposed on such Issuers; provided
that (i) the foregoing shall be determined by giving effect to the deduction of
relevant state and local income and intangibles taxes for purposes of
determining federal income taxes, such deduction to be computed based on the
state and local income tax rates applicable in clause (y)(a) hereof and the
amount of intangibles tax determined under clause (x) hereof, and (ii) the
foregoing shall
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be reduced by the amount of cumulative tax losses of such Issuers from any
previous period (to the extent not previously utilized in computing the Tax
Distribution Amounts) since the Closing Date and any investment tax credits and
other tax credits generated by such Issuers.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇.
77aaa-77bbbb) as in effect on the date of the execution of this Indenture,
except as permitted in Section 9.3.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth in Section 2.6.
"Trust" means (1) Venture Holdings Trust, a grantor trust organized
under the laws of the State of Michigan, (2) Venture Holdings Corporation after
the occurrence of a Trust Contribution or (3) any successor Person to Venture
Holdings Trust or Venture Holdings Corporation (after the occurrence of a Trust
Contribution) in accordance with the provisions of Article V.
"Trust Contribution" shall have the meaning specified in Section
5.1.
"Trust Tax Distributions" shall have the meaning provided in Section
4.3.
"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.
"Trust Officer" means any officer within the corporate trust
department (or any successor group) of the Trustee including any vice president,
assistant vice president, assistant secretary or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at that time shall be such officers, and also
means, with respect to a particular corporate trust matter, any other officer of
the corporate trust department (or any successor group) of the Trustee to whom
such trust matter is referred because of his knowledge of and familiarity with
the particular subject.
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"Unrestricted Subsidiary" means any subsidiary of the Trust that
does not own any Capital Stock of, or own or hold any Lien on any property of,
the Trust or any other Subsidiary of the Trust and that shall be designated an
Unrestricted Subsidiary by the Board of Directors of the Trust; provided that
(i) such subsidiary shall not engage, to any substantial extent, in any line or
lines of business activity other than a Related Business, (ii) neither
immediately prior thereto nor after giving pro forma effect to such designation
would there exist a Default or Event of Default and (iii) immediately after
giving effect thereto on a Pro Forma Basis, the Company could incur at least
$1.00 of Indebtedness pursuant to the Debt Incurrence Ratio contained in Section
4.10. The Board of Directors of the Trust may designate any Unrestricted
Subsidiary to be a Subsidiary, provided, that (i) no Default or Event of Default
is existing or will occur as a consequence thereof and (ii) immediately after
giving effect to such designation, on a Pro Forma Basis, the Trust could incur
at least $1.00 of Indebtedness pursuant to the Debt Incurrence Ratio contained
in Section 4.10. Each such designation shall be evidenced by filing with the
Trustee a certified copy of the resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. Government Obligations" means direct non-callable obligations
of, or noncallable 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.
"Venture Canada" means Venture Industries Canada Ltd.
"Venture Trust Instrument" means the Agreement, dated December 28,
1987, as amended, among ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as
Settlor, Beneficiary and Special Advisor, as such agreement may be amended in
accordance with the terms of the Indenture.
"wholly owned Subsidiary" means a Subsidiary all the Equity
Interests of which are owned by the Trust or one or more wholly owned
Subsidiaries of the Trust.
Section 2 Incorporation by Reference of TIA.
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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:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuers and any
other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them thereby.
Section 3 Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and
words in the plural include the singular;
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(v) provisions apply to successive events and
transactions;
(vi) "herein," "hereof" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(vii) references to Sections or Articles means
reference to such Section or Article in this Indenture, unless
stated otherwise.
ARTICLE II
THE SECURITIES
Section 1 Form and Dating.
The Securities and the Trustee's certificate of authentication, in
respect thereof, shall be substantially in the form of Exhibit A hereto which
Exhibit is part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Issuers shall
approve the form of the Securities and any notation, legend or endorsement on
them. Any such notations, legends or endorsements not contained in the form of
Security attached as Exhibit A hereto shall be delivered in writing to the
Trustee. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the form of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Issuers and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. The Securities are designated "Designated Senior Indebtedness" for all
purposes of the indenture governing the Issuers' 9-3/4% Senior Subordinated
Notes due 2004.
Section 2 Execution and Authentication.
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Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Securities for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless and the
Issuers shall nevertheless be bound by the terms of the Securities and this
Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security, but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate the Original Notes for original issue
in the aggregate principal amount of up to $205,000,000 and shall authenticate
Series B Notes for original issue in the aggregate principal amount of up to
$205,000,000, in each case upon a written order of the Issuers in the form of an
Officers' Certificate; provided that such Series B Notes shall be issuable only
upon the valid surrender for cancellation of Original Notes of a like aggregate
principal amount in accordance with the Registration Rights Agreement. The
Officers' Certificate shall specify the amount of Securities to be authenticated
and the date on which the Securities are to be authenticated. The aggregate
principal amount of Securities outstanding at any time may not exceed
$205,000,000, except as provided in Section 2.7. Upon the written order of the
Issuers in the form of an Officers' Certificate, the Trustee shall authenticate
Securities in substitution of Securities originally issued to reflect any name
change of either of the Issuers.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities 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 Issuers, any Affiliate of the Issuers
or any of their respective Subsidiaries.
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Securities shall be issuable only in fully registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
Section 3 Registrar and Paying Agent.
The Issuers shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
in the Borough of Manhattan, The City of New York where Securities may be
presented for payment ("Paying Agent") and an office or agency where notices and
demands to or upon the Issuers in respect of the Securities may be served. The
Issuers may act as Registrar or Paying Agent, except that, for the purposes of
Articles III, VIII, X and Section 4.13 neither Issuer nor any Affiliate thereof
shall act as Paying Agent. The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Issuers may have one or more
co-Registrars and one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent. The Issuers hereby initially appoint the
Trustee as Registrar and Paying Agent, and the Trustee hereby initially agrees
so to act.
The Issuers shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to such Agent. The Issuers shall
promptly notify the Trustee in writing of the name and address of any such
Agent. If the Issuers fail to maintain a Registrar or Paying Agent, the Trustee
shall act as such.
The Issuers initially appoint The Depository Trust Company ("DTC")
to act as Depository with respect to the Global Securities.
The Issuers initially appoint the Trustee to act as Securities
Custodian with respect to the Global Securities.
Section 4 Paying Agent to Hold Assets in Trust.
The Issuers shall require each Paying Agent other than the Trustee
to agree in writing that each Paying Agent shall hold
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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 (and Liquidated Damages, if
any) on, the Securities (whether such assets have been distributed to it by the
Issuers or any other obligor on the Securities), and shall notify the Trustee in
writing of any Default by the Issuers (or any other obligor on the Securities)
in making any such payment. If any Issuer or any Subsidiary thereof acts as
Paying Agent, it shall segregate such assets and hold them as a separate trust
fund for the benefit of the Holders or the Trustee. The Issuers 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 payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Issuers to the Paying Agent, the
Paying Agent (if other than either of the Issuers) shall have no further
liability for such assets.
Section 5 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Issuers shall furnish, or
cause to be furnished, to the Trustee on or before the third Business Day
preceding 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
reasonably may require of the names and addresses of Holders.
Section 6 Transfer and Exchange.
(a) When Definitive Securities are presented to the
Registrar or a co-Registrar with a request
(x) to register the transfer of such Definitive Securities
or
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(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
exchange:
(i) shall be duly endorsed or accompanied
by a written instrument of transfer in form reasonably
satisfactory to the Issuers and the Registrar or co-Registrar,
duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(ii) in the case of Transfer Restricted
Securities that are Definitive Securities, shall be
accompanied by the following additional information and
documents, as applicable:
(A) if such Transfer Restricted Securities are
being delivered to the Registrar by a Holder for registration
in the name of such Holder, without transfer, a certification
from such Holder to that effect (in substantially the form set
forth on the reverse of the Security); or
(B) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in accordance with Rule
144A under the Securities Act, a certification to that effect
(in the form set forth on the reverse of the Security); or
(C) if such Transfer Restricted Security is being
transferred (i) pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act, (ii)
outside the United States in a transaction meeting the
requirements of Rule
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904 under the Securities Act, (iii) pursuant to an effective
registration statement under the Securities Act, (iv) to an
"institutional accredited investor" within the meaning of Rule
501(A)(1), (2), (3) or (7) under the Securities Act that is
acquiring the Security for its own account, or for the account
of such an institutional accredited investor, in each case in
a minimum principal amount of $100,000, not with a view to or
for offer or sale in connection with any distribution in
violation of the Securities Act or (v) in reliance on another
exemption from the registration requirements of the Securities
Act, a certification to that effect (in the form set forth on
the reverse of the Security) and in the case of (iv) above a
transferee letter of representation in substantially the form
set forth in the Offering Memorandum and in the case of (i),
(ii), (iii) and (v) above, if the Issuers or the Trustee so
request, an Opinion of Counsel reasonably acceptable to the
Issuers and to the Trustee to the effect that such transfer is
in compliance with the Securities Act.
(b) Restrictions on Transfer of a Definitive
Security for a Beneficial Interest in a Global Security. A Definitive Security
may not be exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Registrar
of a Definitive Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Registrar, together with:
(i) if such Definitive Security is a
Transfer Restricted Security, a certification, substantially in the
form set forth on the reverse of the Security, that such Definitive
Security is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in accordance with Rule
144A under the Securities Act; and
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(ii) whether or not such Definitive
Security is a Transfer Restricted Security, written instructions
directing the Registrar to make, or to direct the Securities Custodian
to make, an endorsement on the Global Security to reflect an increase
in the aggregate principal amount of the Securities represented by the
Global Security,
then the Registrar shall cancel such Definitive Security and cause, or direct
the Securities Custodian to cause, in accordance with the standing instructions
and procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Securities are then outstanding, the
Issuers shall issue and the Trustee shall authenticate a new Global Security in
the appropriate principal amount.
(c) Transfer and Exchange of Global Securities.
The transfer and exchange of Global Securities or beneficial interests therein
shall be effected through the Depository, in accordance with this Indenture
(including the restrictions on transfer set forth herein) and the procedures of
the Depository therefor, all in accordance with the Securities Act.
(d) Transfer of a Beneficial Interest in a Global
Security for a Definitive Security.
(i) Any person having a beneficial
interest in a Global Security may upon request exchange such beneficial
interest for a Definitive Security. Upon receipt by the Trustee of
written instructions or such other form of instructions as is customary
for the Depository from the Depository or its nominee on behalf of any
Person having a beneficial interest in a Global Security and upon
receipt by the Trustee of a written order or such other form of
instructions as is customary for the Depository or the Person
designated by the Depository as having such a beneficial interest in a
Transfer Restricted Security only, the following additional information
and documents (all of which may be submitted by facsimile):
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(A) if such beneficial
interest is being transferred to the Person designated by the
Depository as being the beneficial owner, a certification from
such person to that effect (in substantially the form set
forth on the reverse of the Security); or
(B) if such beneficial
interest is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act, a
certification to that effect from the transferor (in the form
set forth on the reverse of the Security); or
(C) if such beneficial
interest is being transferred (i) pursuant to an exemption
from registration in accordance with Rule 144 under the
Securities Act, (ii) outside the United States in a
transaction meeting the requirements of Rule 904 under the
Securities Act, (iii) pursuant to an effective registration
statement under the Securities Act, (iv) to an "institutional
accredited investor" within the meaning of Rule 501(A)(1),
(2), (3) or (7) under the Securities Act that is acquiring the
security for its own account, or for the account of such an
institutional accredited investor, in each case in a minimum
principal amount of $100,000, not with a view to or for offer
or sale in connection with distribution in violation of the
Securities Act or (v) in reliance on another exemption from
the registration requirements of the Securities Act, a
certification to that effect from the trans- feree or
transferor (in the form set forth on the reverse of the
Security) and in the case of (iv) above a transferee letter of
representation in substantially the form set forth in the
Offering Memorandum and in the case of
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(i), (ii), (iii) and (v) above, if the Issuers or the Trustee
so requests, an Opinion of Counsel reasonably acceptable to
the Issuers and to the Trustee to the effect that such
transfer is in compliance with the Securities Act,
then the Registrar or the Securities Custodian, at the direction of the
Trustee, will cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities
Custodian, the aggregate principal amount of the Global Security to be
reduced and, following such reduction, the Company will execute and the
Trustee will authenticate and deliver to the transferee a Definitive
Security in the appropriate principal amount.
(ii) Definitive Securities issued in
exchange for a beneficial interest in a Global Security pursuant to
this Section 2.6(d) shall be registered in such names and in such
authorized denominations as the Depository, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct
the Trustee. The Registrar shall deliver such Definitive Securities to
the persons in whose names such Securities are so registered.
(e) Restrictions on Transfer and Exchange of
Global Securities. Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in subsection (f) of this Section 2.6), a Global
Security may not be transferred as a whole except by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Authentication of Definitive Securities in
Absence of Depository. If at any time:
(i) the Depository for the Securities
notifies the Issuers that the Depository is unwilling or unable to
continue as Depository for the Global
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Securities and a successor Depository for the Global Securities is not
appointed by the Issuers within 90 days after delivery of such notice; or
(ii) the Issuers, in their sole discretion,
notify the Trustee in writing that they elect to cause the issuance of
Definitive Securities under this Indenture,
then the Issuers will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Securities,
will authenticate and make available for delivery Definitive Securities, in an
aggregate principal amount equal to the principal amount of the Global
Securities, in exchange for such Global Securities.
(g) Legends. Each Security certificate evidencing
the Global Securities and the Definitive Securities (and all Securities issued
in exchange therefor or substitution thereof) shall bear a legend in
substantially the following form:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇
▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT
THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR
THE BENEFIT OF THE ISSUERS THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURI-
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TIES ACT, (d) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN
THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE NOTE FOR ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE HAVING A MINIMUM PURCHASE PRICE OF
$100,000 FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (IN THE CASE OF (d) UPON DELIVERY OF A TRANSFEREE LETTER
OF REPRESENTATION AND IN THE CASE OF (b), (c), (d) or (e) UPON
AN OPINION OF COUNSEL IF THE ISSUERS OR TRUSTEE SO REQUESTS),
(2) TO THE ISSUERS OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(h) Cancellation and/or Adjustment of Global
Security. At such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, redeemed, repurchased or
cancelled, such Global Security shall be returned to or retained and cancelled
by the Trustee. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for Definitive Securities, redeemed,
repurchased or cancelled, the principal amount of Securities represented by such
Global Security shall be reduced and an endorsement shall be made on such Global
Security, by the Trustee or the Securities Custodian, at the direction of the
Trustee, to reflect such reduction.
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(i) Obligations with respect to Transfers and
Exchanges of Definitive Securities.
(i) To permit registrations of transfers
and exchanges, the Issuers shall execute and the Trustee shall
authenticate Definitive Securities and Global Securities at the
Registrar's or co-Registrar's request.
(ii) No service charge shall be made
for any registration of transfer or exchange, but the Issuers may require
payment of a sum sufficient to cover any transfer tax, assessments, or
similar governmental charge payable in connection therewith (other than
any such transfer taxes, assessments, or similar governmental charge
payable upon exchanges or transfers pursuant to Section 2.2, 2.10, 3.5,
4.13, 9.5 or 10.1).
(iii) The Registrar or co-Registrar
shall not be required to register the transfer of or exchange of (a) any
Definitive Security selected for redemption in whole or in part pursuant
to Article III, except the unredeemed portion of any Definitive Security
being redeemed in part, or (b) any Security for a period beginning 15 days
before the mailing of a notice of an offer to repurchase pursuant to
Article X or Section 4.13 hereof or a notice of redemption of Securities
pursuant to Article III hereof and ending at the close of business on the
day of such mailing.
(iv) The Trustee shall have no obligation
or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable
law with respect to any transfer of any interest in any Security other
than to require delivery of such certificates and other documentation or
evidence as expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
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Section 7 Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if
the Holder of a Security claims and submits an affidavit and/or other evidence,
satisfactory to the Trustee and the Issuers, to the Trustee to the effect that
the Security has been lost, destroyed or wrongfully taken, the Issuers shall
issue and the Trustee shall authenticate a replacement Security if the Trustee's
requirements are met. If required by the Trustee or the Issuers, such Holder
must provide an indemnity bond or other indemnity, sufficient in the judgment of
both the Issuers and the Trustee, to protect the Issuers, the Trustee or any
Agent from any loss which any of them may suffer if a Security is replaced. The
Issuers and the Trustee may charge such Holder for their reasonable,
out-of-pocket expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Issuers.
Section 8 Outstanding Securities.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except those cancelled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Security effected by the Trustee hereunder and those described in this Section
2.8 as not outstanding. A Security does not cease to be outstanding because the
Issuers or an Affiliate of the Issuers holds the Security, except as provided in
Section 2.9.
If a Security is replaced pursuant to Section 2.7 (other than
a mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser, as defined under the New York Uniform
Commercial Code. A mutilated Security ceases to be outstanding upon surrender of
such Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Issuers or an Affiliate of the Issuers) holds cash sufficient to
pay all of the principal and interest (and Liquidated Damages, if any) due on
the Securities payable on
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that date and payment of the Securities called for redemption is not otherwise
prohibited, then on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue.
Section 9 Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, supplement,
waiver or consent, Securities owned by the Issuers, any Guarantor and Affiliates
of the Issuers or of any Guarantor shall be disregarded, except that, for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, amendment, supplement, waiver or consent, only Securities that a
Trust Officer of the Trustee actually knows are so owned shall be disregarded.
Section 10 Temporary Securities.
Until definitive Securities are ready for delivery, the
Issuers may prepare, the Guarantors shall endorse and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Issuers
reasonably and in good faith consider appropriate for temporary Securities.
Without unreasonable delay, the Issuers shall prepare, the Guarantors shall
endorse and the Trustee shall authenticate definitive Securities in exchange for
temporary Securities. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as permanent
Securities authenticated and delivered hereunder.
Section 11 Cancellation.
The Issuers at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent (other than the Issuers or an Affiliate of the Company), and no one else,
shall cancel and, at the written direction of the Issuers, shall dispose of all
Securities surrendered for transfer, exchange, payment or cancellation in
accordance with its
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customary procedures. Subject to Section 2.7, the Issuers may not issue new
Securities to replace Securities it has paid or delivered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section 2.11, except as expressly
permitted in the form of Securities and as permitted by this Indenture.
Section 12 Defaulted Interest.
If the Issuers default in a payment of interest (and
Liquidated Damages, if any) on the Securities, the Issuers shall pay the
defaulted interest (and Liquidated Damages, if any), plus (to the extent lawful)
interest on the defaulted interest (and Liquidated Damages, if any), to the
persons who are Holders on a Record Date (or at the Issuers' option a subsequent
special record date) which date shall be the fifteenth day next preceding the
date fixed by the Issuers for the payment of defaulted interest, whether or not
such day is a Business Day, unless the Trustee fixes another record date. At
least 15 days before the subsequent special record date, the Issuers 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
Liquidated Damages, if any), and interest payable on such defaulted interest
(and Liquidated Damages), if any, to be paid.
Section 13 CUSIP Numbers.
The Issuers in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Issuers will promptly notify
the Trustee of any change in the CUSIP numbers.
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ARTICLE III
REDEMPTION
Section 1 Right of Redemption.
Redemption of Securities shall be made only in accordance with
this Article III. At their election, the Issuers may redeem the Securities in
whole or in part, at any time or from time to time on or after July 1, 2001, at
the Redemption Prices specified under the caption "Redemption," in the Form of
Note attached as Exhibit A hereto, plus accrued but unpaid interest (and
Liquidated Damages, if any) to the Redemption Date. Except as provided in this
paragraph, the next following paragraph and paragraph 5 of the Notes, the Notes
may not otherwise be redeemed at the option of the Company.
Until July 1, 2000, upon a Public Equity Offering, up to 35%
aggregate principal amount of the Notes originally issued may be redeemed at the
option of the Issuers within 120 days of such Public Equity Offering, on not
less than 30 days, but not more than 60 days' notice to each Holder of the Notes
to be redeemed, with cash from the Net Cash Proceeds of such Public Equity
Offering, at 109.5% of principal (subject to the right of Holders of record on a
Record Date to receive interest due on an Interest Payment Date that is on or
prior to such Redemption Date), together with accrued but unpaid interest and
Liquidated Damages, if any, to the date of redemption; provided, however, that
immediately following such redemption not less than 65% aggregate principal
amount of the Notes originally issued are outstanding.
Section 2 Notices to Trustee.
If the Issuers elect to redeem Securities pursuant to this
Article III, they shall notify the Trustee in writing of the date on which the
Notes are to be redeemed ("Redemption Date") and the principal amount of
Securities to be redeemed and whether they want the Trustee to give notice of
redemption to the Holders in the name of and at the expense of the Issuers.
If the Issuers elect to reduce the principal amount of
Securities to be redeemed pursuant to Paragraph 5 of the Securi-
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ties by crediting against any such redemption Securities it has not previously
delivered to the Trustee for cancellation, it shall so notify the Trustee of the
amount of the reduction and deliver such Securities with such notice.
The Issuers shall give each notice to the Trustee provided for
in this Section 3.2 at least 45 days (unless a shorter period is acceptable to
the Trustee) before the Redemption Date.
Section 3 Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed pursuant
to Paragraph 5 thereof, the Trustee shall select from among such Securities to
be redeemed pro rata or by lot or by such other method as the Trustee shall
determine to be fair and appropriate and in such manner as complies with any
applicable legal and stock exchange requirements.
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly notify
the Issuers in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions (equal to $1,000
or any integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
Section 4 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Issuers shall mail a notice of redemption by first class mail, postage
prepaid, to each Holder whose Securities are to be redeemed, at such Holder's
last address as then shown on the registry books of the Registrar. At the
Issuers' request, the Trustee shall give the notice of redemption in the
Issuers' name and at the Issuers' expense. Each notice for redemption shall
identify the Securities to be redeemed and shall state:
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(1) the Redemption Date;
(2) the Redemption Price, including the amount of accrued
but unpaid interest (and Liquidated Damages, if any) to be paid upon such
redemption;
(3) the name, address and telephone number of the Paying
Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent at the address specified in such notice to
collect the Redemption Price;
(5) that, unless (a) the Issuers default in their
obligation to deposit cash with the Paying Agent in accordance with
Section 3.6 hereof, interest on Securities called for redemption ceases to
accrue on and after the Redemption Date and the only remaining right of
the Holders of such Securities is to receive payment of the Redemption
Price, including accrued but unpaid interest (and Liquidated Damages, if
any), upon surrender to the Paying Agent of the Securities called for
redemption and to be redeemed;
(6) if any Security is being redeemed in part, the
portion of the principal amount, equal to $1,000 or any integral multiple
thereof, of such Security to be redeemed and that, after the Redemption
Date, and upon surrender of such Security, a new Security or Securities in
aggregate principal amount equal to the unredeemed portion thereof will be
issued;
(7) if less than all the Securities are to be redeemed,
the identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of such Securities to
be redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption;
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(8) the CUSIP number of the Securities to be redeemed;
and
(9) that the notice is being sent pursuant to this
Section 3.4 and pursuant to the optional redemption provisions of
Paragraph 5 of the Securities.
Section 5 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.4, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price, including accrued but unpaid interest (and
Liquidated Damages, if any). Upon surrender to the Trustee or Paying Agent, such
Securities called for redemption shall be paid at the Redemption Price,
including interest (and Liquidated Damages, if any), if any, accrued to and
unpaid on the Redemption Date; provided that if the Redemption Date is after a
regular Record Date and on or prior to the Interest Payment Date, the accrued
interest (and Liquidated Damages, if any) shall be payable to the Holder of the
redeemed Securities registered on the relevant Record Date; and provided,
further, that if a Redemption Date is a Legal Holiday, payment shall be made on
the next succeeding Business Day and no interest shall accrue for the period
from such Redemption Date to such succeeding Business Day.
Section 6 Deposit of Redemption Price.
On or before the Redemption Date, the Issuers shall deposit
with the Paying Agent (other than the Issuers or an Affiliate of either of the
Issuers) cash sufficient to pay the Redemption Price of, including accrued but
unpaid interest on (and Liquidated Damages, if any), all Securities to be
redeemed on such Redemption Date (other than Securities or portions thereof
called for redemption on that date that have been delivered by the Issuers to
the Trustee for cancellation). The Paying Agent shall promptly return to the
Issuers any cash so deposited which is not required for that purpose upon the
written request of the Issuers.
If the Issuers comply with the preceding paragraph and the
other provisions of this Article III and payment of the
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Securities called for redemption is not otherwise prohibited, interest on the
Securities to be redeemed will cease to accrue on the applicable Redemption
Date, whether or not such Securities are presented for payment. Notwithstanding
anything herein to the contrary, if any Security surrendered for redemption in
the manner provided in the Securities shall not be so paid upon surrender for
redemption because of the failure of the Issuers to comply with the preceding
paragraph and the other provisions of this Article III, interest shall continue
to accrue and be paid from the Redemption Date until such payment is made on the
unpaid principal, and, to the extent lawful, on any interest not paid on such
unpaid principal, in each case at the rate and in the manner provided in Section
4.1 hereof and the Securities.
Section 7 Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part,
the Issuers shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge, a new Security or Securities equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
Section 1 Payment of Securities.
The Issuers shall pay in same day funds the principal of and
interest (and Liquidated Damages, if any) on the Securities on the dates and in
the manner provided in the Securities and this Indenture. An installment of
principal of or interest (and Liquidated Damages, if any) on the Securities
shall be considered paid on the date it is due if the Trustee or Paying Agent
(other than the Issuers or an Affiliate of either of the Issuers) holds for the
benefit of the Holders, on or before 10:00 a.m. New York City time on that date,
cash deposited and designated for and sufficient to pay the installment.
The Issuers shall pay interest on overdue principal and on
overdue installments of interest (and Liquidated Damages, if
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any) at the rate specified in the Securities compounded semi-annually, to the
extent lawful.
Notwithstanding the foregoing, each Issuer (other than the
Trust) and by its acceptance of a Security issued hereunder each Holder hereby
confirms that it is the intention of all such parties that the issuances of the
Notes by such Issuer not constitute a fraudulent transfer or conveyance for
purpose of any 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 such Issuers hereby
irrevocably agree that the obligations of such Issuers under the Notes shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Issuer and after giving effect to any
collections from or payments made by or on behalf of any other Issuers in
respect of the obligations of such other Issuer, result in the obligations of
such Issuer under such issuance of Notes not constituting such a fraudulent
transfer or conveyance.
Section 2 Maintenance of Office or Agency.
The Issuers and the Guarantors shall maintain in the Borough
of Manhattan, The City of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Issuers and the Guarantors in respect of the Securities and this Indenture
may be served (so long as the notice is also served pursuant to Section 12.2).
The Issuers and the Guarantors shall give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency. If at
any time the Issuers and the Guarantors 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 12.2.
The Issuers and the Guarantors may also from time to time
designate one or more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall
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in any manner relieve the Issuers and the Guarantors of their obligation to
maintain an office or agency in the Borough of Manhattan, The City of New York,
for such purposes. The Issuers and the Guarantors shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. The Issuers and the Guarantors
hereby initially designate the principal corporate trust office of the Trustee
as such office.
Section 3 Limitation on Restricted Payments.
The Issuers and the Guarantors shall not, and shall not permit
any of their Subsidiaries to directly or indirectly, make any Restricted Payment
if, after giving effect to such Restricted Payment on a pro forma basis, (1) a
Default or an Event of Default shall have occurred and be continuing, (2) the
Trust is not permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Debt Incurrence Ratio in Section 4.10 on a Pro Forma Basis or
(3) the aggregate amount of all Restricted Payments made by the Trust and its
Subsidiaries, including after giving effect to such proposed Restricted Payment,
from and after the Issue Date, would exceed the sum of (a) $10 million, plus (b)
50% of the aggregate Consolidated Net Income of the Trust and its Consolidated
Subsidiaries for the period (taken as one accounting period), commencing on the
first day of the first fiscal quarter ending after the Issue Date, to and
including the last day of the fiscal quarter ended immediately prior to the date
of each such calculation (or, in the event Consolidated Net Income for such
period is a deficit, then minus 100% of such deficit), plus (c) the aggregate
Net Cash Proceeds received by the Trust from a contribution by the holders of
its Capital Stock (other than by the Subsidiaries of the Trust) or the sale of
its Qualified Capital Stock (other than (i) to a Subsidiary of the Trust and
(ii) to the extent applied in connection with a Qualified Exchange), after the
Issue Date, plus (d) the Net Cash Proceeds from the sale of Investments by the
Issuers (other than Permitted Investments) made after the Issue Date, plus the
total Investments, net, without duplication, of any Indebtedness, in any
Unrestricted Subsidiaries designated Subsidiaries, provided that such amounts,
taken with all other amounts distributed on or realized from such Investments or
designations, does not exceed the original aggregate amount of such Investments.
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The immediately preceding paragraph, however, will not
prohibit:
(i) a Qualified Exchange;
(ii) the payment of any dividend or
distribution on Qualified Capital Stock within 60 days after the date
of its declaration if such dividend could have been made on the date of
such declaration in compliance with the foregoing provisions, provided
the full amount of any Restricted Payment made pursuant to clause (ii)
will be deducted, without duplication, in the calculation of the
aggregate amount of Restricted Payments available to be made referred
to in clause (3) of the immediately preceding paragraph; or
(iii) (a) so long as the Trust is an
entity described in Section 1361(a)(1), 1361(c)(2) or 1361(d) of the
Code or any similar provision of state or local law, (x) the Trust
shall be permitted to distribute to the Beneficiary of the Trust (or
pay compensation to the Beneficiary of the Trust in lieu of such
distributions) all amounts distributed to the Trust pursuant to the
following clause (y), and (y) the Issuers (other than the Trust) in the
aggregate shall be permitted to make payments to the Trust in cash as
follows, calculated before giving effect to such payments (such
payments to be referred to hereinafter as "Trust Tax Distributions"):
(1) on (or within 15 days prior to)
each April 15, June 15, September 15 and January 15 an amount equal to
the minimum federal and state estimated quarterly income and intangible
tax payments required to be made on such date by the Beneficiary of the
Trust in order to prevent underpayment of estimated income tax pursuant
to the rules set forth in Sections 6654(b) and 6654(d)(1) of the Code
or their successors or supplements and any similar provision of
applicable state income and intangible tax law for any state with
respect to which the Issuers qualify as S corporations for state law
purposes, such amount to be calculated as though such Beneficiary's
only income and loss in each
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such quarter was an amount equal to the sum of the taxable income
and loss of the Issuers which are S corporations. The foregoing
amounts may be paid so long as (I) such Issuer is and was an S
corporation for such quarter, as defined in Section 1361 of the Code
or its successors and supplements, (II) no Default or Event of
Default exists and is continuing or would thereby occur, (III)
special tax counsel to the Issuers delivers to the Trustee, prior to
the payment in respect of such quarter, an opinion substantially in
the form attached hereto as Exhibit C-1 (or, if the Beneficiary of
the Trust is disabled or unavailable as described in Section 3 of
the Venture Trust Instrument, such special tax counsel delivers to
the Trustee, prior to the payment in respect of such quarter, an
opinion substantially in the form attached hereto as Exhibit C-2),
(IV) the Issuers have not received a private ruling or a National
Office Technical Advice Memorandum from the Internal Revenue Service
or, in respect of distributions made for state income tax purposes,
a similar ruling from any applicable state or local taxing
authority, that the Trust is not an entity described in Section
1361(a)(1), 1361(c)(2) or 1361(d) of the Code, or their successors
and supplements, or any similar provision of state or local law or
there has been a final "determination" (as used in Section 1313 of
the Code) or similar state determination to the same effect, and (V)
the Issuers have complied with the terms of clauses (b), (c) and (d)
below. The amount that is distributable pursuant to clause (y) by
each Issuer which is an S corporation in respect of each of the
quarters described above shall be that proportion of the amount of
the Trust Tax Distribution for each such quarter which such Issuer's
Tax Income for such quarter bears to the aggregate Tax Income of all
the Issuers which are S corporations in such quarter. For purposes
of the foregoing, "Tax Income" shall mean one-quarter of an Issuer's
actual taxable income for the year prior to that with respect to
which the calculations described above are being made; and
(2) no later than September 15 of each year, the Issuers
shall cause their tax advisors,
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which shall be a nationally recognized accounting firm, to determine
the actual amount of federal and state income tax liability of the
Beneficiary of the Trust for the previous calendar year computed as
if the only income and loss of the Beneficiary in such year was an
amount equal to the sum of the taxable income and loss of the
Issuers which are S corporations (the "Actual Tax Amount"). The
computation of the Actual Tax Amount made by the Issuers' tax
advisors shall be reviewed and reported on by a nationally
recognized accounting firm, which may be the Issuers' tax advisors.
If (A) the Actual Tax Amount, as determined by such tax advisor, is
less than the aggregate estimated amounts paid pursuant to clause
(1) above in respect of such year (the "Distributed Amounts") and/or
(B) if the Actual Tax Amount is at any time finally determined by
the Internal Revenue Service or a court of competent jurisdiction to
be less than that determined by such tax advisors, the Issuers shall
cause the Beneficiary to the Trust, within 75 days after such
difference is determined, to reimburse to the Trust, with no
obligation on the part of the Trust to such Beneficiary with respect
to such reimbursement, the excess of the Distributed Amounts over
the Actual Tax Amount, as finally determined by the tax advisors,
the Internal Revenue Service or court of competent jurisdiction, as
the case may be, or the excess of the Actual Tax Amount, as
determined by the tax advisors, over the Actual Tax Amount as
determined by the Internal Revenue Service or court, as the case may
be (in either case, which excess amount may be offset by any amounts
then or subsequently owed to the Beneficiary by reason of clause (1)
above). If the excess of the Distributed Amounts over the Actual Tax
Amount, as finally determined by the tax advisors, is reimbursed to
the Trust after June 14 of such year, such excess shall bear
interest from June 15 to the date preceding the date it is paid at
an interest rate equal to the overpayment rate established under
Section 6621(a)(1) of the Code or its successor and supplements.
Such reimbursed amount (if any) shall then be reimbursed by the
Trust to each of the Issuers that first distributed such amounts to
the Trust. If the Actual Tax Amount, as determined by the tax
advi-
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sors, the Internal Revenue Service or court, as the case may be, is
greater than the Distributed Amounts, each of the Issuers which are
S corporations shall distribute to the Trust, and the Trust shall
distribute to the Beneficiary, its share of the excess of the Actual
Amount over the Distributed Amounts, within 75 days after such
difference is determined, provided that no such distribution shall
be made by any of the Issuers unless a nationally recognized
accounting firm shall have reviewed and reported on the computation
of the Actual Tax Amount made by the tax advisors, which may be the
same nationally recognized accounting firm that acts as the Issuers'
tax advisors. If any payment is made (i) in contravention of clause
(1) above and paid to the Beneficiary of the Trust pursuant to
clause (x) above or (ii) in contravention of the proviso to the
immediately preceding sentence and paid to the Beneficiary of the
Trust pursuant to the immediately preceding sentence, the Issuers
shall cause the Beneficiary of the Trust to reimburse to each of the
Issuers making such prohibited payment the amount of such prohibited
payment;
(b) in the event of the disability or unavailability
of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as provided in the Venture Trust Instrument if the Trust
remains a Trust (such date, an "S Trust Commencement Date"), (1) the Issuers
shall apply for a private ruling from the Internal Revenue Service to the effect
that each of the Issuers which was an S corporation immediately prior to such
disability or unavailability, as the case may be, qualifies, despite such
disability or unavailability, as an S corporation under Section 1361(a)(1) of
the Code and that the Trust is an entity described in Section 1361(c)(2) or
1361(d) of the Code, or their successors and supplements; (2) the Trust shall
not take any action that would cause it to have income (as defined in Section
643(b) of the Code, or its successors and supplements, and Act 340 of Michigan
Compiled Acts, 1965, or its successors and supplements, except for corporate
distributions provided for in such act), for any period beginning on the S Trust
Commencement Date and continuing for the duration of such disability or
unavailability in excess of the amount of cash the Trust would be permitted to
distribute in respect of its Equity Interests pursuant to this Section 4.3,
provided, however, that if the
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Trust shall have received a private letter ruling from the Internal Revenue
Service that it is an entity described in Section 1361(c)(2) of the Code, or its
successors and supplements, the foregoing limitation shall not apply for the
period such ruling is in effect; and (3) the Issuers shall notify the Trustee of
the occurrence of such S Trust Commencement Date no later than 10 days following
such date;
(c) if at any time the Issuers receive notification
from the Internal Revenue Service that any Issuer does not qualify as an S
corporation under Section 1361(a)(1) of the Code, (x) no further distributions
shall be made pursuant to clause (a)(1) above by such Issuer, and (y) the
Issuers shall cause the Beneficiary of the Trust either (A) to reimburse the
Trust all amounts paid by that Issuer pursuant to clause (a)(1) and clause
(a)(2) above with respect to all periods as to which that Issuer did not qualify
as an S corporation, with no obligation on the part of the Trust to such
Beneficiary with respect to such reimbursement, and the Trust shall then pay
such reimbursement to that Issuer, or (B) to reimburse such Issuer such payments
directly, within 75 days after such requirement for reimbursement is determined;
provided that no such reimbursement shall be required to the extent to which
such distribution would otherwise have been permitted, after taking into account
interest, penalties and additions to tax imposed on such Issuer as a result of
its failure to qualify as an S corporation under Section 1361(a)(1) of the Code,
or its successors and supplements. If the Issuers at any time receive
notification from the Internal Revenue Service that the Trust is not an entity
described in Section 1361(a)(1), 1361(c)(2) or 1361(d), or their successors and
supplements, as the case may be, of the Code, or if the Issuers fail to receive
a favorable response to a ruling request described in clause (b) within 360 days
after the disability or unavailability of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the Issuers shall
take the actions described in clauses (x) and (y) of the preceding sentence; and
(d) no Trust Tax Distribution may be made to the
extent such distribution would cause the aggregate cumulative amount of Trust
Tax Distributions to exceed the aggregate cumulative Tax Distribution Amounts
for periods completed since the date of the Indenture.
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Section 4 Corporate Existence.
The Issuers and the Guarantors shall do or cause to be done
all things necessary to preserve and keep in full force and effect their
corporate or other existence and the corporate or other existence of each of
their Subsidiaries in accordance with the respective organizational documents of
each of them and the rights (charter and statutory) and corporate franchises of
the Issuers and the Guarantors and each of their Subsidiaries; provided,
however, that neither the Issuers nor any of the Guarantors shall be required to
preserve, with respect to itself, any right or franchise, and with respect to
any of their Subsidiaries, any such existence, right or franchise, if (a) the
Board of Directors of the Trust shall determine reasonably and in good faith
that the preservation thereof is no longer desirable in the conduct of the
business of the Issuers and (b) the loss thereof is not disadvantageous in any
material respect to the Holders; provided, further, nothing in this Section 4.4
shall prohibit a merger or sale of assets not otherwise prohibited by this
Indenture.
Section 5 Payment of Taxes and Other Claims.
The Issuers and the Guarantors shall, and shall cause each of
their 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 Issuers, any Guarantor or any
of their Subsidiaries or properties and assets of the Issuers, any Guarantor or
any of their Subsidiaries and (ii) all lawful claims, whether for labor,
materials, supplies, services or anything else, which have become due and
payable and which by law have or may become a Lien upon the property and assets
of the Issuers, any Guarantor or any of their Subsidiaries; provided, however,
that neither the Issuers nor any Guarantor shall be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which disputed amounts adequate reserves have
been established in accordance with GAAP.
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Section 6 Compliance Certificate; Notice of Default.
(a) The Issuers shall deliver to the Trustee
within 120 days after the end of their fiscal year an Officers' Certificate, one
of the signers of which shall be the principal executive, financial or
accounting officer of the Issuers, complying (whether or not required) with
Section 314(a)(4) of the TIA and stating that a review of their activities and
the activities of their Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to determining
whether the Issuers have kept, observed, performed and fulfilled their
obligations (without regard to notice requirements or grace periods) under this
Indenture and further stating, as to each such Officer signing such certificate,
whether or not the signer knows of any failure by the Issuers, any Guarantor or
any Subsidiary of the Issuers or any Guarantor to comply with any conditions or
covenants in this Indenture and, if such signer does know of such a failure to
comply, the certificate shall describe such failure with particularity. The
Officers' Certificate shall also notify the Trustee should the relevant fiscal
year end on any date other than the current fiscal year end date.
(b) So long as not contrary to the then current
recommendation of the American Institute of Certified Public Accountants, the
Issuers shall deliver to the Trustee within 120 days after the end of each of
their fiscal years a written report of a firm of independent certified public
accountants with an established national reputation stating that in conducting
their audit for such fiscal year, nothing has come to their attention that
caused them to believe that the Issuers or any Subsidiary of the Issuers were
not in compliance with the provisions set forth in Section 4.3, 4.10 or 4.13 of
this Indenture.
(c) The Issuers shall, so long as any of the
Securities are outstanding, deliver to the Trustee, immediately upon becoming
aware of any Default or Event of Default under this Indenture, an Officers'
Certificate specifying such Default or Event of Default and what action the
Issuers are taking or propose to take with respect thereto. The Trustee shall
not be deemed to have knowledge of a Default or an Event of Default unless one
of its Trust Officers receives notice of the Default giving rise thereto from
the Issuers or any of the Holders.
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Section 7 Reports.
Whether or not the Trust is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Trust shall deliver
to the Trustee and to each Holder within 15 days after it is or would have been
(if it were subject to such reporting obligations) required to file such with
the Commission, annual and quarterly financial statements substantially
equivalent to financial statements that would have been included in reports
filed with the Commission, if the Trust were subject to the requirements of
Section 13 or 15(d) of the Exchange Act, including, with respect to annual
information only, a report thereon by the Trust's certified independent public
accountants as such would be required in such reports to the Commission, and, in
each case, a management's discussion and analysis of financial condition and
results of operations which would be so required. In addition, the Issuers have
agreed that, for so long as any Notes remain outstanding, from and after the
time the Trust files a registration statement with the Commission with respect
to the Notes, they will file such reports with the Commission, provided that the
Commission will accept such filing. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Issuers' compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
Section 8 Waiver of Stay, Extension or Usury Laws.
Each of the Issuers and 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 wherever enacted which
would prohibit or forgive the Issuers or any Guarantor from paying all or any
portion of the principal of or interest (and Liquidated Damages, if any) on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that they may lawfully do so) each of the Issuers
and each Guarantor hereby expressly waives all benefit or advan-
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tage of any such law insofar as such law applies to the Securities, and covenant
that it shall 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 9 Limitation on Transactions with Affiliates.
(a) The Issuers and Guarantors will not, and will
not permit any of their Subsidiaries to, on or after the Issue Date, enter into
any contract, agreement, arrangement or transaction with any Affiliate (an
"Affiliate Transaction"), or any series of related Affiliate Transactions (other
than Exempted Affiliate Transactions), (i) unless it is determined that the
terms of such Affiliate Transaction are fair and reasonable to the Issuer,
Guarantor or Subsidiary, and no less favorable to the Issuer, Guarantor or
Subsidiary than could have been obtained in an arm's-length transaction with a
non-Affiliate.
(b) The Issuers and Guarantors will not, and will
not permit any of their Subsidiaries to, enter into an Affiliate Transaction, or
any series of related Affiliate Transactions, unless (i) with respect to such
Transaction or Transactions involving or having a fair value of more than
$250,000 the Trust has (x) obtained the approval of majorities of the Board of
Directors of the Issuer, Guarantor or Subsidiary, as the case may be, or the
Trust in the case of Venture Canada, and the Fairness Committee of the Issuer,
Guarantor or Subsidiary, as the case may be, or the Trust in the case of Venture
Canada, in the exercise of their fiduciary duties and (y) either (1) obtained
the approval of majorities of the disinterested directors of the Issuer,
Guarantor or Subsidiary, as the case may be, or the Trust in the case of Venture
Canada, if any, and Independent members of the Fairness Committee or (2)
obtained an opinion of a qualified independent financial advisor to the effect
that such Transaction or Transactions are fair to the Issuer, Guarantor or
Subsidiary, as the case may be, from a financial point of view and (ii) with
respect to such Transaction or Transactions involving or having a fair value of
more than $3.0 million, the Trust has (x) obtained the approval of majorities of
the Board of Directors of the Issuer, Guarantor or Subsidiary, as the case may
be, or the Trust in the case of Venture Canada, and the Fairness Committee of
the Issuer, Guarantor or Subsidiary, as the case may be, or the Trust
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in the case of Venture Canada, in the exercise of their fiduciary duties,
including majorities of the disinterested directors of the Issuer, Guarantor or
Subsidiary, as the case may be, if any, and the Independent members of the
Fairness Committee, and (y) delivered to the Trustee an opinion of a qualified
independent financial advisor to the effect that such Transaction or
Transactions are fair to the Issuer, Guarantor or such Subsidiary, as the case
may be, from a financial point of view.
(c) Each Issuer and Guarantor and each of their
Subsidiaries (other than Venture Canada) will establish and maintain a Fairness
Committee, at least one of whose members shall be independent.
Section 10 Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital Stock.
Except (x) as set forth in this covenant or (y) by merger or
consolidation by and among or between any Issuer or Guarantor, the Issuers and
the Guarantors will not, and will not permit any of their Subsidiaries to,
directly or indirectly, issue, assume, guaranty, incur, become directly or
indirectly liable with respect to (including as a result of an Acquisition), or
otherwise become responsible for, contingently or otherwise (individually and
collectively, to "incur" or, as appropriate, an "incurrence"), any Indebtedness
(including Acquired Indebtedness) or any Disqualified Capital Stock other than
Permitted Indebtedness. Notwithstanding the foregoing, if (i) no Default or
Event of Default shall have occurred and be continuing at the time of, or would
occur after giving effect on a pro forma basis to, such incurrence of
Indebtedness or Disqualified Capital Stock and (ii) on the date of such
incurrence (the "Incurrence Date"), the Consolidated Coverage Ratio of the Trust
for the Reference Period immediately preceding the Incurrence Date, after giving
effect on a Pro Forma Basis to such incurrence of such Indebtedness or
Disqualified Capital Stock and the use of proceeds thereof, would be at least
2.0 to l (the "Debt Incurrence Ratio"), then the Trust may incur such
Indebtedness (including Acquired Indebtedness) or Disqualified Capital Stock the
Issuers (other than the Trust) and the Guarantors may incur such Indebtedness
(including Acquired Indebtedness) and any other Subsidiaries may incur Acquired
Indebtedness.
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Indebtedness or Disqualified Capital Stock of any person which
is outstanding at the time such person becomes a Subsidiary of the Trust
(including upon designation of any subsidiary or other person as a Subsidiary)
or is merged with or into or consolidated with the Trust or a Subsidiary of the
Trust shall be deemed to have been incurred at the time such person becomes such
a Subsidiary of the Trust or is merged with or into or consolidated with the
Trust or a Subsidiary of the Trust, as applicable, and such incurrence is
subject to the immediately preceding paragraph.
Accrual of interest, the accretion of accreted value and the
payment of interest in the form of additional Indebtedness will not be deemed to
be an incurrence of Indebtedness for purposes of this covenant.
For purposes of determining any particular amount of
Indebtedness under this covenant, guarantees, Liens, or obligations with respect
to letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included.
Section 11 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
The Issuers and the Guarantors will not, and will not permit
any of their Subsidiaries to, directly or indirectly, create, assume or suffer
to exist any consensual restriction on the ability of any Subsidiary of the
Trust to pay dividends or make other distributions to or on behalf of, or to pay
any obligation to or on behalf of, or otherwise to transfer assets or property
to or on behalf of, or make or pay loans or advances to or on behalf of, the
Trust or any Subsidiary of the Trust, except (a) restrictions imposed by the
Notes or the Indenture, (b) restrictions imposed by applicable law, (c) existing
restrictions under Indebtedness outstanding on the Issue Date specified on
Schedule I to the Indenture, (d) restrictions under any Acquired Indebtedness
not incurred in violation of the Indenture or any agreement relating to any
property, asset, or business acquired by the Trust or any of its Subsidiaries,
which restrictions in each case existed at the time of Acquisition, were not put
in place in connection with or in anticipation of such Acquisition and are not
applicable to any person, other than the person
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acquired, or to any property, asset or business, other than the property, assets
and business so acquired, (e) any such restriction or requirement imposed by
Indebtedness incurred under paragraph (b) of the definition of "Permitted
Indebtedness" provided such restriction or requirement is not materially less
favorable than that imposed by the Credit Agreement as of the Issue Date, (f)
restrictions with respect solely to a Subsidiary of the Trust imposed pursuant
to a binding agreement which has been entered into for the sale or disposition
of all or substantially all of the Equity Interests or assets of such
Subsidiary, provided such restrictions apply solely to the Equity Interests or
assets of such Subsidiary which are being sold, and (g) in connection with and
pursuant to permitted Refinancing Indebtedness, replacements of restrictions
imposed pursuant to clauses (a), (c) or (d) of this paragraph that are not
materially less favorable than those being replaced and do not apply to any
other person or assets than those that would have been covered by the
restrictions in the Indebtedness so refinanced. Notwithstanding the foregoing,
neither (a) customary provisions restricting subletting or assignment of any
lease entered into in the ordinary course of business, consistent with industry
practice, nor (b) Liens permitted under the terms of the Indenture on assets
securing the Indebtedness under the Credit Agreement incurred in accordance with
Section 4.10 shall in and of themselves be considered a restriction on the
ability of the applicable Subsidiary to transfer such agreement or assets, as
the case may be.
Section 12 Limitation on Liens Securing Indebtedness.
The Issuers and the Guarantors will not, and will not permit
any of their Subsidiaries to, create, incur, assume or suffer to exist any Lien
of any kind, other than Permitted Liens, upon any of their respective assets
owned on the date of the Indenture or upon any income or profits therefrom,
unless the Issuers or the Guarantors provide, and cause their Subsidiaries to
provide, concurrently therewith, that the Notes are equally and ratably so
secured, provided that, if such Indebtedness is Subordinated Indebtedness, the
Lien securing such Subordinated Indebtedness shall be subordinate and junior to
the Lien securing the Notes with the same relative priority as such Subordinated
Indebtedness shall have with respect to the Notes.
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Section 13 Limitation on Sale of Assets and Subsidiary
Stock.
The Issuers and the Guarantors will not, and will not permit
any of their Subsidiaries to, in one or a series of related transactions,
convey, sell, transfer, assign or otherwise dispose of, directly or indirectly,
any of its property, business or assets, including by merger or consolidation
(in the case of a Guarantor or a Subsidiary of an Issuer), and including any
sale or other transfer or issuance of any Equity Interests of any Subsidiary of
the Trust, whether by the Trust or a Subsidiary of either or through the
issuance, sale or transfer of Equity Interests by a Subsidiary of the Trust, and
including any sale and leaseback transaction, other than surrender of any
reverse split dollar insurance policy (any of the foregoing, an "Asset Sale"),
unless (1)(a) within 395 days after the date of such Asset Sale, the Net Cash
Proceeds therefrom (the "Asset Sale Offer Amount") are applied to the optional
redemption of the Notes in accordance with the terms of the Indenture or to the
repurchase of the Notes and any other Pari Passu Indebtedness which by its terms
requires such repurchase pursuant to an irrevocable, unconditional cash offer
(the "Asset Sale Offer") to repurchase Notes and such Pari Passu Indebtedness at
a purchase price of 100% of principal amount (the "Asset Sale Offer Price")
together with accrued and unpaid interest and Liquidated Damages, if any, to the
date of payment, made within 360 days of such Asset Sale or (b) within 360 days
following such Asset Sale, the Asset Sale Offer Amount is (i) invested (or
committed, pursuant to a binding commitment subject only to reasonable,
customary closing conditions, to be invested, and in fact is so invested, within
an additional 90 days) in assets and property (other than notes, bonds,
obligation and securities, except in connection with the acquisition of a wholly
owned Subsidiary) which in the good faith reasonable judgment of the Board of
Directors of the Trust will immediately constitute or be a part of a Related
Business of the Trust or such Subsidiary (if it continues to be a Subsidiary)
immediately following such transaction or (ii) used to permanently reduce the
amount of any Indebtedness permitted pursuant to paragraph (b) of the definition
"Permitted Indebtedness" (including that in the case of a revolver or similar
arrangement that makes credit available, such commitment is also permanently
reduced by such amount), or (c) the Asset Sale Offer Amount is applied in a
combination of (a) and (b), (2) at least
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85% of the total consideration received for such Asset Sale or series of related
Asset Sales consists of cash or Cash Equivalents, provided, however, that more
than 15% of the total consideration may consist of consideration other than cash
or Cash Equivalents if (A) the portion of such consideration that does not
consist of cash or Cash Equivalents consists of assets of a type ordinarily used
in the operation of a Related Business to be used by the Issuers or a Subsidiary
in the conduct of a Related Business, (B) the terms of such Asset Sale have been
approved by a majority of the members of the Board of Directors of the Trust and
(C) if the value of the assets being disposed of by the Issuers or such
Subsidiary in such transaction (as determined in good faith by such members of
the Board of Directors) is at least $3 million, the Board of Directors of the
Trust has received a written opinion of a nationally recognized investment
banking firm to the effect that such Asset Sale is fair, from a financial point
of view, to the Trust and the Trust has delivered a copy of such opinion to the
Trustee, (3) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect, on a pro forma
basis, to, such Asset Sale, and (4) the Board of Directors of the Trust
determines in good faith that the Trust or such Subsidiary, as applicable,
receives fair market value for such Asset Sale.
For purposes of this covenant, "Asset Sale" shall not include
a transaction or series of related transactions for which the Company or its
Subsidiaries receive aggregate consideration of less than $250,000.
An acquisition of Notes pursuant to an Asset Sale Offer may be
deferred until the accumulated Net Cash Proceeds from Asset Sales not applied to
the uses set forth in (1) above (the "Excess Proceeds") exceeds $5 million and
that each Asset Sale Offer shall remain open for 20 Business Days following its
commencement (the "Asset Sale Offer Period"). Upon expiration of the Asset Sale
Offer Period, the Trust shall apply the Asset Sale Offer Amount plus an amount
equal to accrued and unpaid interest and Liquidated Damages, if any, to the
purchase of all Notes and Pari Passu Indebtedness properly tendered (on a pro
rata basis if the Asset Sale Offer Amount is insufficient to purchase all Notes
and Pari Passu Indebtedness so tendered, such pro rata basis determined so that
the amount of Notes and Pari Passu Indebtedness purchased bears the same ratio
to each other that the total
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principal amount of Notes tendered bears to the total Pari Passu Indebtedness
tendered) at the Asset Sale Offer Price (together with accrued interest). To the
extent that the aggregate amount of Notes and Pari Passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the
Trust may use any remaining Net Cash Proceeds for general corporate purposes as
otherwise permitted by the Indenture and following each Asset Sale Offer the
Excess Proceeds amount shall be reset to zero. For purposes of (2) above, total
consideration received means the total consideration received for such Asset
Sale minus the amount of (a) Indebtedness which is not Subordinated Indebtedness
assumed by a transferee which assumption permanently reduces the amount of
Indebtedness outstanding on the Issue Date or permitted pursuant to paragraph
(b), (c) or (d) of the definition "Permitted Indebtedness" (including that in
the case of a revolver or similar arrangement that makes credit available, such
commitment is so reduced by such amount) and (b) property that within 60 days of
such Asset Sale is converted into cash or Cash Equivalents).
Notwithstanding the foregoing provisions of the prior
paragraph, the following actions shall not constitute Asset Sales:
(i) the Trust and its Subsidiaries may,
in the ordinary course of business, convey, sell, transfer, assign or
otherwise dispose of inventory acquired and held for resale in the
ordinary course of business;
(ii) the Trust and its Subsidiaries may
convey, sell, transfer, assign or otherwise dispose of assets in
accordance with Article V;
(iii) the Trust and its Subsidiaries
may sell or dispose of damaged, worn out or other obsolete property in
the ordinary course of business so long as such property is no longer
necessary for the proper conduct of the business of the Trust or such
Subsidiary, as applicable;
(iv) the Trust and its Subsidiaries may
convey, sell, transfer, assign or otherwise dispose of
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assets to the Trust or any of its other Subsidiaries; and
(v) the Trust may contribute all of the
Equity Interests of all Subsidiaries of the Trust (other than any
Equity Interests of the Subsidiary which is to receive such
contribution from the Trust) to Venture Holdings Corporation or other
successor to the Trust (a "Trust Contribution").
All Net Cash Proceeds from an Event of Loss shall be invested,
used for prepayment of Indebtedness, or used to repurchase Notes, all of the
foregoing within the periods and as otherwise provided above in clause 1(a) or
1(b) of the first paragraph of this covenant.
In addition to the foregoing, the Trust will not, and will not
permit any Subsidiary to, directly or indirectly make any Asset Sale of any of
the Equity Interests of any Subsidiary except:
(i) pursuant to an Asset Sale of all the
Equity Interests of such Subsidiary; or
(ii) pursuant to an Asset Sale of
shares of common stock with no preferences or special rights or
privileges and with no redemption or prepayment provisions, provided
that after such sale the Trust or its Subsidiaries own at least 50.1%
of the voting and economic interests of the Capital Stock of such
Subsidiary.
Notice of an Asset Sale Offer shall be sent, on or prior to
the commencement of the Asset Sale Offer, by first-class mail, by the Issuers to
each Holder at its registered address, with a copy to the Trustee. The Asset
Sale Offer shall remain open for at least 20 Business Days following its
commencement. The notice to the Holders shall contain all information,
instructions and materials required by applicable law or otherwise material to
such Holders' decision to tender Securities pursuant to the Asset Sale Offer.
The notice, which (to the extent consistent with this Indenture) shall govern
the terms of an Asset Sale Offer, shall state:
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(1) that the Asset Sale Offer is being made pursuant to
such notice and this Section 4.13;
(2) the Asset Sale Offer Amount, the Asset Sale Offer
Price (including the amount of accrued but unpaid interest (and
Liquidated Damages, if any)), and the date of purchase;
(3) that any Security or portion thereof not tendered or
accepted for payment will continue to accrue interest if interest is
then accruing;
(4) that, unless the Issuers default in depositing cash
with the Paying Agent (which may not for purposes of this Section
4.13, notwithstanding anything in this Indenture to the contrary, be
the Issuers or any of their Affiliates) in accordance with the last
paragraph of this Section 4.13, any Security, or portion thereof,
accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Asset Sale Purchase Date;
(5) that Holders electing to have a Security, or portion
thereof, purchased pursuant to an Asset Sale Offer will be required
to surrender their Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security completed,
to the Paying Agent (which may not for purposes of this Section
4.13, notwithstanding any other provision of this Indenture, be the
Issuers or any of their Affiliates) at the address specified in the
notice;
(6) that Holders will be entitled to withdraw their
elections, in whole or in part, if the Paying Agent receives, prior
to the expiration of the Asset Sale Offer, a facsimile transmission
or letter setting forth the name of the Holder, the principal amount
of the Securities the Holder is withdrawing and a statement
containing a facsimile signature and stating that such Holder is
withdrawing his elec-
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tion to have such principal amount of Securities purchased;
(7) that if Securities in a principal amount in excess of
the principal amount of Securities to be acquired pursuant to the
Asset Sale Offer are tendered and not withdrawn, the Issuers shall
purchase Securities on a pro rata basis with Pari Passu Indebtedness
(with such adjustments as may be deemed appropriate by the Issuers
so that only Securities in denominations of $1,000 or integral
multiples of $1,000 shall be acquired);
(8) that Holders whose Securities were purchased only in
part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; and
(9) the circumstances and relevant facts regarding such
Asset Sales.
The Issuers agree that any Asset Sale Offer shall be made in
compliance with all applicable laws, rules, and regulations, including, if
applicable, Regulation 14E of the Exchange Act and the rules and regulations
thereunder and all other applicable Federal and state securities laws. To the
extent that provisions of any securities laws or regulations conflict with the
terms hereof, the Trust shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations hereunder
by virtue thereof.
On or before the date of purchase, the Issuers shall (i)
accept for payment Securities or portions thereof properly tendered pursuant to
the Asset Sale Offer (on a pro rata basis if required pursuant to paragraph (7)
above), (ii) deposit with the Paying Agent cash sufficient to pay the Asset Sale
Offer Price for all Securities or portions thereof so accepted and (iii) deliver
to the Trustee Securities so accepted together with an Officers' Certificate
setting forth the Securities or portions thereof being purchased by the Issuers.
The Paying Agent shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the Asset Sale Offer Price for such
Securities, and the Trustee shall promptly authenticate and mail
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or deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Issuers to the Holder thereof. In
the event the Issuers shall have deposited cash in excess of the Asset Sale
Offer Price for all Securities or portions thereof validly tendered, such excess
shall be promptly returned to the Issuers.
Section 14 Limitation on Lines of Business.
The Issuers and Guarantors will not, and will not permit any
of their Subsidiaries to, directly or indirectly engage to any substantial
extent in any line or lines of business activity other than that which, in the
reasonable good faith judgment of the Board of Directors of the Trust, is a
Related Business.
Section 15 Limitation on Status as Investment Company.
None of the Trust, the Guarantors or any of their and its
Subsidiaries shall become required to be registered as an "investment company"
(as that term is defined in the Investment Company Act of 1940, as amended), or
otherwise become subject to regulation under the Investment Company Act.
Section 16 Future Subsidiary Guarantors.
All future Subsidiaries of the Issuers, other than Foreign
Subsidiaries, may, and after the Issuers' 9-3/4% Senior Subordinated Notes due
2004 are no longer outstanding shall, jointly and severally guarantee,
irrevocably and unconditionally, all principal, premium, if any, and interest
and Liquidated Damages, if any, on the Notes on a senior basis, all in
accordance with Article XI hereof.
Section 17 Payment for Consent.
None of the Issuers, the Guarantors or any of their
Subsidiaries shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of the Indenture, the Notes or the Guarantees unless
such consider-
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ation is offered to be paid or agreed to be paid to all Holders of the Notes who
so consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
Section 18 Corporate Opportunities.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ agrees pursuant to the Corporate Opportunity
Agreement for the benefit of the Holders of the Notes that if any corporate
opportunity, business opportunity, proposed transaction, acquisition,
disposition, participation, interest, or other opportunity to acquire an
interest in any business or prospect in the same business or in any business
reasonably related to the business of the Trust or any of its Subsidiaries or in
any machinery or equipment useful in the business of the Trust or any of its
Subsidiaries (a "Business Opportunity") comes to his attention or shall be made
available to him or any of his Affiliates, a complete and accurate description
of such Business Opportunity, including all of the terms and conditions thereof
and the identity of all other Persons involved in the Business Opportunity,
shall be promptly presented in writing to the Board of Directors of each of the
Issuers and the Fairness Committee of each of the Issuers and each Issuer shall
be entitled to pursue and take advantage of such Business Opportunity, either
directly or through a wholly owned Subsidiary, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall not,
nor shall any of his Affiliates (other than the Trust or any wholly owned
Subsidiary of the Trust), pursue or take advantage of a Business Opportunity
unless majorities of the Board of Directors of each of the Issuers and the
Fairness Committee of each of the Issuers (including majorities of each Issuer's
disinterested directors, if any, and Independent members of the Fairness
Committee) have determined that it is not in the interests of such Issuer to
pursue or take advantage of such Business Opportunity.
Notwithstanding the foregoing, Business Opportunities (1)
relating to the purchase of machinery and equipment or real estate and not
constituting a business within the meaning of Section 11.01(d) of Regulation S-X
of the Commission or (2) relating to the sale of goods and services by an
Affiliate in the ordinary course of business as conducted as of the Issue Date
shall not be subject to the Corporate Opportunity Agreement.
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Section 19 Limitation on Amendments to Agreements.
The Trust shall not permit to be amended, modified or changed
in any manner the Venture Trust Instrument except that the Trust may make
amendments, modifications or changes which individually or in the aggregate are
not adverse to the interests of the Holders of the Notes. Without limiting the
foregoing, amendments to the Venture Trust Instrument reasonably necessary to
conform to the requirements of Section 1361(c)(2) or 1361(d) of the Code, or
their successors or supplements, shall not be deemed adverse to the interests of
the Holders of the Notes. The Trust will not amend, modify or in any way alter
the Corporate Opportunity Agreement in any manner adverse to the Trust or any of
its Subsidiaries.
ARTICLE V
SUCCESSOR CORPORATION
Section 1 Limitation on Merger, Sale or Consolidation.
The Trust will not consolidate with or merge with or into
another person or sell, lease, convey or transfer all or substantially all of
its assets (computed on a consolidated basis), whether in a single transaction
or a series of related transactions, to another person or group of affiliated
persons or adopt a plan of liquidation, unless (i) either (a) the Trust is the
continuing entity or (b) the resulting, surviving or transferee entity or, in
the case of a plan of liquidation, the entity which receives the greatest value
from such plan of liquidation is a corporation organized under the laws of the
United States, any state thereof or the District of Columbia and expressly
assumes by supplemental indenture all of the obligations of the Trust in
connection with the Notes and the Indenture; (ii) no Default or Event of Default
shall exist or shall occur immediately after giving effect on a pro forma basis
to such transaction; (iii) immediately after giving effect to such transaction
on a pro forma basis, the Consolidated Net Worth of the consolidated surviving
or transferee entity or, in the case of a plan of liquidation, the entity which
receives the greatest value from such plan of liquidation is at least equal to
the Consolidated Net Worth of the Trust immediately prior to such transaction;
and
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(iv) immediately after giving effect to such transaction on a Pro Forma Basis,
the consolidated resulting, surviving or transferee entity or, in the case of a
plan of liquidation, the entity which receives the greatest value from such plan
of liquidation would immediately thereafter be permitted to incur at least $1.00
of additional Indebtedness pursuant to the Debt Incurrence Ratio set forth in
Section 4.10.
Notwithstanding anything contained in this Indenture to the
contrary, the Trust is permitted to contribute all of the Equity Interests of
the Subsidiaries then held by the Trust (other than the Equity Interests of the
Subsidiary which is to receive such contribution from the Trust) to Venture
Holdings Corporation or other successor to the Trust (a "Trust Contribution"),
provided that (A) any successor or surviving corporation is organized and
existing under the laws of the United States, any state thereof or the District
of Columbia, (B) such contribution or reorganization is not materially adverse
to Holders of the Notes; it being understood, however, that such contribution or
reorganization shall not be considered materially adverse to Holders of the
Notes solely because the successor or surviving corporation is subject to income
taxation as a corporate entity, (C) immediately after giving effect to such
transaction, no Default or Event of Default exists, (D) the actions comprising
such contribution or reorganization (e.g., the contribution of stock of the
Subsidiaries, or the issuance of stock of the corporation in exchange for assets
of or Equity Interests in the Trust or in exchange for stock of a corporation
holding such Equity Interests, or the merger or consolidation of such
corporations) will not themselves directly result in material income tax
liability to the successor or surviving corporation, (E) the successor or
surviving corporation has assumed all obligations of the Trust, pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee, under
the Notes and hereunder and (F) Holders of the Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such contribution or
reorganization and will be subject to federal income tax on the same amounts, in
the same manner, and at the same time as would have been the case if such
contribution or reorganization had not occurred. If the successor or surviving
corporation after a Trust Contribution is not a corporation described in Section
1361(a)(1) of the Code, the Trust's ability to make Trust Tax Distributions must
terminate prior to such contribution or
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reorganization (except with respect to tax distributions in respect of taxable
periods ending on or prior to the date such contribution or reorganization is
effective for relevant tax purposes), other than tax distributions in respect of
Beneficiaries' income tax liability that results from the actions comprising
such contribution or reorganization. The Trust shall deliver to the Trustee
prior to such contribution or reorganization an officers' certificate covering
clauses (A) through (F) and the preceding sentence of this paragraph, stating
that such contribution or reorganization and such supplemental indenture comply
with the Indenture, and an opinion of counsel covering clauses (A), (D), (E) and
(F) above and the preceding sentence of this paragraph.
Neither any Guarantor nor any Issuer (other than the Trust)
shall consolidate or merge with or into (whether or not such Guarantor or Issuer
is the surviving person) another person (other than an Issuer or Guarantor)
unless (i), subject to the provisions of Section 11.4, the person formed by or
surviving any such consolidation or merger (if other than such Guarantor or
Issuer) assumes all the obligations of such Guarantor or Issuer pursuant to a
supplemental indenture in form reasonably satisfactory to the Trustee, pursuant
to which such person shall unconditionally guarantee or assume, on a senior
basis, all of such Guarantor's or Issuer's obligations under the Indenture on
the terms set forth in the Indenture; and (ii) immediately before and
immediately after giving effect to such transaction on a pro forma basis, no
Default or Event of Default shall have occurred or be continuing, and, if there
is an incurrence of Indebtedness as a result of such transaction, no Default or
Event of Default shall have occurred on a Pro Forma Basis.
On or prior to the consummation of the proposed transaction,
the Company shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, conveyance, transfer, lease or disposition and such supplemental
indenture executed in connection therewith comply with this Indenture. The
Trustee shall be entitled to conclusively rely upon such Officers' Certificate
and Opinion of Counsel.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of all or substantially all of the
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properties and assets of one or more Subsidiaries, the Trust's interest in which
constitutes all or substantially all of the properties and assets of the Trust
shall be deemed to be the transfer of all or substantially all of the properties
and assets of the Trust.
Section 2 Successor Corporation Substituted.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Trust or consummation of a plan of
liquidation in accordance with the foregoing, the successor corporation formed
by such consolidation or into which the Trust is merged or to which such
transfer is made or, in the case of a plan of liquidation, the entity which
receives the greatest value from such plan of liquidation shall succeed to, and
be substituted for, and may exercise every right and power of, the Trust under
the Indenture with the same effect as if such successor corporation had been
named therein as an Issuer, and the Trust shall be released from the obligations
under the Notes and the Indenture except with respect to any obligations that
arise from, or are related to, such transaction.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 1 Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the failure by the Issuers to pay any installment of
interest or Liquidated Damages, if any, on the Notes as and when the same
becomes due and payable and the continuance of any such failure for 30
days,
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(2) the failure by the Issuers to pay all or any part of
the principal, or premium, if any, on the Notes when and as the same
becomes due and payable at maturity, redemption, by acceleration or
otherwise, including, without limitation, payment of the Change of Control
Purchase Price or the Asset Sale Offer Price, or otherwise,
(3) the failure by any Issuer, Guarantor or Subsidiary
to observe or perform any other covenant or agreement contained in the
Notes or the Indenture or by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to observe and perform any
covenant or agreement contained in the Corporate Opportunity Agreement
and the continuance of such failure for a period of the Trust and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Notes outstanding,
(4) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudicating any or all of the
Issuers or any of their Material Subsidiaries as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of any of
the Issuers or any of their Material Subsidiaries under any bankruptcy or
similar law, and such decree or order shall have continued undischarged
and unstayed for a period of 60 consecutive days; or a decree or order of
a court of competent jurisdiction, judgment appointing a receiver,
liquidator, trustee, or assignee in bankruptcy or insolvency for any of
the Issuers, any of their Material Subsidiaries, or any substantial part
of the property of any such person, or for the winding up or liquidation
of the affairs of any such person, shall have been entered, and such
decree, judgment, or order shall have remained in force undischarged and
unstayed for a period of 60 days;
(5) any of the Issuers or any of their Material
Subsidiaries shall institute proceedings to be adjudicated a voluntary
bankrupt, or shall consent to the filing of a bankruptcy proceeding
against
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it, or shall file a petition or answer or consent seeking reorganization
under any bankruptcy or similar law or similar statute, or shall consent
to the filing of any such petition, or shall consent to the appointment of
a Custodian, receiver, liquidator, trustee, or assignee in bankruptcy or
insolvency of it or any substantial part of its assets or property, or
shall make a general assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts as they become due;
(6) a default in Indebtedness of any Issuer, Guarantor
or any of their Subsidiaries with an aggregate principal amount in excess
of $5 million which is either a default in payment of principal or as a
result of which the maturity of such Indebtedness has been accelerated
prior to its stated maturity,
(7) final unsatisfied judgments not covered by insurance
aggregating in excess of $5 million, at any one time rendered against any
Issuer, Guarantor or any of their Subsidiaries and not stayed, bonded or
discharged within 60 days, and
(8) any Guarantee shall for any reason cease to be, or
be asserted in writing by any Material Subsidiary or any Issuer not to be,
in full force and effect, enforceable in accordance with its terms, except
to the extent contemplated by the Indenture.
Section 2 Acceleration of Maturity Date; Rescission and
Annulment.
If an Event of Default occurs and is continuing (other than an
Event of Default specified in clauses (4) and (5), above, relating to the
Issuers or any Material Subsidiary), then in every such case, unless the
principal of all of the Notes shall have already become due and payable, either
the Trustee or the Holders of 25% in aggregate principal amount of the Notes
then outstanding, by notice in writing to the Trust (and to the Trustee if given
by Holders) (an "Acceleration Notice"), may declare all principal and premium,
if any, determined as set
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forth below, and accrued interest and Liquidated Damages, if any thereon to be
due and payable immediately. If an Event of Default specified in clauses (4) and
(5) above, relating to the Trust or any Material Subsidiary occurs, all
principal and premium, if any, and accrued interest and Liquidated Damages, if
any, thereon will be immediately due and payable on all outstanding Notes
without any declaration or other act on the part of the Trustee or the Holders.
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 Issuers
with the principal intention of avoiding payment of the premium that the Issuers
would have had to pay if the Issuers then had elected to redeem the Notes
pursuant to the optional redemption provisions of the Indenture, an equivalent
premium shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes. If an Event of Default
occurs prior to July 1, 2001 by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Issuers with the principal intention of
avoiding the prohibition on redemption of the Notes prior to July 1, 2001, then
the premium below (expressed as a percentage principal amount) for each of the
years beginning on July 1, shall also become immediately due and payable to the
extent permitted by law upon the acceleration of the Notes.
Year Percentage
---- ----------
1997 114.250%
1998 111.875%
1999 109.500%
2000 107.125%
At any time after such a declaration of acceleration being
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article VI, the Holders
of a majority in aggregate principal amount of then outstanding Securities, by
written notice to the Issuers and the Trustee, may rescind, on behalf of all
Holders, any such declaration of acceleration if:
(1) the Issuers have paid or deposited with the Trustee a
sum sufficient to pay
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(A) all overdue interest (and Liquidated Damages,
if any) on all Securities,
(B) the principal of (and premium, if any,
applicable to) any Securities which would become due otherwise
than by such declaration of acceleration, and interest thereon
at the rate borne by the Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest (and Liquidated
Damages, if any) at the rate borne by the Securities,
(D) all sums paid or advanced by the Trustee
hereunder and the compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and
(2) all Events of Default, other than the non-payment of
amounts which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 6.12.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective for any Event of Default or event which with notice or lapse of time
or both would be an Event of Default with respect to any covenant or provision
which cannot be modified or amended without the consent of the Holder of each
outstanding Security, unless all such affected Holders agree, in writing, to
waive such Event of Default or other event. No such waiver shall cure or waive
any subsequent default or impair any right consequent thereon.
Section 3 Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Issuers covenant that if an Event of Default in payment of
principal, premium, or interest (and Liquidated
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Damages, if any) specified in Section 6.1(1) or (2) occurs and is continuing,
the Issuers shall, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, premium (if any) and interest (and Liquidated Damages,
if any), and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest (and Liquidated Damages, if any), at the rate borne by the
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including compensation to, and
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Issuers fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust in favor
of the Holders, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Issuers or any other obligor upon
the Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Issuers or any other obligor
upon the Securities, wherever situated.
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 by such appropriate judicial proceedings as the Trustee shall
deem most effective to protect and enforce any such rights, 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 to enforce any other proper remedy.
Section 4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Issuers or any other obligor upon the
Securities or the property of the Issuers or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declara-
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tion or otherwise and irrespective of whether the Trustee shall have made any
demand on the Issuers for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise to take
any and all actions under the TIA, including
(i) to file and prove a claim for the
whole amount of principal (and premium, if any) and interest (and
Liquidated Damages, if any) owing and unpaid in respect of the
Securities and to file such 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 agent and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys
or other property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment, or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 5 Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee
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without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust in favor of the
Holders, and any recovery of judgment shall, after provision for the payment of
compensation to, and expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
Section 6 Priorities.
Any money collected by the Trustee pursuant to this Article VI
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium (if any) or interest (and Liquidated Damages, if any), upon presentation
of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due
pursuant to Section 7.7;
SECOND: To the Holders in payment of the amounts then due and
unpaid for principal of, premium (if any) and interest (and Liquidated Damages,
if any) on, the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal,
premium (if any) and interest (and Liquidated Damages, if any), respectively;
and
THIRD: To whomsoever may be lawfully entitled thereto, the
remainder, if any.
Section 7 Limitation on Suits.
No Holder of any Security shall have any right to order or
direct the Trustee to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
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(A) such Holder has
previously given written notice to the Trustee of a continuing
Event of Default;
(B) the Holders of not
less than 25% in principal amount of then outstanding
Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(C) such Holder or Holders
have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities to be
incurred or reasonably probable to be incurred in compliance
with such request;
(D) the Trustee for 60
days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(E) no direction
inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 8 Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision of this Indenture, the
Holder of any Security shall have the right, which is abso-
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lute and unconditional, to receive payment of the principal of, and premium (if
any) and interest (and Liquidated Damages, if any) on, such Security on the
Maturity Dates or Interest Payment Dates, as applicable, of such payments as
expressed in such Security (in the case of redemption, the Redemption Price on
the Redemption Date; in the case of a Change of Control, the Change of Control
Purchase Price, on the Change of Control Purchase Date; and in the case of an
Asset Sale, the Asset Sale Offer Price on the relevant purchase date); and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder (except such Holder's right
to payment under Article X and Section 4.13 may only be impaired in the event of
a waiver pursuant to Article IX by Holders of not less than a majority in
aggregate principal amount of Securities outstanding).
Section 9 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, 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 10 Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any Holder of any
Security to exercise any right or remedy arising upon any Event of Default shall
impair the exercise of any such right or remedy or constitute a waiver of any
such Event of Default. Every right and remedy given by this Article VI or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
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Section 11 Control by Holders.
The Holder or Holders of a majority in aggregate principal
amount of then outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred upon the Trustee, provided,
that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part in
such direction, and
(3) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
Section 12 Waiver of Past Default.
Subject to Section 6.8, the Holder or Holders of not less than
a majority in aggregate principal amount of the outstanding Securities may, by
written notice to the Trustee on behalf of all Holders, prior to the declaration
of the maturity of the Securities, waive any past default hereunder and its
consequences, except a default
(A) in the payment of
the principal of, premium, if any, or interest (and Liquidated
Damages, if any) on, any Security as specified in clauses (1)
and (2) of Section 6.1, or
(B) in respect of a
covenant or provision hereof which, under Article IX, cannot
be modified or amended without the consent of the Holder of
each outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed
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to have been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or impair the exercise of any
right arising therefrom.
Section 13 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, 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, suffered or omitted to be taken by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section 6.13 shall not
apply to any suit instituted by the Issuers, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the outstanding
Securities, or to any suit instituted by any Holder for enforcement of the
payment of principal of, or premium (if any) or interest (and Liquidated
Damages, if any) on, any Security on or after the Maturity Date of such
Security.
Section 14 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Issuers, the Guarantors, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
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ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
Section 1 Duties of Trustee.
(a) If a Default or 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 their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default or
an Event of Default:
(1) The Trustee need perform only those duties
as are specifically set forth in this Indenture and no others, and
no covenants or obligations shall be implied in or read into this
Indenture which are adverse to the Trustee.
(2) In the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, 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:
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(i) This paragraph does not limit the
effect of subsection (b) of this Section 7.1.
(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.
(iii) The Trustee shall not be liable
with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.12.
(d) No provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or to take or omit
to take any action under this Indenture or at the request, order or direction of
the Holders 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.
(e) Every provision of this Indenture that in any
way relates to the Trustee is subject to subsections (a), (b), (c) and (d) of
this Section 7.1.
(f) The Trustee shall not be liable for interest
on any assets received by it except as the Trustee may agree in writing with the
Issuers. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
Section 2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may conclusively 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.
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(b) Before the Trustee acts or refrains from
acting, it may consult with counsel of its selection and may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to Sections
12.4 and 12.5. 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 it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers.
(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) Except with respect to Section 4.1, the
Trustee shall have no duty to inquire as to the performance of the Issuers'
covenants in Article IV hereof. In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Sections 6.1(1), 6.1(2) and 4.1, or (ii) any
Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
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Section 3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Issuers, any
Guarantor, any of their respective Subsidiaries, 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 4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities and it shall not be accountable for
the Issuers' use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities (other than the Trustee's
certificate of authentication) or for the use or application of any funds
received by a Paying Agent other than the Trustee.
Section 5 Notice of Default.
If a Default or an Event of Default occurs and is continuing
and if it is actually known to the Trustee, the Trustee shall mail to each
Securityholder 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 (or premium, if any) of, or
interest (and Liquidated Damages, if any) on, any Security (including the
payment of the Change of Control Purchase Price on the Change of Control
Purchase Date, the Redemption Price on the Redemption Date, and the Asset Sale
Offer Price on the relevant purchase date), the Trustee may withhold the notice
if and so long as a Trust Officer in good faith determines that withholding the
notice is in the interest of the Securityholders.
Section 6 Reports by Trustee to Holders.
If required by law, within 60 days after each January 31
beginning with the January 31 following the date of this Indenture, the Trustee
shall mail to each Securityholder a brief report dated as of such January 31
that complies with TIA
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ss. 313(a). If required by law, the Trustee also shall comply with TIA ▇▇.▇▇.
313(b) and 313(c).
The Issuers shall promptly notify the Trustee in writing if
the Securities become listed on any stock exchange or automatic quotation
system.
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Issuers and filed with the SEC and each
stock exchange, if any, on which the Securities are listed.
Section 7 Compensation and Indemnity.
The Issuers shall pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Issuers and the Trustee
for its services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuers shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it. Such expenses shall include, except where such expense
arose from negligence, bad faith or willful misconduct of the Trustee and each
of its officers, directors, employees, attorneys-in-fact and agents, the
reasonable compensation, disbursements, fees and expenses of the Trustee's
agents, accountants, experts and counsel.
The Issuers shall indemnify the Trustee (in its capacity as
Trustee, Registrar and Paying Agent) and each of its officers, directors,
employees, attorneys-in-fact and agents for, and hold it harmless against, any
claims, loss, damage, demand, fee, expense (including but not limited to
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel), loss or liability incurred by them without negligence, bad faith or
willful misconduct on its part, arising out of or in connection with the
acceptance or administration of this trust and their rights or duties hereunder
including the reasonable costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Trustee shall notify the Issuers promptly of any
claim asserted against the Trustee for which it may seek indemnity. The Issuers
shall defend the claim and the Trustee shall provide reasonable cooperation at
the Issuers'
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expense in the defense. The Trustee may have separate counsel and the Issuers
shall pay the reasonable fees and expenses of such counsel; provided, that the
Issuers will not be required to pay such fees and expenses if they assume the
Trustee's defense and there is no conflict of interest between the Issuers and
the Trustee in connection with such defense. The Issuers need not pay for any
settlement made without their written consent. The Issuers 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 Issuers' payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal and premium, if any, of or interest (and Liquidated
Damages, if any) on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Issuers' obligations under this Section 7.7 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Issuers' obligations pursuant to Article VIII of this Indenture
and any rejection or termination of this Indenture under any Bankruptcy Law.
Section 8 Replacement of Trustee.
The Trustee may resign by so notifying the Issuers in writing.
The Holder or Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Issuers and the Trustee in
writing and may appoint a successor trustee with the Issuers' consent. The
Issuers may remove the Trustee if:
(1) the Trustee fails to comply with Section
7.10;
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(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver, Custodian, or other public officer
takes charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Issuers shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holder or Holders of a majority in principal amount of the Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Issuers.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Immediately after that
and provided that all sums owing to the Trustee provided for in Section 7.7 have
been paid, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided in Section 7.7,
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 Holder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuers or the Holder or Holders of at least 10% in principal amount of the
outstanding Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
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Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
Section 9 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, 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 10 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA
ss. 310(a)(1) and TIA ss. 310(a)(5). The Trustee shall have a combined capital
and surplus of at least $25,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA ss. 310(b).
Section 11 Preferential Collection of Claims against
Issuers.
The Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 1 Option to Effect Legal Defeasance or Covenant
Defeasance.
The Issuers may, at their option at any time, elect to have
Section 8.2 or Section 8.3 applied to all outstanding Securities upon compliance
with the conditions set forth below in this Article VIII.
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Section 2 Legal Defeasance and Discharge.
Upon the Issuers' exercise under Section 8.1 of the option
applicable to this Section 8.2, the Issuers and the Guarantors shall be deemed
to have been discharged from their respective obligations with respect to all
outstanding Securities on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance
means that the Issuers shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 8.5 and the other
Sections of this Indenture referred to in (a), (b) and (c) below, and to have
satisfied all their other obligations under such Securities and this Indenture
(and the Trustee, on demand of and at the expense of the Issuers, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) rights of
Holders to receive payments in respect of the principal of, premium, if any, and
interest on such Notes when such payments are due from the trust funds; (b) the
Issuers' obligations with respect to such Notes concerning issuing temporary
Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes, and
the maintenance of an office or agency for payment and money for security
payments held in trust; (c) the rights, powers, trust, duties, and immunities of
the Trustee, and the Issuers' obligations in connection therewith; and (d) this
Article VIII. Subject to compliance with this Article VIII, the Issuers may
exercise their option under this Section 8.2 notwithstanding the prior exercise
of their option under Section 8.3 with respect to the Securities.
Section 3 Covenant Defeasance.
Upon the Issuers' exercise under Section 8.1 of the option
applicable to this Section 8.3, the Issuers shall be released from their
obligations under the covenants contained in Sections 4.3, 4.6, 4.7, 4.9, 4.10,
4.11, 4.12, 4.13, 4.14, 4.16, 4.18 and 4.19, Article V and Article X with
respect to the outstanding Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "Covenant Defeasance"), and the
Securities shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration
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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 Securities, the Issuers need not 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, but, except as
specified above, the remainder of this Indenture and such Securities shall be
unaffected thereby. In addition, upon the Company's exercise under Section 8.1
of the option applicable to this Section 8.3, Sections 6.1(3), 6.1(6), 6.1(7)
and 6.1(8) shall not constitute Events of Default.
Section 4 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 8.2 or Section 8.3 to the outstanding Securities:
(a) The Issuers shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 who shall agree to comply with the provisions of
this Article VIII applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, and such
Holders must have a valid, perfected, exclusive security interest in such trust
(a) cash in an amount, or (b) 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 day before the due date of any
payment, cash in an amount, or (c) a combination thereof, in such amounts, as in
each case 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 and discharge the principal of, premium, if
any, and interest (and Liquidated Damages, if any) on the outstanding Securities
on the Stated Maturity or on the applicable Redemption Date, as the case may be,
of such principal or installment of principal, premium, if any, or interest (and
Liquidated Damages,
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if any); provided that the Trustee shall have been irrevocably instructed to
apply such cash and the proceeds of such U.S. Government Obligations to said
payments with respect to the Securities.
(b) In the case of an election under Section 8.2,
the Issuers shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably satisfactory to the Trustee confirming that (i) the
Issuers have received from, or there has been published by, the Internal Revenue
Service a ruling or (ii) since the date hereof, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the outstanding
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such Legal Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance has not occurred;
(c) In the case of an election under Section 8.3,
the Issuers shall have delivered to the Trustee an Opinion of Counsel in the
United States to the effect that the Holders of the outstanding Securities will
not recognize income, gain or loss for Federal income tax purposes as a result
of such Covenant Defeasance and will be subject to Federal income tax in the
same amount, 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 with respect
to the Securities shall occur and be continuing on the date of such deposit or,
in so far as Section 6.1(4) or 6.1(5) is concerned, 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 any other material agreement or instrument to which either of
the Issuers or any of their Subsidiaries is a party or by which either of the
Issuers or any of their Subsidiaries is bound;
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(f) In the case of an election under either
Section 8.2 or 8.3, the Issuers shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Issuers pursuant to its
election under Section 8.2 or 8.3 was not made by the Issuers with the intent of
preferring the Holders over other creditors of the Issuers or with the intent of
defeating, hindering, delaying or defrauding creditors of the Issuers or others;
(g) The Issuers shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel in the United States,
each stating that the conditions precedent provided for, in the case of the
Officers' Certificate, in subsections (a) through (f) of this Section 8.4 and,
in the case of the Opinion of Counsel, subsections (a) (with respect to the
validity and perfection of the security interest), (b), (c) and (e) of this
Section 8.4 have been complied with as contemplated by this Section 8.4.
Section 5 Deposited Cash and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.6, all cash and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 in respect of the outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal, premium, if any, and interest (and Liquidated Damages, if any),
but such money need not be segregated from other funds except to the extent
required by law.
The Issuers shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 8.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of outstanding Securities.
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Section 6 Repayment to Issuers.
Anything in this Article VIII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuers from time to time upon the
request of the Issuers any cash or U.S. Government Obligations held by it as
provided in Section 8.4 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereto
delivered to the Trustee (which may be the opinion delivered under Section
8.4(a)), are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
For all purposes of this Indenture, any money deposited with
the Trustee or any Paying Agent, or then held by the Issuers, in trust for the
payment of the principal of, premium, if any, or interest (and Liquidated
Damages, if any) on any Security and remaining unclaimed for two years after
such principal, and premium, if any, or interest (and Liquidated Damages, if
any) has become due and payable shall be paid to the Issuers on their request;
and the Holder of such Security shall thereafter look only to the Issuers for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money 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 Issuers 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 Issuers.
Section 7 Reinstatement.
(a) If the Trustee or Paying Agent is unable to
apply any cash or U.S. Government Obligations in accordance with Section 8.2 or
8.3, 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 Issuers' obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.2 or 8.3 until such time as the Trustee or
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Paying Agent is permitted to apply such money in accordance with Section 8.2 and
8.3, as the case may be; provided, however, that, if the Issuers make any
payment of principal of, premium, if any, or interest (and Liquidated Damages,
if any) on any Security following the reinstatement of its obligations, the
Issuers shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the Cash held by the Trustee or Paying Agent.
(b) If the cash or U.S. Government Obligations
are insufficient to pay, in accordance with Section 8.2 or 8.3, as the case may
be, the principal of premium, if any, and interest (and Liquidated Damages, if
any) on the Notes when due, then the Issuers' obligations under this Indenture
and the Securities shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.2 or 8.3; provided, however, the Issuers will
have five Business Days after notice of the same from the Trustee to make up
such insufficiency before the Indenture will be revived.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder, the Issuers or any
Guarantor, when authorized by Board Resolutions, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect, or
inconsistency, or to make any other provisions with respect to matters
or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such action
pursuant to this clause (1) shall not adversely affect the interests of
any Holder in any respect;
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(2) to add to the covenants of the Issuers for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Issuers or to make any other change that does not
adversely affect the rights of any Holder; provided, that the Issuers have
delivered to the Trustee an Opinion of Counsel stating that such change
does not adversely affect the rights of any Holder;
(3) to provide for Guarantors of the Securities;
(4) to evidence the succession of another person to any
of the Issuers, and the assumption by any such successor of the
obligations of such Issuer, herein and in the Securities in accordance
with Article V; or
(5) to comply with the TIA.
Section 2 Amendments, Supplemental Indentures and Waivers
with Consent of Holders.
Subject to Section 6.8 and the last sentence of this
paragraph, with the consent of the Holders of not less than a majority in
aggregate principal amount of then outstanding Securities, by written act of
said Holders delivered to the Issuers and the Trustee, the Issuers and any
Guarantor, when authorized by Board Resolutions, and the Trustee may amend or
supplement this Indenture or the Securities or enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
the Securities or of modifying in any manner the rights of the Holders under the
this Indenture or the Securities. Subject to Section 6.8 and the last sentence
of this paragraph, the Holder or Holders of a majority, in principal amount of
then outstanding Securities may waive compliance by the Issuers or any Guarantor
with any provision of this Indenture or the Securities. Notwithstanding the
foregoing provisions of this Section 9.2, without the consent of each Holder
affected thereby, no such amendment, supplemental indenture or waiver shall:
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(1) reduce the percentage of principal amount of
Securities whose Holders must consent to an amendment, supplement or
waiver of any provision of this Indenture or the Securities;
(2) reduce the rate or extend the time for payment of
interest (and Liquidated Damages, if any) on any Security;
(3) reduce the principal amount of any Security, or
reduce the Change of Control Purchase Price or the Asset Sale Offer Price;
(4) change the Stated Maturity of any Security;
(5) alter the redemption provisions of Article III in a
manner adverse to any Holder;
(6) make any changes in the provisions concerning waivers
of Defaults or Events of Default by Holders of the Securities (except to
increase any percentage of Securities required to consent to a waiver or
to provide that certain other provisions of the Indenture cannot be
modified or waived without the consent of the Holder of each outstanding
Security affected thereby) or the rights of Holders to recover the
principal or premium of, interest (and Liquidated Damages, if any) on, or
redemption payment with respect to, any Security;
(7) make any changes in Section 6.8, 6.12 or this third
sentence of this Section 9.2;
(8) make the principal of, or the interest (and
Liquidated Damages, if any) on, any Security payable with anything or at
anywhere other than as provided for in this Indenture and the Securities
as in effect on the date hereof; or
(9) make the Securities or Guarantees subordinated in
right of payment to any extent or under any circumstances to any other
indebtedness.
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It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Issuers shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuers to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
After an amendment, supplement or waiver under this Section
9.2 or 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under
this Article IX, the Issuers may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
Section 3 Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
Section 4 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 Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of his Security by written notice to
the Issuers or the person designated by the Issuers as the person to whom
consents should be sent if such revocation is received by the Issuers or such
person before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
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The Issuers may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be the date so fixed by
the Issuers notwithstanding the provisions of the TIA. 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, and only those
persons (or their duly designated proxies), 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 (1) through (9) of Section 9.2, in which case, the amendment, supplement
or waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided, that any such
waiver shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest (and Liquidated Damages, if any) on a
Security, (except such Holder's right to payment under Article X and Section
4.13 may only be impaired in the event of a waiver pursuant to Article IX by
Holders of not less than a majority in aggregate principal amount of Securities
outstanding).
Section 5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee or require the Holder to put an appropriate notation on the
Security. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Issuers or
the Trustee so determines, the Issuers in exchange for the Security shall issue,
the Guarantors shall endorse and the Trustee shall authenticate a new Security
that reflects the changed terms. Any failure to make the appropriate notation or
to issue a new Security shall not affect the validity of such amendment,
supplement or waiver.
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Section 6 Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX, provided, that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and Opinion of Counsel
stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article IX is authorized or permitted by this Indenture.
ARTICLE X
RIGHT TO REQUIRE ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ of Securities at Option of the Holder
upon Change of Control.
(a) In the event that a Change of Control has
occurred, each Holder of Notes will have the right, at such Holder's option,
subject to the terms and conditions of this Indenture, to require the Issuers to
repurchase all or any part of such Holder's Notes (provided, that the principal
amount of such Notes must be $1,000 or an integral multiple thereof) on a date
(the "Change of Control Purchase Date") that is no later than 55 Business Days
after the occurrence of such Change of Control, at a cash price equal to 101% of
the principal amount thereof (the "Change of Control Purchase Price"), together
with accrued and unpaid interest and Liquidated Damages, if any, to the Change
of Control Purchase Date.
(b) In the event that, pursuant to this Section
10.1, the Issuers shall be required to commence an offer to purchase Notes (a
"Change of Control Offer"), the Issuers shall follow the procedures set forth in
this Section 10.1 as follows:
(1) the Change of Control Offer shall commence
within 20 Business Days following the Change of Control and shall remain
open for at least 20
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Business Days following its commencement (the "Change of Control Period");
(2) upon expiration of the Change of Control
Period, the Issuers shall promptly purchase all of the Securities properly
tendered at the Change of Control Purchase Price, plus accrued interest
(and Liquidated Damages, if any);
(3) if the Change of Control Purchase Date is on
or after an interest payment record date and on or before the related
interest payment date, any accrued interest (and Liquidated Damages, if
any) will be paid to the Person in whose name a Security is registered at
the close of business on such record date, and no additional interest will
be payable to Securityholders who tender Securities pursuant to the Change
of Control Offer;
(4) the Issuers shall use their best efforts to
provide the Trustee with notice of the Change of Control Offer at least 5
Business Days before the commencement of any Change of Control Offer; and
(5) on or before the commencement of any Change of
Control Offer, the Issuers or the Trustee (upon the request and at the
expense of the Issuers) shall send, by first-class mail, a notice to each
of the Securityholders, which (to the extent consistent with this
Indenture) shall govern the terms of the Change of Control Offer and shall
state:
(i) that the Change of Control Offer is being
made pursuant to this Section 10.1 and that all Securities, or
portions thereof, tendered will be accepted for payment;
(ii) the Change of Control Purchase Price
(including the amount of accrued but unpaid interest (and
Liquidated Damages, if any)) and the Change of Control
Purchase Date;
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(iii) that any Security, or portion thereof, not
tendered or accepted for payment will continue to accrue
interest;
(iv) that, unless the Issuers default in
depositing cash with the Paying Agent in accordance with the
last paragraph of this subsection (b), or such payment is
prevented for any reason, any Security, or portion thereof,
accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control
Purchase Date;
(v) that Holders electing to have a Security,
or portion thereof, purchased pursuant to a Change of Control
Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, to the Paying Agent (which
may not for purposes of this Section 10.1, notwithstanding
anything in this Indenture to the contrary, be the Issuers or
any Affiliate of either of the Issuers) at the address
specified in the notice prior to the expiration of the Change
of Control Offer;
(vi) that Holders will be entitled to withdraw
their election, in whole or in part, if the Paying Agent
receives, prior to the expiration of the Change of Control
Offer, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Securities the
Holder is withdrawing and a statement containing a facsimile
signature and stating that such Holder is withdrawing his
election to have such principal amount of Securities
purchased; and
(vii) a brief description of the events
resulting in such Change of Control Triggering Event.
Any Change of Control Offer will be made in compliance with
all applicable laws, rules and regulations, including, if
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applicable, Regulation 14E under the Exchange Act and the rules thereunder and
all other applicable Federal and state securities laws. To the extent that the
provisions of any securities laws or regulations conflict with the terms hereof,
the Issuers shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached their obligations hereunder or the Notes by
virtue thereof.
On or before the Change of Control Purchase Date, the Issuers
will (i) accept for payment Notes or portions thereof properly tendered pursuant
to the Change of Control Offer, (ii) deposit with the Paying Agent cash
sufficient to pay the Change of Control Purchase Price (together with accrued
and unpaid interest and Liquidated Damages, if any) of all Notes so tendered and
(iii) deliver to the Trustee Notes so accepted together with an Officers'
Certificate listing the Notes or portions thereof being purchased by the
Issuers. The Paying Agent promptly will pay the Holders of Notes so accepted an
amount equal to the Change of Control Purchase Price (together with accrued and
unpaid interest), and the Trustee promptly will authenticate and deliver to such
Holders a new Note equal in principal amount to any unpurchased portion of the
Note surrendered. Any Notes not so accepted will be delivered promptly by the
Issuers to the Holder thereof. The Issuers publicly will announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Purchase Date. In the event the Issuers shall have deposited cash in
excess of the Change of Control Purchase Price for all Securities or portions
thereof validly tendered, such excess shall be promptly returned to the Issuers.
ARTICLE XI
GUARANTEES
Section 1 Guarantees.
(a) Upon the acquisition by the Issuers or any
Guarantor of the Capital Stock of any person, if, as a result of such
acquisition, such Person becomes a Subsidiary, such Subsidiary (other than
Foreign Subsidiaries) may, and after the Company's 9-3/4% Senior Subordinated
Notes due 2004 are no longer outstanding, shall irrevocably and unconditionally
guarantee,
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jointly and severally, on a senior unsecured basis (the "Guarantee") to each
Holder of a Security authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Securities or the obligations of the
Issuers under this Indenture or the Securities, that: (w) the principal and
premium (if any) of and interest (and Liquidated Damages, if any) on the
Securities will be paid in full when due, whether at the maturity or interest
payment date, by acceleration, call for redemption, upon an Change of Control
Offer, an Asset Sale Offer or otherwise; (x) all other obligations of the
Issuers to the Holders or the Trustee under this Indenture or the Securities
will be promptly paid in full or performed, all in accordance with the terms of
this Indenture and the Securities; and (y) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations, they will
be 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 Offer to Purchase or otherwise. Failing payment when due of any amount
so guaranteed for whatever reason, each Guarantor shall be obligated to pay the
same before failure so to pay becomes an Event of Default.
Within 10 days of the date of such Acquisition, such
Subsidiary, if it becomes a Guarantor, shall execute and deliver to the Trustee
a supplemental indenture making such Subsidiary a party to this Indenture.
(b) Each Guarantor shall agree by supplemental
indenture that its obligations with regard to this Guarantee shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities or this Indenture, the absence of any action to enforce the same, the
recovery of any judgment against the Issuers, any action to enforce the same or
any other circumstances that might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Guarantor shall waive diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuers, any right to require a proceeding first
against the Issuers or right to require the prior disposition of the assets of
the Issuers to meet its obligations, protest, notice and all demands whatsoever
and covenant that the Guarantee will not be
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discharged except by complete performance of the obligations contained in the
Securities and this Indenture.
(c) If any Holder or the Trustee is required by
any court or otherwise to return to either the Issuers or any Guarantor, or any
Custodian, Trustee, or similar official acting in relation to either the Issuers
or such Guarantor, any amount paid by either the Issuers or such Guarantor to
the Trustee or such Holder, the Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Guarantor shall agree by
supplemental indenture that it will not be entitled to any right of subrogation
in relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor shall agree
that, as between such Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (i) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Section 6.2 for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration as to the Issuers of the obligations guaranteed hereby, and
(ii) in the event of any declaration of acceleration of those obligations as
provided in Section 6.2, those obligations (whether or not due and payable) will
forthwith become due and payable by such Guarantor for the purpose of this
Guarantee.
(d) Each Guarantor shall confirm, and by its
acceptance of a Security issued hereunder each Holder hereby confirms, that it
is the intention of all such parties that the guarantee by such Guarantor set
forth in Section 11.1(a) not constitute a fraudulent transfer or conveyance for
purpose of any 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 irrevocably agree, and such
Guarantor shall agree that the obligations of such Guarantor under its guarantee
set forth in Section 11.1(a) 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 the following paragraph of this
Section 11.1(d), result in the obligations of such Guarantor under such
guarantee not constituting such a fraudulent transfer or conveyance.
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Each Guarantor that makes any payment or distribution under
Section 11.1(a) shall be entitled to a contribution from each other Guarantor
equal to its Pro Rata amount of such payment or distribution so long as the
exercise of such right does not impair the rights of the Holders under the
Guarantees. For purposes of the foregoing, the "Pro Rata amount" of any
Guarantor means the percentage of the net assets of all Guarantors held by such
Guarantor, determined in accordance with GAAP.
Section 2 Execution and Delivery of Guarantee.
To evidence its Guarantee set forth in Section 11.1, a
notation of such Guarantee substantially in the form annexed hereto as Exhibit B
shall be endorsed on each Security authenticated and delivered by the Trustee
issued after such Guarantee, and a supplemental indenture to this Indenture
shall be executed on behalf of such Guarantor by two Officers or an Officer and
a Secretary by manual or facsimile signature.
Each Guarantor shall agree that its Guarantee set forth in
Section 11.1 shall remain in full force and effect and apply to all the
Securities notwithstanding any failure to endorse on each Security a notation of
such Guarantee.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security on which a
Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of each Guarantor.
Section 3 Certain Bankruptcy Events.
Each Guarantor shall covenant and agree by supplemental
indenture that in the event of the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Issuers, such Guarantor shall not file (or
join in any filing of), or otherwise seek to participate in the filing of, any
motion or request seeking to stay or to prohibit (even temporarily) execution on
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the Guarantee and hereby waives and agrees not to take the benefit of any such
stay of execution, whether under Section 362 or 105 of the United States
Bankruptcy Code or otherwise.
Section 4 Release of Guarantors and Certain Issuers.
Notwithstanding Article V, upon the sale or disposition
(whether by merger, stock purchase, asset sale or otherwise) of a Guarantor or
Issuer (other than the Trust) of all or substantially all of its assets to an
entity which is not a Guarantor or Issuer or the designation of a Subsidiary to
become an Unrestricted Subsidiary, which transaction is otherwise in compliance
with the Indenture (including, without limitation, the provisions of Section
4.13), such Guarantor or Issuer will be deemed released from its obligations
under its Guarantee of the Notes or the Notes, as the case may be; provided,
however, that any such termination shall occur only to the extent that all
obligations of such Guarantor or Issuer under all of its guarantees of, and
under all of its pledges of assets or other security interests which secure, any
Indebtedness of the Trust or any other Subsidiary shall also terminate upon
such, sale, disposition or designation.
ARTICLE XII
MISCELLANEOUS
Section 1 TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of the TIA, the imposed duties,
upon qualification of this Indenture under the TIA, shall control.
Section 2 Notices.
Any notices or other communications to the Issuers, the
Guarantors or the Trustee required or permitted hereunder shall be in writing,
and shall be sufficiently given if made by hand delivery, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
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if to the Issuers or any Guarantor:
VENTURE HOLDINGS TRUST
33662 ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
The Huntington National Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Issuers, the Guarantors or the Trustee by notice to each
other party may designate additional or different addresses as shall be
furnished in writing by such party. Any notice or communication to the Issuers,
the Guarantors or the Trustee shall be deemed to have been given or made as of
the date so delivered, if personally delivered; when receipt is acknowledged, if
telecopied; and 5 Business Days after mailing if sent by registered or certified
mail, postage prepaid (except that a notice of change of address shall not be
deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall
be mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
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Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders.
Section 3 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Issuers, the Guarantors, the Trustee, the Registrar and any
other person shall have the protection of TIA ss. 312(c).
Section 4 Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Issuers to the Trustee
to take any action under this Indenture, the Issuers shall furnish to the
Trustee:
(1) an Officers' Certificate (in form and substance
reasonably satisfactory to the Trustee) stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (in form and substance
reasonably satisfactory to the Trustee) stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
Section 5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person
making such certificate or opinion has read such covenant or
condition;
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(2) a brief statement as to the
nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion
of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether or
not, in the opinion of each such person, such condition or covenant has
been complied with; provided, however, that with respect to matters of
fact an Opinion of Counsel may rely on an Officers' Certificate or
certificates of public officials.
Section 6 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
Section 7 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
in New York, New York, 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 8 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL 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. THE ISSUERS AND EACH GUARANTOR HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
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SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE
SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE ISSUERS
AND EACH GUARANTOR IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH THEY MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE ISSUERS OR ANY GUARANTOR IN ANY
OTHER JURISDICTION.
Section 9 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of any of the Issuers, the Guarantors or any of their
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 10 No Recourse Against Others.
Neither the trustee, grantor, Beneficiaries or special
advisors to the Trust, nor any direct or indirect shareholder, employee,
director, officer or agent, (including independent members of the Fairness
Committee) of the Issuers and the Subsidiaries shall have any personal liability
in respect of the obligations of the Issuers and the Subsidiaries under the
Indenture, the Notes or the Guarantees by reason of his, her or its status as
such. Each Holder of a Security by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Securities.
Section 11 Successors.
All agreements of the Issuers and the Guarantors in this
Indenture and the Securities shall bind their successors. All agreements of the
Trustee in this Indenture shall bind its successors.
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Section 12 Duplicate Originals.
All parties may sign any number of copies or counterparts of
this Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
Section 13 Severability.
In case any one or more of the provisions in this Indenture or
in the Securities 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 14 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of
the Articles and the Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms or provisions hereof.
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SIGNATURE
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
VENTURE HOLDINGS TRUST
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
VEMCO INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
VEMCO LEASING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
VENTURE INDUSTRIES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
128
VENTURE HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
VENTURE LEASING COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
VENTURE MOLD & ENGINEERING
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
VENTURE SERVICE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
THE HUNTINGTON NATIONAL BANK, as
Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
129
Schedule I
RESTRICTIONS ON DIVIDENDS
1. 9 3/4% Senior Subordinated Note Indenture as in effect on the date
of the Indenture to which this Schedule is attached.
2. Credit Agreement as in effect on the date of the Indenture to which
this Schedule is attached.
130
EXHIBIT A
[FORM OF NOTE]
VENTURE HOLDINGS TRUST
9 1/2% SENIOR NOTES
DUE 2005
Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred except as a
whole by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("▇▇▇"), to the Issuers or their agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.1
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇
▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT
THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES
FOR THE BENEFIT OF
--------
1 This paragraph should only be added if the Security is issued in
global form.
A-1
131
THE ISSUERS THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL ACCREDITED
INVESTOR WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE NOTE FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE HAVING A MINIMUM OF AT LEAST
$100,000 FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (IN THE CASE OF (d) UPON DELIVERY OF A TRANSFEREE LETTER
OF REPRESENTATION AND IN THE CASE OF (b), (c), (d) OR (e) UPON
AN OPINION OF COUNSEL IF THE ISSUERS OR TRUSTEE SO REQUESTS),
(2) TO THE ISSUERS OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
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CUSIP NO.______
No. $
Venture Holdings Trust, a grantor trust organized under the
laws of Michigan (the "Trust"), Vemco, Inc., Vemco Leasing, Inc., Venture
Industries Corporation, Venture Holdings Corporation, Venture Leasing Company,
Venture Mold & Engineering Corporation and Venture Service Company, each a
Michigan Corporation (each an "Issuer" and, together with the Trust, the
"Issuers"), for value received, hereby promise, jointly and severally, to pay to
_____, or registered assigns, the principal sum of _____ Dollars, on July 1,
2005.
Interest Payment Dates: January 1 and July 1.
Record Dates: December 15 and June 15.
Reference is made to the further provisions of this Security
on the reverse side, which will, for all purposes, have the same effect as if
set forth at this place.
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IN WITNESS WHEREOF, the Issuers have caused this Instrument to
be duly executed under its corporate seal.
VENTURE HOLDINGS TRUST
By:
--------------------------------
Name:
Title:
Attest:
------------------
VEMCO NC.
By:
--------------------------------
Name:
Title:
Attest:
------------------
VEMCO LEASING, INC.
By:
--------------------------------
Name:
Title:
Attest:
------------------
VENTURE INDUSTRIES CORPORATION
By:
--------------------------------
Name:
Title:
Attest:
------------------
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VENTURE HOLDINGS CORPORATION
By:
--------------------------------
Name:
Title:
Attest
------------------
VENTURE LEASING COMPANY
By:
--------------------------------
Name:
Title:
Attest:
------------------
VENTURE MOLD & ENGINEERING
CORPORATION
By:
--------------------------------
Name:
Title:
Attest:
------------------
VENTURE SERVICE COMPANY
By:
--------------------------------
Name:
Title:
Attest:
------------------
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned
Indenture.
Dated:
-----------------------------------,
As Trustee
By:
---------------------------------
Authorized Signatory
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VENTURE HOLDINGS TRUST
9 1/2% SENIOR NOTES
DUE 2005
1. Interest.
Venture Holdings Trust, a grantor trust organized under the laws of
Michigan (the "Trust"), Vemco, Inc., Vemco Leasing, Inc., Venture Industries
Corporation, Venture Holdings Corporation, Venture Leasing Company, Venture Mold
& Engineering Corporation and Venture Service Company, each a Michigan
Corporation (each an "Issuer" and, together with the Trust, the "Issuers"),
jointly and severally, promise to pay interest on the principal amount of this
Security at a rate of 9 1/2% per annum. To the extent it is lawful, the Issuers
promise to pay interest on any interest payment due but unpaid on such principal
amount at a rate of 9 1/2% per annum compounded semi-annually.
The Issuers will pay interest semi-annually on January 1 and July 1
of each year (each, an "Interest Payment Date"), commencing January 1, 1998.
Interest on the Securities will accrue from the most recent date to which
interest has been paid on the Securities pursuant to the Indenture or, if no
interest has been paid, from July 9, 1997. Interest will be computed on the
basis of a 360-day year consisting of twelve 30-day months.
2. Method of Payment.
The Issuers shall pay interest (and Liquidated Damages, if any) on
the Securities (except defaulted interest) to the persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. Except as provided below, the Issuers shall pay
principal and interest (and Liquidated Damages, if any) in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for payment of public and private debts ("Cash"). The Securities will be payable
as to principal,
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premium and interest (and Liquidated Damages, if any) at the office or agency of
the Issuers maintained for such purpose within the City and State of New York
or, at the option of the Issuers, payment of principal, premium and interest
(and Liquidated Damages, if any) may be made by check mailed to the Holders at
their addresses set forth in the register of Holders, and provided that payment
by wire transfer of immediately available funds will be required with respect to
principal of and interest (and Liquidated Damages, if any) and premium on all
Global Securities and all other Securities the Holders of which shall have
provided written wire transfer instructions to the Issuers and the Paying Agent.
3. Paying Agent and Registrar.
Initially, The Huntington National Bank (the "Trustee") will act as
Paying Agent and Registrar. The Issuers may change any Paying Agent, Registrar
or Co-registrar without notice to the Holders. The Issuers or any of their
respective Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or Co-registrar.
4. Indenture.
The Issuers issued the Securities under an Indenture, dated July 1,
1997 (the "Indenture"), between the Issuers and the Trustee. Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act, as in effect on
the date of the Indenture. The Securities are subject to all such terms, and
Holders of Securities are referred to the Indenture and said Act for a statement
of them. The Securities are senior obligations of the Issuers, ranking pari
passu in right of payment with all other senior obligations of the Issuers, and
are limited in aggregate principal amount to $205,000,000. The Securities are
designated "Designated Senior Indebtedness" for all purposes of the indenture
governing the Issuers' 9-3/4% Senior Subordinated Notes due 2004.
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5. Redemption.
Except as provided in this Paragraph 5, the Issuers shall not have
the right to redeem any Securities. The Securities are redeemable in whole or
from time to time in part at any time on or after July 1, 2001, at the option of
the Issuers, at the Redemption Price (expressed as a percentage of principal
amount) set forth below, if redeemed during the 12-month period commencing July
1 of each of the years indicated below, in each case (subject to the right of
Holders of record on the Record Date to receive interest due on an Interest
Payment Date that is on or prior to such Redemption Date), plus any accrued but
unpaid interest (and Liquidated Damages, if any) to the Redemption Date.
Year Redemption Price
---- ----------------
2001............................... 104.750%
2002............................... 102.375%
2003............................... 100.000%
Until July 1, 2000, upon a Public Equity Offering of Notes, up to
35% of the aggregate principal amount of the Notes may be redeemed at the option
of the Issuers within 120 days of such Public Equity Offering, on not less than
30 days, but not more than 60 days notice to each Holder of the Notes to be
redeemed, with cash from the Net Cash Proceeds of such Public Equity Offering,
at 109.5% of principal (subject to the right of Holders of record on a Record
Date to receive interest due on an Interest Payment Date that is on or prior to
such Redemption Date), together with accrued and unpaid interest (and Liquidated
Damages, if any) to the date of redemption; provided, however, that immediately
following each such redemption not less than 65% of the aggregate principal
amount of the Notes originally issued are outstanding.
Any redemption of the Notes shall comply with Article III of the
Indenture.
6. Notice of Redemption.
Notice of redemption will be mailed by first class mail at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at his registered address as set forth on the registry
books
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of the Registrar. Securities 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 Securities called for redemption shall
have been deposited with the Paying Agent on such Redemption Date, the
Securities called for redemption will cease to bear interest and the only right
of the Holders of such Securities will be to receive payment of the Redemption
Price, plus any accrued but unpaid interest (and Liquidated Damages, if any) to
the Redemption Date.
7. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange Securities in accordance with, the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption.
8. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of
it for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Issuers at their written request. After that, all liability of the Trustee
and such Paying Agent(s) with respect to such money shall cease.
▇-▇▇
▇▇▇
▇▇. Discharge Prior to Redemption or Maturity.
If the Issuers at any time deposit into an irrevocable trust with
the Trustee Cash or U.S. Government Obligations sufficient to pay the principal
of and interest (and Liquidated Damages, if any) on the Securities to redemption
or maturity and comply with the other provisions of the Indenture relating
thereto, the Issuers will be discharged from certain provisions of the Indenture
and the Securities (including the financial covenants, but excluding its
obligation to pay the principal of and interest (and Liquidated Damages, if any)
on the Securities).
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of a majority
in aggregate principal amount of the Securities then outstanding, and any
existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
comply with the TIA or make any other change that does not adversely affect the
rights of any Holder of a Security.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Issuers and their respective Subsidiaries to, among other things, incur
additional Indebtedness and Disqualified Capital Stock, make payments in respect
of its Capital Stock, enter into transactions with Affiliates, incur Liens,
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 Issuers must annually report to the Trustee on compliance with such
limitations.
▇-▇▇
▇▇▇
▇▇. Change of Control.
In the event there shall occur any Change of Control, each Holder of
Securities shall have the right, at such Holder's option but subject to the
limitations and conditions set forth in the Indenture, to require the Issuers to
purchase on the Change of Control Purchase Date in the manner specified in the
Indenture, all or any part (in integral multiples of $1,000) of such Holder's
Securities at a cash price equal to 101% of the principal amount thereof,
together with accrued but unpaid interest (and Liquidated Damages, if any) to
and including the Change of Control Purchase Date.
14. Certain Asset Sales.
The Indenture imposes certain limitations on the ability of the
Issuers to sell assets. In the event the proceeds from a permitted Asset Sale
exceed certain amounts, as specified in the Indenture, the Issuers generally
will be required either to reinvest the proceeds of such Asset Sale in its
business, use such proceeds to retire debt, or to make an asset sale offer to
purchase a certain amount of each Holder's Securities at 100% of the principal
amount thereof, plus accrued interest, if any, to the purchase date, as more
fully set forth in the Indenture
15. Successors.
When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released from
those obligations.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the
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Securities then outstanding may direct the Trustee in its exercise of any trust
or power.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Issuers or their respective Affiliates, and may otherwise deal with the Issuers
or their Affiliates as if it were not the Trustee.
18. No Recourse Against Others.
Neither the trustee, grantor, beneficiaries or special advisors to
the Trust, nor any direct or indirect shareholder, employee, director, officer
or agent (including independent members of the Fairness Committee) of the
Issuers and the Subsidiaries shall have any personal liability in respect of the
obligations of the Issuers and the Subsidiaries under the Indenture, the Notes
or the Guarantees by reason of his, her or its status as such. Each Holder of a
Security by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Securities.
19. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security 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).
▇-▇▇
▇▇▇
▇▇. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Governing Law.
The Indenture and the Securities shall be governed by and construed
in accordance with the internal laws of the State of New York.
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[FORM OF ASSIGNMENT]
I or we assign this Security 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 Security on the books
of the Issuers. The agent may substitute another to act for him.
Dated: ___________ Signed: ____________________________________________________
__________________________________________________________________
(Sign exactly as your name appears on the other side of
this Security)
Signature guarantee: ____________________________
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to Section 4.13 or Article X of the Indenture, check the appropriate
box:
[ ] Section 4.13
[ ] Article X
If you want to elect to have only part of this Security purchased by
the Issuers pursuant to the Indenture, state the principal amount you want to
have purchased:
$__________
Date: ________________ Signature: __________________________________
(Sign exactly as your name appears on the other side of this Security)
Signature guarantee: _________________________
▇-▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ OF DEFINITIVE SECURITIES2
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Principal Amount of Signature of autho-
Amount of decrease in Amount of increase in this Global Security rized signatory of
Principal Amount of Principal Amount of following such decrease Trustee or
Date of Exchange This Global Security this Global Security (or increase) Securities Custodian
--------------------------------------------------------------------------------------------------------------------------
--------------
2 This schedule should only be added if the Security is
issued in global form.
A-17
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
SECURITIES3
Re: 9 1/2% SENIOR NOTES DUE 2005 OF VENTURE HOLDINGS TRUST
This Certificate relates to $______ principal amount of Securities held
in 4 [ ] book-entry or [ ] definitive form by _______ (the "Transferor").
The Transferor:
[ ] has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depository a Security or
Securities in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global
Security (or the portion thereof indicated above); or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that Transferor is familiar with
the Indenture relating to the above-captioned Securities and as provided in
Section 2.6 of such Indenture, the transfer of this Security does not require
registration under the Securities Act (as defined below) because:5
--------
3 The following should be included only for Original
Notes.
4 Check applicable box.
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[ ] Such Security is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.6(a)(ii)(A) or Section 2.6(d)(i)(A) of
the Indenture).
[ ] Such Security is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")) in reliance on Rule 144A (in satisfaction of Section
2.6(a)(ii)(B) or Section 2.6(d)(i)(B) of the Indenture).
[ ] Such Security is being transferred in accordance with (i) Rule 144 or
Regulation S under the Securities Act, (ii) pursuant to an effective
registration statement under the Securities Act, (iii) to an "institutional
accredited investor" within the meaning of Rule 501(A)(1), (2), (3) or (7)
under the Securities Act that is acquiring the Security for its own account, or
for the account of such an institutional accredited investor, in each case in
a minimum principal amount of $100,000, not with a view to or for offer or
sale in connection with any distribution in violation of the Securities Act or
(iv) in reliance on another exemption from registration under the Securities
Act (in satisfaction of Section 2.6(a)(ii)(C) or Section 2.6(d)(i)(C) of the
Indenture). To effect such transfer, the Registrar or the Issuers may require
delivery of an Opinion of Counsel and in case of a transfer pursuant to clause
(iii) above, will require a transferee letter of representation.
---------------------------
[INSERT NAME OF TRANSFEROR]
By:
------------------------
Dated:
---------------------
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EXHIBIT B
FORM OF GUARANTEE
For value received, __________________, a _______________
corporation, hereby irrevocably, unconditionally guarantees on a senior basis to
the Holder of the Security upon which this Guarantee is endorsed the due and
punctual payment, as set forth in the Indenture pursuant to which such Security
and this Guarantee were issued, of the principal of, premium (if any) and
interest (and Liquidated Damages, if any) on such Security when and as the same
shall become due and payable for any reason according to the terms of such
Security and Article XI of the Indenture. The Guarantee of the Security upon
which this Guarantee is endorsed will not become effective until the Trustee
signs the certificate of authentication on such Security. The Guarantee is
designated "Designated Guarantor Senior Indebtedness" for all purposes of the
indenture governing the Issuers' 9-3/4% Senior Subordinated Notes due 2004.
-------------------------------
By:
----------------------------
Attest:
------------------------
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EXHIBIT C-1
[Opinion of Special Tax Counsel]
To the Trustee:
Ladies and Gentlemen:
We have acted as special tax counsel to Venture Holdings Trust, a
grantor trust organized under the laws of Michigan, and its successors (the
"Trust"), Vemco, Inc. ("Vemco"), Venture Industries Corporation ("Industries"),
Venture Mold & Engineering Corporation ("Venture Mold"), Venture Leasing Company
("Venture Leasing"), Vemco Leasing, Inc. ("Vemco Leasing"), Venture Holdings
Corporation ("Venture Holdings") and Venture Service Company ("Venture
Service"), each a Michigan corporation (each an "Issuer" and, together with the
Trust, the "Issuers"), in connection with the execution of the notes (the
"Notes") by the Issuers in an aggregate principal amount of $205,000,000 in
favor of various entities (the "Holders") pursuant to an Indenture (the
"Indenture"), dated as of July 1, 1997, among the Issuers and The Huntington
National Bank, as Trustee. This opinion is delivered pursuant to Section 4.3 of
the Indenture.
We have examined (i) the Venture Trust Agreement (the "Trust
Agreement"), dated as of December 28, 1987, between Citizens Commercial &
Savings Bank, a Michigan corporation, as Trustee, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as
Seller, as amended by First Amendment to Venture Holdings Trust, dated April 5,
1990, as amended by Second Amendment to Venture Holdings Trust, dated October
29, 1993 and as amended and restated in its entirety as of February 16, 1994,
(ii) the Notes, (iii) the Indenture and (iv) such further documents, and made
such further investigations as we deem necessary in order to render the opinion
set forth below. In addition, we have reviewed the pertinent statutes,
regulations, proposed regulations, case law and rulings.
C-1-1
151
Based upon the foregoing, we are of the opinion that:
1. As of the date hereof, the Trust constitutes a trust described in
Section 1361(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code")
or a corporation described in Section 1361(a)(1) of the Code.
2. Each of Vemco, Industries, Venture Mold, Venture Leasing, Vemco
Leasing and Venture Service are S corporations as defined in Section 1361 of the
Code.
3. The beneficiaries of the Trust, if it constitutes a trust under
Section 1361(c)(2) of the Code, or the shareholders of the Trust, if it
constitutes a corporation under Section 1361(a)(1) of the Code, shall be treated
as the owners of the entire Trust for Federal income tax purposes and shall be
required to include in their taxable income the income, deductions and credits
of the Trust.
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152
EXHIBIT C-2
[Opinion of Special Tax Counsel]
To the Trustee:
Ladies and Gentlemen:
We have acted as special tax counsel to Venture Holdings Trust, a
grantor trust organized under the laws of Michigan, and its successors (the
"Trust"), Vemco, Inc. ("Vemco"), Venture Industries Corporation ("Industries"),
Venture Mold & Engineering Corporation ("Venture Mold"), Venture Leasing Company
("Venture Leasing"), Vemco Leasing, Inc. ("Vemco Leasing"), Venture Holdings
Corporation ("Venture Holdings") and Venture Service Company ("Venture
Service"), each a Michigan corporation (each an "Issuer" and, together with the
Trust, the "Issuers"), in connection with the execution of the notes (the
"Notes") by the Issuers in an aggregate principal amount of $205,000,000 in
favor of various entities (the "Holders") pursuant to an Indenture (the
"Indenture"), dated as of July 1, 1997, among the Issuers and The Huntington
National Bank, as Trustee. This opinion is delivered pursuant to Section 4.3 of
the Indenture.
We have examined (i) the Venture Trust Agreement (the "Trust
Agreement"), dated as of December 28, 1987, between Citizens Commercial &
Savings Bank, a Michigan corporation, as Trustee, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as
Seller, as amended by First Amendment to Venture Holdings Trust, dated April 5,
1990, as amended by Second Amendment to Venture Holdings Trust, dated October
29, 1993 and as amended and restated in its entirety as of February 16, 1994,
(ii) the Notes, (iii) the Indenture and (iv) such further documents, and made
such further investigations as we deem necessary in order to render the opinion
set forth below. In addition, we have reviewed the pertinent statutes,
regulations, proposed regulations, case law and rulings.
C-2-1
153
Based upon the foregoing, we are of the opinion that:
1. As of the date hereof, the Trust constitutes a trust described in
Section 1361(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code")
or a trust described in Section 1361(d) of the Code or a corporation described
in Section 1361(a)(1) of the Code.
2. Each of Vemco, Industries, Venture Mold, Venture Leasing, Vemco
Leasing and Venture Service are S corporations as defined in Section 1361 of the
Code.
3. For Federal income tax purposes, the beneficiaries of the Trust,
if it constitutes a trust under Section 1361(c)(2) or 1361(d) of the Code, or
the shareholders of the Trust, if it constitutes a corporation under Section
1361(a)(1) of the Code, shall be treated as the owners of the entire portion of
the Trust which consists of the stock of the S corporations listed in 2. above
and shall be required to include in their taxable income the income, deductions
and credits of the Trust attributable to such portion.
C-2-2