TEREX CORPORATION,
as Issuer
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Subsidiary Guarantors
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
INDENTURE
-
Dated as of March 29, 2001
10 3/8 % Senior Subordinated Notes due 2011
INDENTURE, dated as of March 29, 2001, among TEREX CORPORATION, a Delaware
corporation (the "Company"), KOEHRING CRANES, INC., a Delaware corporation,
PAYHAULER CORP., an Illinois corporation, PPM CRANES, INC., a Delaware
corporation, TEREX CRANES, INC., a Delaware corporation, TEREX MINING EQUIPMENT,
INC., a Delaware corporation, TEREX-RO CORPORATION, a Kansas corporation,
TEREX-TELELECT, INC., a Delaware corporation, THE AMERICAN CRANE CORPORATION, a
North Carolina corporation, O&K ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC., a Delaware
corporation, AMIDA INDUSTRIES, INC., a South Carolina corporation, CEDARAPIDS,
INC., an Iowa corporation, STANDARD ▇▇▇▇▇▇, INC., a Delaware corporation,
STANDARD ▇▇▇▇▇▇ PRODUCTS, INC., a Delaware corporation, BL-PEGSON (USA), INC., a
Connecticut corporation, ▇▇▇▇▇▇▇ AMERICA, INC., a Delaware corporation, ▇▇▇▇▇▇▇
ENGINEERING, INC., a Tennessee corporation, EARTHKING, INC., a Delaware
corporation, FINLAY HYDRASCREEN USA, INC., a Michigan corporation, POWERSCREEN
HOLDINGS USA, INC., a Delaware corporation, POWERSCREEN INTERNATIONAL LLC, a
Delaware limited liability company, POWERSCREEN NORTH AMERICA INC., a Delaware
corporation, POWERSCREEN USA, LLC, a Kentucky limited liability company, ▇▇▇▇▇
INDUSTRIES, INC., a Pennsylvania corporation and TEREX ▇▇▇▇▇▇▇, INC., a Delaware
corporation (the "Subsidiary Guarantors"), and UNITED STATES TRUST COMPANY OF
NEW YORK, a New York banking corporation, as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of $300,000,000 10
3/8% Senior Subordinated Notes due 2011 in the form of Initial Notes (as defined
below) and, if and when issued in connection with a registered exchange for such
Initial Notes, 10 3/8% Senior Subordinated Notes due 2011 in the form of
Exchange Notes (as defined below) and, if and when issued in connection with a
private exchange for such Initial Notes, 10 3/8% Senior Subordinated Private
Exchange Notes due 2011 in the form of Private Exchange Notes (as defined
below), and such Additional Notes (as defined below) that the Company may from
time to time choose to issue pursuant to the Indenture, and, to provide
therefor, the Company and each of the Subsidiary Guarantors has duly authorized
the execution and delivery of this Indenture. The Subsidiary Guarantors have
agreed to guarantee the Notes on a senior subordinated basis.
Each party hereto agrees as follows for the benefit of each other party and
for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
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"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries (the "Acquired Person") (i) existing at the time such Person
becomes a Restricted
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Subsidiary of the Company or at the time it merges or consolidates with the
Company or any of its Restricted Subsidiaries or (ii) assumed in connection with
the acquisition of assets from such Person.
"Additional Notes" means, subject to the Company's compliance
with Section 4.13, any other 10 3/8% Senior Subordinated Notes due 2011 issued
from time to time after March 29, 2001 under the terms of this Indenture (other
than pursuant to Section 2.07, 2.10, 3.06, 4.16, 4.17 or 9.06 of this Indenture
or Section 2.3 of the Appendix and other than Exchange Notes or Private Exchange
Notes issued pursuant to an exchange offer for other Notes outstanding under
this Indenture).
"Adjusted Maximum Amount" has the meaning provided in Section
11.05.
"Affiliate" of any specified Person means (i) any other Person
which, directly or indirectly, is in control of, is controlled by or is under
common control with such specified Person or (ii) any other Person who is a
director or officer (A) of such specified Person, (B) of any subsidiary of such
specified Person or (C) any Person described in clause (i) above. For purposes
of this definition, control of a Person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Aggregate Payments" has the meaning provided in Section
11.05.
"Asset Disposition" means any sale, lease, transfer,
conveyance or other disposition (or series of related sales, leases, transfers
or dispositions) by the Company or any Restricted Subsidiary, including any
disposition by means of a merger or consolidation (each referred to for the
purposes of this definition as a "disposition"), of (i) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares or
shares required by applicable law to be held by a Person other than the Company
or a Restricted Subsidiary), (ii) all or substantially all the assets of any
division or line of business of the Company or any Restricted Subsidiary or
(iii) any other assets of the Company or any Restricted Subsidiary outside of
the ordinary course of business of the Company or such Restricted Subsidiary
(other than, in the case of (i), (ii) and (iii) above, a disposition by a
Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Wholly Owned Subsidiary; provided, however, that each of (a) the
consummation of any sale or series of related sales of assets or properties of
the Company and the Restricted Subsidiaries by the Company and any Restricted
Subsidiaries having an aggregate fair market value of less than $1 million in
any fiscal year and (b) the discounting of accounts receivable or the sale of
inventory, in each case in the ordinary course of business, shall not be deemed
an Asset Disposition.
"Authenticating Agent" has the meaning provided in Section
2.02.
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"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (ii) the sum of all
such payments.
"Bank Indebtedness" means (i) the Indebtedness outstanding or
arising under the Credit Facility up to a maximum principal amount of $950
million, (ii) all obligations and other amounts owing to the holders of such
Indebtedness or any agent or representative thereof outstanding or arising under
the Credit Facility (including, but not limited to, interest (including interest
accruing on or after the filing of any petition in bankruptcy, reorganization or
similar proceeding relating to the Company or any Restricted Subsidiary, whether
or not a claim for such interest is allowed in such proceeding), fees, charges,
indemnities, expense reimbursement obligations and other claims under the Credit
Facility), and (iii) all Hedging Obligations arising in connection therewith
with any party to the Credit Facility.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligations" of a Person means any obligation
which is required to be classified and accounted for as a capital lease on the
face of a balance sheet of such Person prepared in accordance with GAAP; the
amount of such obligation shall be the capitalized amount thereof, determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated), including any Preferred
Stock, but excluding any debt securities convertible into or exchangeable for
such equity.
"Cash Equivalents" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state
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of the United States of America or any political subdivision of any such state
or any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Rating Services or
▇▇▇▇▇'▇ Investors Service, Inc.; (iii) commercial paper maturing no more than
one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from Standard & Poor's Rating Services or at
least P-1 from ▇▇▇▇▇'▇ Investors Service, Inc.; (iv) certificates of deposit or
bankers' acceptances maturing within one year from the date of acquisition
thereof issued by (x) any bank organized under the laws of the United States of
America or any state thereof or the District of Columbia or (y) a commercial
banking institution organized and located in a country recognized by the United
States of America, in each case having at the date of acquisition thereof
combined capital and surplus of not less than $200 million (or the foreign
currency equivalent thereof); (v) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clause (i)
above entered into with any bank meeting the qualifications specified in clause
(iv) above; (vi) investments in money market funds which invest substantially
all their assets in securities of the types described in clauses (i) through (v)
above; and (vii) other short- term investments utilized by foreign Restricted
Subsidiaries in accordance with normal investment practices for cash management
not exceeding $1.0 million in aggregate principal amount outstanding at any
time.
"Cash Flow" for any period means the Consolidated Net Income
for such period, plus the following (but without duplication) to the extent
deducted in calculating such Consolidated Net Income for such period: (i) income
tax expense, (ii) Consolidated Interest Expense, (iii) depreciation expense and
amortization expense, provided that consolidated depreciation and amortization
expense of a Subsidiary that is not a Wholly Owned Subsidiary shall only be
added to the extent of the equity interest of the Company in such Subsidiary and
(iv) all other non-cash charges (other than any recurring non-cash charges to
the extent such charges represent an accrual of or reserve for cash expenditures
in any future period). Notwithstanding clause (iv) above, there shall be
deducted from Cash Flow in any period any cash expended in such period that
funds a non-recurring, non-cash charge accrued or reserved in a prior period
which was added back to Cash Flow pursuant to clause (iv) in such prior period.
"Change of Control" means the occurrence of any of the
following events:
(i) any "person"or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the beneficial owner
(as defined in Rules 13d- 3 and 13d-5 under the Exchange Act, except
that a Person shall be deemed to have beneficial ownership of all
shares that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 40% of the total voting power of the Voting
Stock of the Company, whether as a result of issuance of securities of
the Company, any merger, consolidation, liquidation or dissolution of
the Company, any direct or indirect transfer of securities or
otherwise.
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(ii) (A) another corporation merges into the Company or the
Company consolidates with or merges into any other corporation, or (B)
the Company conveys, transfers or leases all or substantially all its
assets (computed on a consolidated basis) to any person or group, in
one transaction or a series of transactions other than any conveyance,
transfer or lease between the Company and a Wholly Owned Subsidiary of
the Company, in each case in one transaction or a series of related
transactions with the effect that either (x) immediately after such
transaction any person or entity or group (as so defined) of persons or
entities (other than a Permitted Holder) shall have become the
beneficial owner of securities of the surviving corporation of such
merger or consolidation representing a majority of the combined voting
power of the outstanding securities of the surviving corporation
ordinarily having the right to vote in the election of directors or (y)
the securities of the Company that are outstanding immediately prior to
such transaction and which represent 100% of the combined voting power
of the securities of the Company ordinarily having the right to vote in
the election of directors are changed into or exchanged for cash,
securities or property, unless pursuant to such transaction such
securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving corporation that represent
immediately after such transaction, at least a majority of the combined
voting power of the securities of the surviving corporation ordinarily
having the right to vote in the election of directors; or
(iii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
of the Company (together with any new directors whose election by such
Board of Directors or whose nomination for election by the shareholders
of the Company was approved by a vote of 60% of the directors of the
Company then still in office who were either directors at the beginning
of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority
of the Board of Directors of the Company then in office.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock Appreciation Rights" means up to 1,000,000
common stock appreciation rights issued on May 9, 1995 pursuant to a Common
Stock Appreciation Rights Agreement between the Company and United States Trust
Company of New York, as agent.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
such successor.
"Consolidated Cash Flow Coverage Ratio" as of any date of
determination means the ratio of (i) the aggregate amount of Cash Flow for the
period of the most recent four consecutive fiscal quarters for which financial
statements are available to (ii) Consolidated Interest Expense for such four
fiscal quarters; provided, however, that (1) if the Company or any Restricted
Subsidiary has issued any Indebtedness since the beginning of such period that
remains outstanding or if the transaction giving rise to the need to calculate
the Consolidated Cash Flow Coverage Ratio is an issuance of Indebtedness, or
both, Cash Flow and Consolidated
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Interest Expense for such period shall be calculated after giving effect on a
pro forma basis to such Indebtedness as if such Indebtedness had been issued on
the first day of such period and the discharge of any other Indebtedness repaid,
repurchased, defeased or otherwise discharged with the proceeds of such new
Indebtedness as if such discharge had occurred on the first day of such period,
(2) if since the beginning of such period the Company or any Restricted
Subsidiary shall have made any Asset Disposition, the Cash Flow for such period
shall be reduced by an amount equal to the Cash Flow (if positive) directly
attributable to the assets which are the subject of such Asset Disposition for
such period, or increased by an amount equal to the Cash Flow (if negative),
directly attributable thereto for such period, and Consolidated Interest Expense
for such period shall be reduced by an amount equal to the Consolidated Interest
Expense directly attributable to any Indebtedness of the Company or any
Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its continuing Restricted Subsidiaries in connection
with such Asset Dispositions for such period (or, if the Capital Stock of any
Restricted Subsidiary is sold, the Consolidated Interest Expense for such period
directly attributable to the Indebtedness of such Restricted Subsidiary to the
extent the Company and its continuing Restricted Subsidiaries are no longer
liable for such Indebtedness after such sale), (3) if since the beginning of
such period the Company or any Restricted Subsidiary (by merger or otherwise)
shall have made an Investment in any Restricted Subsidiary (or any Person which
becomes a Restricted Subsidiary) or an acquisition of assets (including Capital
Stock of a Subsidiary), including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder, Cash
Flow and Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the issuance of any Indebtedness) as
if such Investment or acquisition occurred on the first day of such period, and
(4) if since the beginning of such period any Person (that subsequently became a
Restricted Subsidiary or was merged with or into the Company or any Restricted
Subsidiary since the beginning of such period) shall have made any Asset
Disposition or any Investment that would have required an adjustment pursuant to
clause (2) or (3) above if made by the Company or a Restricted Subsidiary during
such period, Cash Flow and Consolidated Interest Expense for such period shall
be calculated after giving pro forma effect thereto as if such Asset Disposition
or Investment occurred on the first day of such period. For purposes of this
definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto, and the amount of
Consolidated Interest Expense associated with any Indebtedness issued in
connection therewith, the pro forma calculations shall be determined in good
faith by a responsible financial or accounting Officer of the Company. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest of such Indebtedness shall be calculated as if the average
interest rate for the period up to the date of determination had been the
applicable rate for the entire period (taking into account any Interest Rate
Protection Agreement applicable to such Indebtedness if such Interest Rate
Protection Agreement has a remaining term in excess of 12 months). For purposes
of this definition, whenever pro forma effect is to be given to any Indebtedness
Incurred pursuant to a revolving credit facility the amount outstanding under
such Indebtedness shall be equal to the average of the amount outstanding during
the period commencing on the first day of the first of the four most recent
fiscal quarters for which financial statements are available and ending on the
date of determination.
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"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its consolidated Restricted
Subsidiaries, plus, to the extent not included in such interest expense but
Incurred by the Company or its Restricted Subsidiaries, (i) interest expense
attributable to capital leases, (ii) amortization of debt discount, (iii)
capitalized interest, (iv) original issue discount and non-cash interest
payments or accruals, (v) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, (vi) net
costs under Hedging Obligations (including amortization of fees), (vii)
dividends in respect of all Disqualified Stock held by Persons other than the
Company, a Subsidiary Guarantor or a Wholly Owned Subsidiary, (viii) interest
Incurred in connection with investments in discontinued operations, (ix) the
interest portion of any deferred payment obligations constituting Indebtedness,
and (x) the cash contributions to any employee stock ownership plan or similar
trust to the extent such contributions are used by such plan or trust to pay
interest or fees to any Person (other than the Company) in connection with
Indebtedness Incurred by such plan or trust. For purposes of this definition,
interest expense attributable to any Indebtedness represented by the guarantee
(other than (a) Guarantees permitted by the terms of clauses (b)(x) and (xi),
respectively, of Sections 4.13 and 4.18 and (b) Guarantees by the Company of
Indebtedness of a consolidated Restricted Subsidiary or by a consolidated
Restricted Subsidiary of the Company or another consolidated Restricted
Subsidiary) by such person or a Subsidiary of such person of an obligation of
another person shall be deemed to be the interest expense attributable to the
Indebtedness guaranteed.
"Consolidated Net Income" means, for any period, the net
income of the Company and its consolidated Subsidiaries; provided, however, that
there shall not be included in such Consolidated Net Income:
(i) any net income of any Person if such Person is not a
Restricted Subsidiary, except that (A) the Company's equity in the net
income of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution to a Restricted
Subsidiary, to the limitations contained in clause (iii) below) and (B)
the Company's equity in a net loss of any such Person for such period
shall be included in determining such Consolidated Net Income;
(ii) any net income of any Person acquired by the Company or a
Subsidiary in a pooling of interests transaction for any period prior
to the date of such acquisition;
(iii) any net income of any Restricted Subsidiary if such
Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions
by such Subsidiary, directly or indirectly, to the Company, except that
(A) the Company's equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such
Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution to another Restricted
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Subsidiary, to the limitation contained in this clause) and (B) the
Company's equity in a net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net
Income;
(iv) any gain or loss realized upon the sale or other
disposition of any property, plant or equipment of the Company or its
consolidated subsidiaries (including pursuant to any sale and leaseback
arrangement) which is not sold or otherwise disposed of in the ordinary
course of business and any gain or loss realized upon the sale or other
disposition of any Capital Stock of any Person;
(v) all extraordinary, unusual or non-recurring gains, and any
extraordinary or non-recurring loss as recorded on the statement of
operations in accordance with GAAP; and
(vi) the cumulative effect of a change in accounting
principles.
"covenant defeasance option" has the meaning provided in
Section 8.01.
"Credit Facility" means a collective reference to any term
loan and revolving credit facilities (including, but not limited to, the credit
agreement dated March 6, 1998, by and among the Company, certain of its
subsidiaries and certain financial institutions, and the credit agreement dated
August 23, 1999, by and among the Company and certain financial institutions),
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, as such credit facilities and/or
related documents may be further amended, restated, supplemented, renewed,
replaced or otherwise modified from time to time whether or not with the same
agent, trustee, representative lenders or holders, and irrespective of any
changes in the terms and conditions thereof. Without limiting the generality of
the foregoing, the term "Credit Facility" shall include agreements in respect of
reimbursement of letters of credit issued pursuant to the Credit Facility and
agreements in respect of Hedging Obligations with lenders party to the Credit
Facility and shall also include any amendment, amendment and restatement,
renewal, extension, restructuring, supplement or modification to any Credit
Facility and all refunding, refinancings (in whole or in part) and replacements
of any Credit Facility, including any agreement (i) extending the maturity of
any Indebtedness incurred thereunder or contemplated thereby, or (ii) adding or
deleting borrowers or guarantors thereunder, so long as borrowers and issuers
include one or more of the Company and its Restricted Subsidiaries and their
respective successors and assigns.
"Currency Agreement Obligations" means the obligations of any
person under a foreign exchange contract, currency swap agreement or other
similar agreement or arrangement to protect such person against fluctuations in
currency values.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
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"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Depository" means The Depository Trust Company, its nominees
and their respective successors.
"Designated Senior Indebtedness" means (i) so long as any Bank
Indebtedness is outstanding, such Bank Indebtedness and (ii) provided no Bank
Indebtedness is outstanding (or if Bank Indebtedness is outstanding, to the
extent permitted by the terms of, or the lenders under, such Bank Indebtedness),
any other Senior Indebtedness of the Company permitted to be incurred under the
Indenture which, at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to, at least $20 million and is specifically
designated by the Company in the instrument evidencing or governing such Senior
Indebtedness as "Designated Senior Indebtedness" for purposes of the Indenture.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable) or upon the happening of any
event (i) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise prior to the 91st day after the Stated Maturity of the
Notes, (ii) is convertible or exchangeable for Indebtedness or Disqualified
Stock prior to the 91st day after the Stated Maturity of the Notes or (iii) is
redeemable at the option of the holder thereof, in whole or in part on or prior
to the 91st day after the Stated Maturity of the Notes; provided, however, that
any Capital Stock that would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require such Person to
repurchase or redeem such Capital Stock upon the occurrence of an "asset sale"
or "change of control" occurring prior to the first anniversary of the Stated
Maturity of the Notes shall not constitute Disqualified Stock if the "asset
sale" or "change of control" provisions applicable to such Capital Stock are not
more favorable to the holders of such Capital Stock than the provisions
described under Sections 4.17 and 4.16 below.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" has the meaning provided in the Appendix.
"Existing Notes" means the $250,000,000 principal amount of
the Company's 87/8% Senior Subordinated Notes due 2008 issued under the Existing
Notes Indenture, as such may be amended or supplemented from time to time.
"Existing Notes Indenture" means collectively, the Indentures
dated March 31, 1998 and March 9, 1999, among the Company, the guarantors named
therein and United States
9
Trust Company of New York, as trustee, providing for the issuance of the
Existing Notes, as such may be amended or supplemented from time to time.
"Fair Share" has the meaning provided in Section 11.05.
"Fair Share Shortfall" has the meaning provided in Section
11.05.
"Floor Plan Guarantees" means guarantees (including but not
limited to repurchase or remarketing obligations) by the Company or a Restricted
Subsidiary Incurred in the ordinary course of business consistent with past
practice of Indebtedness Incurred by a franchise dealer, or other purchaser or
lessor, for the purchase of inventory manufactured or sold by the Company or a
Restricted Subsidiary, the proceeds of which Indebtedness is used solely to pay
the purchase price of such inventory to such franchise dealer and any related
reasonable fees and expenses (including financing fees), provided, however, that
(1) to the extent commercially practicable, the Indebtedness so guaranteed is
secured by a perfected first priority Lien on such inventory in favor of the
holder of such Indebtedness and (2) if the Company or such Restricted Subsidiary
is required to make payment with respect to such guarantee, the Company or such
Restricted Subsidiary will have the right to receive either (q) title to such
inventory, (r) a valid assignment of a perfected first priority Lien in such
inventory or (s) the net proceeds of any resale of such inventory.
"Fraudulent Transfer Laws" has the meaning provided in Section
11.05.
"Funding Subsidiary Guarantor" has the meaning provided in
Section 11.05.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of March 29, 2001, including those set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing in any manner any Indebtedness or
other obligation of any Person and any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation of such Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring in any
other manner the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not include
endorsements of negotiable instruments for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb has a corresponding
meaning.
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"Guarantee Obligations" has the meaning provided in Section
12.01.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any interest rate swap agreement, foreign currency
exchange agreement, interest rate collar agreement, option or futures contract
or other similar agreement or arrangement designed to protect such Person
against changes in interest rates or foreign exchange rates.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Registrar's books.
"Inactive Subsidiary" means a Subsidiary which at the time of
determination (i) owns assets having a fair market value of less than $50,000,
(ii) does not conduct any business activity and (iii) is not an obligor with
respect to any Indebtedness.
"Incur" means create, issue, assume, Guarantee, incur or
otherwise become liable for, directly or indirectly, or otherwise become
responsible for, contingently or otherwise, Indebtedness or Disqualified Stock;
provided, however, that any Indebtedness or Disqualified Stock of a Person
existing at the time such Person becomes a subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when used
as a noun shall have a correlative meaning.
"Indebtedness" of any Person means, without duplication, and
whether or not contingent,
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for
the payment of which such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person;
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable arising in
the ordinary course of business);
(iv) all obligations of such Person for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar
credit transaction;
(v) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock (measured at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued and unpaid dividends);
11
(vi) to the extent not otherwise included in this definition,
all Hedging Obligations;
(vii) all obligations of the type referred to in clauses (i)
through (vi) of other Persons and all dividends of other Persons for
the payment of which, in either case, such Person is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise,
including by means of any Guarantee (other than in each case by reason
of activities described in the proviso to the definition of
"Guarantee"); and
(viii) all obligations of the type referred to in clauses (i)
through (vii) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets or the amount of the obligation so
secured.
For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture, and if such price is based
upon, or measured by, the fair market value of such Disqualified Stock, such
fair market value to be determined in good faith by the Board of Directors. For
purposes hereof, the amount of any Indebtedness issued with original issue
discount shall be the original purchase price plus accrued interest, provided,
however, that such accretion shall not be deemed an incurrence of Indebtedness.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Initial Notes" has the meaning provided in the Appendix.
"Initial Purchasers" has the meaning provided in the Appendix.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Rate Protection Agreement" means any interest rate
swap agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect the Company or any Restricted Subsidiary against
fluctuations in interest rates.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable or deposits on the balance
sheet of the Person making the advance or loan, in each case in accordance with
GAAP) or other extensions of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or
12
any purchase or acquisition of Capital Stock, Indebtedness or other similar
instruments issued by such Person and shall include the designation of a
Restricted Subsidiary as an Unrestricted Subsidiary. For purposes of the
definition of "Unrestricted Subsidiary," the definition of "Restricted Payment"
and the covenant described under Section 4.10, (i) "Investment" shall include
the portion (proportionate to the Company's equity interest in such Subsidiary)
of the fair market value of the net assets of any Subsidiary of the Company at
the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to continue to have a permanent
investment in an Unrestricted Subsidiary in an amount (if positive) equal to (x)
the Company's "Investment" in such Subsidiary at the time of such redesignation
less (y) the portion (proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of such Subsidiary at the
time of such redesignation, and (ii) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at the time of
such transfer, in each case as determined in good faith by the Board of
Directors. Notwithstanding the foregoing, in no event shall any issuance of
Capital Stock (other than Preferred Stock or Disqualified Stock, or Capital
Stock exchangeable, exercisable or convertible for any of the foregoing) of the
Company in exchange for Capital Stock, property or assets of another Person
constitute an Investment by the Company in such Person.
"issue" means issue, assume, Guarantee, Incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be issued by
such Subsidiary at the time it becomes a Subsidiary; and the term "issuance" has
a corresponding meaning.
"Issue Date" means the date of original issuance of the Notes.
"legal defeasance option" has the meaning provided in Section
8.01.
"Legal Holiday" has the meaning provided in Section 13.07.
"Lien" means any mortgage, pledge, security interest,
privilege, conditional sale or other title retention agreement or other similar
lien (statutory or otherwise), or encumbrance upon or with respect to any
property of any kind, real or personal, moveable or immovable, now owned or
hereafter acquired.
"Maturity Date" means April 1, 2011.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to such properties or assets or received in any other
non-cash form) therefrom, in each case net of (i) all legal, title and recording
tax expenses, commissions and
13
other fees and expenses Incurred, and all Federal, state, provincial, foreign
and local taxes required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition, (ii) all payments made on any
Indebtedness which (A) is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any lien upon or other security
agreement of any kind with respect to such assets, or (B) which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law be repaid out of the proceeds from such Asset Disposition,
(iii) all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset
Disposition and (iv) reasonable amounts provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the property or
other assets disposed of in such Asset Disposition and retained by the Company
or any Restricted Subsidiary after such Asset Disposition, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Disposition. Further, with respect to an
Asset Disposition by a Subsidiary which is not a Wholly Owned Subsidiary, Net
Available Cash shall be reduced pro rata for the portion of the equity of such
Subsidiary which is not owned by the Company.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale plus, in the
case of an issuance of Capital Stock upon any exercise, exchange or conversion
of securities (including options, warrants, rights and convertible exchangeable
debt), of the Company that were issued for cash on or after March 29, 2001, the
amount of cash originally received by the Company upon the issuance of such
securities (including options, warrants, rights and convertible or exchangeable
debt), net of attorneys' fees, accountants' fees, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultant and other fees
and expenses actually Incurred or required to be Incurred in connection with
such issuance or sale and also net of taxes paid or payable as a result thereof.
"Notes" means the Initial Notes, the Exchange Notes and the
Private Exchange Notes treated as a single class of securities, as amended or
supplemented from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture.
"Obligations" means with respect to any Indebtedness all
obligations for principal, premium, interest (including, without limitation,
interest after the commencement of any bankruptcy, reorganization, insolvency or
similar proceeding against the Company or any of its Subsidiaries, whether or
not allowed in any such proceeding), penalties, fees, indemnifications,
reimbursements, and other amounts payable pursuant to the documentation
governing such Indebtedness.
"Offer" has the meaning provided in Section 4.17.
"Offer Amount" has the meaning provided in Section 4.17.
"Offer Period" has the meaning provided in Section 4.17.
14
"Offering Memorandum" means (i) with respect to the Initial
Notes issued on March 29, 2001, the Offering Circular dated March 22, 2001,
pursuant to which the $300.0 million of 10 3/8% Senior Subordinated Notes due
2011 in the form of Initial Notes were offered, and any supplement thereto and
(ii) with respect to each issuance of Additional Notes, the offering circular,
prospectus or other similar offering document pursuant to which such Additional
Notes were offered, and any supplement thereto.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Controller, the Treasurer, or the Secretary of such
Person, or any other officer designated by the Board of Directors serving in a
similar capacity.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either a Treasurer or
Assistant Treasurer or an Assistant Secretary of such Person and otherwise
complying with the requirements of Sections 13.04 and 13.05, to the extent they
relate to the making of an Officers' Certificate.
"Opinion of Counsel" means a written opinion from legal
counsel, who may be counsel for the Company, and who is reasonably acceptable to
the Trustee complying with the requirements of Sections 13.04 and 13.05, to the
extent they relate to the giving of an Opinion of Counsel.
"Paying Agent" has the meaning provided in Section 2.03.
"Payment Blockage Period" has the meanings provided in
Sections 10.02 and 12.02.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in (i) the Company, a Restricted Subsidiary or a
Person that will, upon the making of such Investment, become a Restricted
Subsidiary; provided, however, that the primary business of such Restricted
Subsidiary is a Related Business; (ii) another Person if as a result of such
Investment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary; provided, however, that such Person's primary business is
a Related Business; (iii) Investments in Cash Equivalents; (iv) receivables
owing to the Company or any Restricted Subsidiary if created or acquired in the
ordinary course of business; (v) loans or advances to employees made in the
ordinary course of business consistent with past practices of the Company or
such Restricted Subsidiary; (vi) stock, obligations or securities received in
settlement of debts created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary or in satisfaction of judgments; (vii) any
Person to the extent such Investment represents the non-cash portion of the
consideration received for an Asset Disposition as permitted pursuant to the
covenant described under Section 4.17; (viii) so long as no Default has occurred
and is continuing (or would result therefrom), any Investment made by the
issuance of, or with the proceeds of a substantially concurrent sale of, Capital
Stock (other than Disqualified Stock) of the Company; provided, however, that
the Net Cash Proceeds from such sale shall be excluded
15
from clause 3(B) of paragraph (a) of the covenant described under Section 4.10;
(ix) Investments by the Company or any Restricted Subsidiary, in an aggregate
amount not to exceed $3 million, in an Unrestricted Subsidiary formed primarily
for the purposes of financing purchases and leases of inventory manufactured by
the Company or any Restricted Subsidiary; (x) Floor Plan Guarantees permitted by
the terms of clauses (b)(x) and (xi), respectively, of the covenants described
under Section 4.13 and Section 4.18; and (xi) other Investments that do not
exceed in the aggregate $10 million at any one time outstanding.
"Permitted Liens" means, with respect to any Person, (a)
pledges or deposits by such Person under workmen's compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits or cash or United
States government bonds to secure surety or appeal bonds to which such Person is
a party, or deposits as security for contested taxes or import duties or for the
payment of rent, in each case Incurred in the ordinary course of business; (b)
Liens imposed by law, including carriers', warehousemen's and mechanics' Liens,
in each case for sums not yet due or being contested in good faith by
appropriate proceedings; or other Liens arising out of judgments or awards
against such Person with respect to which such Person shall then be proceeding
with an appeal or other proceedings for review; (c) Liens for taxes, assessments
or other governmental charges not yet subject to penalties for non-payment or
which are being contested in good faith by appropriate proceedings provided
appropriate reserves have been taken on the books of the Company; (d) Liens to
secure the performance of statutory obligations or in favor of issuers of surety
bonds, performance bonds, appeal bonds or letters of credit or other obligations
of a like nature issued pursuant to the request of and for the account of such
Person, in each case in the ordinary course of its business; provided, however,
that such letters of credit do not constitute Indebtedness; (e) Liens securing a
Hedging Obligation so long as the related Indebtedness is, and is permitted to
be under the Indenture, secured by a Lien on the same property securing the
Hedging Obligation; (f) Liens for the purpose of securing the payment (or the
refinancing of the payment) of all or a part of any Purchase Money Indebtedness
or Capital Lease Obligations relating to assets or property acquired,
constructed or leased in the ordinary course of business provided that (x) the
aggregate principal amount of Indebtedness secured by such Liens shall not
exceed the cost of the assets or property so acquired or constructed and (y)
such Liens shall not encumber any other assets or property of the Company or any
Restricted Subsidiary other than such Assets or property and assets affixed or
appurtenant thereto; (g) Liens arising from precautionary Uniform Commercial
Code financing statement filings regarding operating leases entered into by the
Company and its Subsidiaries in the ordinary course of business; (h) Liens in
favor of the Company and/or any of its Restricted Subsidiaries, other than such
a Lien with respect to intercompany indebtedness if the Company or a Subsidiary
Guarantor is not the beneficiary of such a Lien; (i) Liens securing Indebtedness
of a Person existing at the time that such Person is acquired by, merged into or
consolidated with the Company or any Restricted Subsidiary; provided, however,
that such Liens were not incurred in connection with, or in contemplation of,
such acquisition, merger or consolidation, and do not extend to any property or
assets other than those of such Person; (j) Liens on property or assets existing
at the time of
16
acquisition thereof by the Company or any Restricted Subsidiary; provided,
however, that such Liens were not incurred in connection with, or in
contemplation of, such acquisition, and do not extend to any other property or
assets; (k) Liens existing on March 29, 2001; (l) Liens arising from the
rendering of a final judgement or order against the Company or any Restricted
Subsidiary that does not give rise to an Event of Default; (m) encumbrances
consisting of zoning restrictions, surety exceptions, utility easements,
licenses, rights of way, easements of ingress or egress over property of the
Company or any Restricted Subsidiary, rights or restrictions of record on the
use of real property, minor defects in title, landlords' and lessors' liens
under leases on property located on the rented premises, in each case not
interfering in any material respect with the ordinary conduct of the business of
the Company and the Restricted Subsidiaries; (n) Liens securing Senior
Indebtedness; (o) Liens with respect to Floor Plan Guarantees permitted by the
terms of clauses (b)(x) and (xi), respectively, of the covenants described under
Section 4.13 and Section 4.18; and (p) any extension, renewal, refinancing,
refunding or replacement of any Permitted Lien, provided that such new Lien is
limited to the property or assets that secured (or under the arrangement under
which the original Permitted Lien, could secure) the obligations to which such
Liens relate.
"Person" means any individual, corporation, limited liability
company, limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"principal" of any Indebtedness (including the Notes) means
the principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"Private Exchange Notes" has the meaning provided in the
Appendix.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 11 of Regulation S-X under the Securities Act, as
determined by the Board of Directors of the Company.
"Public Equity Offering" means an underwritten primary or
combined primary and secondary public offering of common stock (other than
Disqualified Stock) of the Company pursuant to an effective registration
statement under the Securities Act which public equity offering results in gross
proceeds to the Company of not less than $50 million.
"Purchase Date" has the meaning provided in Section 4.17.
"Purchase Money Indebtedness" means any Indebtedness of a
Person to any seller or other Person incurred to finance the acquisition
(including in the case of a Capital Lease Obligation, the lease) of any after
acquired real or personal tangible property or assets related
17
to the Business of the Company or the Restricted Subsidiaries and which is
incurred substantially concurrently with such acquisition and is secured only by
the assets so financed.
"Record Date" means each Record Date specified in the Notes,
whether or not a Legal Holiday.
"Redemption Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Notes.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Notes.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue other Indebtedness in exchange or replacement for, such indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances
any Indebtedness of the Company or any Restricted Subsidiary existing on March
29, 2001 or Incurred in compliance with the Indenture, including Indebtedness
that Refinances Refinancing Indebtedness; provided, however, that (i) such
Refinancing Indebtedness has a Stated Maturity no earlier than the earlier of
(x) the Stated Maturity of the Indebtedness being Refinanced and (y) the Stated
Maturity of the Notes, (ii) such Refinancing Indebtedness has an Average Life at
the time such Refinancing Indebtedness is Incurred that is equal to or greater
than the Average Life of the Indebtedness being Refinanced and (iii) such
Refinancing Indebtedness has an aggregate principal amount (or if Incurred with
original issue discount, an aggregate issue price) that is equal to or less that
the aggregate principal amount (or if Incurred with original issue discount, the
aggregate accreted value) then outstanding or committed (plus unpaid accrued
interest) under the Indebtedness being Refinanced, plus actual fees and expenses
Incurred in connection with the Refinancing; provided, further, however, that
(x) Refinancing Indebtedness shall not include (1) Indebtedness of a Subsidiary
that is not a Wholly Owned Subsidiary or a Subsidiary Guarantor that Refinances
Indebtedness of the Company or (2) Indebtedness of the Company or a Restricted
Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary, (y) if
the Indebtedness being Refinanced is not Senior Indebtedness, then such
Refinancing Indebtedness shall rank no more senior than, and shall be at least
as subordinated in right of payment, to the Notes as the Indebtedness being
Refinanced and (z) Refinancing Indebtedness shall be secured only by assets of a
similar type and in a similar amount to those that secured the Indebtedness so
refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" has the meaning set forth in
the Appendix.
"Regulation S" means Regulation S under the Securities Act.
18
"Related Business" means any business in the manufacture or
sale of capital goods or parts or services, or otherwise reasonably related,
ancillary or complementary to the businesses of the Company and the Restricted
Subsidiaries on March 29, 2001.
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Indebtedness;
provided that if, and for so long as, any Designated Senior Indebtedness lacks
such a representative, then the Representative for such Designated Senior
Indebtedness shall at all times be the holders of a majority in outstanding
principal amount of such Designated Senior Indebtedness in respect of any
Designated Senior Indebtedness.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Payment" has the meaning provided in Section 4.10.
"Restricted Subsidiary" means any Subsidiary of the Company
that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of a Person
secured by a Lien.
"Securities Act" means, the Securities Act of 1933, as
amended, or any successor statute or statutes thereto.
"Senior Credit Facility Representative" means, at any time,
the then-acting administrative agent or agents under the Credit Facility, which
shall initially be Credit Suisse First Boston.
"Senior Indebtedness" means with respect to the Company or any
Subsidiary Guarantor (x) Bank Indebtedness and (y) any other Indebtedness that,
by the terms of the instrument creating or evidencing such Indebtedness, is
expressly made senior in right of payment to the Notes or the applicable
Guarantee, other than (1) any obligation of such Person to any subsidiary of
such Person or to any officer, director or employee of such Person or any such
subsidiary, (2) any liability of such Person for federal, state, local or other
taxes owed or owing by such Person, (3) any accounts payable or other liability
of such Person to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities), (4)
any Indebtedness, Guarantee or obligation of such Person which is, expressly by
its terms, subordinate or junior in any respect to any other Indebtedness,
Guarantee or obligation of such Person, (5) that portion of any Indebtedness of
such Person which at the time of issuance is issued in violation of the
Indenture, (6) Indebtedness of such Person represented by Disqualified Stock or
(7) Capital Lease Obligations.
19
"Senior Subordinated Indebtedness" means the Notes and any
other Indebtedness of the Company that specifically provides that such
Indebtedness is to rank pari passu with the Notes in right of payment and is not
subordinated by its terms in right of payment to any Indebtedness or other
obligation of the Company which is not Senior Indebtedness of the Company.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the
final date specified in such security as the fixed date on which all outstanding
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the
Company or any Subsidiary Guarantor (whether outstanding on March 29, 2001 or
thereafter Incurred) which is subordinate or junior in right of payment to the
Notes or the relevant Subsidiary Guarantee, as applicable, pursuant to a written
agreement to that effect.
"Subsidiary" means (a) any corporation, association,
partnership, limited liability company or other business entity of which more
than 50% of the total voting power of shares of Capital Stock or other interests
(including partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) the
Company, (ii) the Company and one or more Subsidiaries or (iii) one or more
Subsidiaries or (b) any limited partnership of which the Company or any
Subsidiary is a general partner, or (c) any other Person (other than a
corporation or limited partnership) in which the Company, or one or more other
Subsidiaries or the Company and one or more other Subsidiaries, directly or
indirectly, has more than 50% of the outstanding partnership or similar
interests or has the power, by contract or otherwise, to direct or cause the
direction of the policies, management and affairs thereof. Unless the context
other wise requires, Subsidiary means each direct and indirect Subsidiary of the
Company.
"Subsidiary Guarantee" means a Guarantee by a Subsidiary
Guarantor of the Company's Obligations with respect to the Notes.
"Subsidiary Guarantor" means any Subsidiary that Guarantees
the Company's Obligations with respect to the Notes.
"TIA" means the Trust Indenture Act of 1939, as amended (15
U.S.C. Sections 77aaa- 77bbbb), as in effect on the date of this Indenture.
20
"Trust Officer" means any authorized officer of the Trustee
assigned by the Trustee to administer this Indenture, or in the case of a
successor trustee, an authorized officer assigned to the department, division or
group performing the corporation trust work of such successor and assigned to
administer this Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Unrestricted Subsidiary" means any Subsidiary of the Company
(other than a Subsidiary Guarantor) designated as such pursuant to and in
compliance with Section 4.21." Any such designation may be revoked by a
resolution of the Board of Directors of the Company delivered to the Trustee,
subject to the provisions of such covenant.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"Voting Stock" of a Person means Capital Stock of such Person
of the class or classes pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such Person (irrespective of whether
or not at the time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
"Wholly Owned Subsidiary" means (i) a Restricted Subsidiary
all the Capital Stock of which (other than directors' qualifying shares and
shares held by other Persons to the extent such Shares are required by
applicable law to be held by a Person other than the Company or a Restricted
Subsidiary) is owned by the Company or one or more Wholly Owned Subsidiaries and
(ii) each of Terex Cranes, Inc., P.P.M. Cranes, Inc., P.P.M. S.A., and any
future wholly owned subsidiaries of any of the foregoing, in each case so long
as the Company or one or more Wholly Owned Subsidiaries maintains a percentage
ownership interest in such entity equal to or greater than such ownership
interest (on a fully diluted basis) on the later of (a) March 29, 2001 or (b)
the date such entity is incorporated or acquired by the Company or one or more
Wholly Owned Subsidiaries.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
21
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or
any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP as in effect on
March 29, 2001;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words
in the plural include the singular;
(5) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(6) reference to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise.
SECTION 1.04. One Class of Securities.
The Initial Notes, the Private Exchange Notes and the Exchange
Notes shall vote and consent together on all matters as one class and none of
the Initial Notes, the Private Exchange Notes or the Exchange Notes shall have
the right to vote or consent as a separate class on any matter.
22
ARTICLE TWO THE NOTES
SECTION 2.01. Form and Dating.
---------------
(a) Provisions relating to the Initial Notes, the Private
Exchange Notes and the Exchange Notes are set forth in the Rule 144A/Regulation
S Appendix attached hereto (the "Appendix"), which is hereby incorporated in and
expressly made a part of this Indenture. The Initial Notes and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
hereto. The Exchange Notes, the Private Exchange Notes and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit B
hereto. The Notes may have notations, legends or endorsements required by law,
stock exchange rule, agreements to which the Company is subject, if any, or
depository rule or usage. The Company shall approve the forms of the Notes and
any notation, legend or endorsement on them. Each Note shall be dated the date
of its issuance and shall show the date of its authentication.
(b) The terms and provisions contained in the Appendix and in
the forms of the Notes, annexed hereto as Exhibits A and B, shall constitute,
and are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
SECTION 2.02. Execution and Authentication; Aggregate Principal
-------------------------------------------------
Amount.
------
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary (each
of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for the Company by manual or
facsimile signature. The Company's seal shall also be reproduced on the Notes.
If an Officer or Assistant Secretary whose signature is on a
Note was an Officer or Assistant Secretary at the time of such execution but no
longer holds that office or position at the time the Trustee authenticates the
Note, the Note shall nevertheless be valid.
On March 29, 2001, the Trustee shall authenticate and deliver
$300.0 million of 10 3/8% Senior Subordinated Notes due 2011 in the form of
Initial Notes. In addition, the Trustee shall authenticate Exchange Notes and
Private Exchange Notes, as applicable, for original issue in the aggregate
principal amount not to exceed $300.0 million, in each case upon a written order
of the Company in the form of an Officers' Certificate, provided that such
23
Exchange Notes and Private Exchange Notes shall be issuable only upon the valid
surrender for cancellation of such Initial Notes of a like aggregate principal
amount. Further, at any time and from time to time thereafter, the Trustee shall
authenticate and deliver Notes for original issue in an aggregate principal
amount specified, in each case in a written order of the Company in the form of
an Officers' Certificate. Such order shall specify the amount of the Notes to be
authenticated and the date on which the original issue of Notes is to be
authenticated and, in the case of an issuance of Additional Notes pursuant to
Section 2.15 after March 29, 2001, shall certify that such issuance will not be
prohibited by Section 4.13.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee may appoint an authenticating agent (the
"Authenticating Agent") reasonably acceptable to the Company to authenticate
Notes. Unless otherwise provided in the appointment, an Authenticating Agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
Authenticating Agent. An Authenticating Agent has the same rights as an Agent to
deal with the Company and Affiliates of the Company.
The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain or designate an office or agency
(which shall be located in the Borough of Manhattan in the City of New York,
State of New York and which may be the office of the Trustee) where (a) Notes
may be presented or surrendered for registration of transfer or for exchange
("Registrar"), (b) Notes may be presented or surrendered for payment ("Paying
Agent") and (c) notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company may have one or more
co-Registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional Paying Agent. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar, except that for purposes of Articles Three and
Eight and Sections 4.16 and 4.17, neither the Company nor any of its
Subsidiaries or Affiliates shall act as Paying Agent. The Company may change any
Paying Agent or Registrar without notice to any Holder.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which agreement shall incorporate
the provisions of the TIA and implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such.
24
The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of demands and notices in connection with the
Notes, until such time as the Trustee has resigned or a successor has been
appointed. The Paying Agent or Registrar may resign upon 30 days notice to the
Company.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
------------------------------------
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all assets held by the Paying Agent for
the payment of principal of, or interest on, the Notes (whether such assets have
been distributed to it by the Company or any other obligor on the Notes), and
the Company and the Paying Agent shall notify the Trustee of any Default by the
Company (or any other obligor on the Notes) in making any such payment. The
Company at any time may require a Paying Agent to distribute all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may, and
upon direction of a majority of the Holders shall, at any time during the
continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Company or any other obligor on the
Notes to the Paying Agent, the Paying Agent shall have no further liability for
such assets.
SECTION 2.05. Noteholder Lists.
----------------
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Holders, and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish or cause the
Registrar to furnish to the Trustee before each Record Date and at such other
times as the Trustee may request in writing a list as of such date and in such
form as the Trustee may reasonably require of the names and addresses of the
Holders, which list may be conclusively relied upon by the Trustee and the
Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. [Intentionally Omitted]
SECTION 2.07. Replacement Notes.
-----------------
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, subject to the terms of the next succeeding sentence, the Company shall
issue and the Trustee shall authenticate a replacement Note if the Trustee's
reasonable requirements for replacement Notes are met. If required by the
Trustee or the Company, such Holder must provide an affidavit of lost
certificate and an indemnity bond or other indemnity, sufficient in the judgment
of both the Company and the Trustee, to protect the Company, the Trustee, any
Agent or any Authenticating Agent from any loss which any of them may suffer if
a Note is replaced. The Company and the Trustee may charge such Holder for their
out-of-pocket expenses in replacing a Note, including reasonable
25
fees and expenses of counsel, and for any tax that may be imposed in replacing
such Notes. Every replacement Note shall constitute an additional obligation of
the Company.
SECTION 2.08. Outstanding Notes.
-----------------
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. Subject
to the provisions of Section 2.09, a Note does not cease to be outstanding
because the Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.07.
Except as otherwise provided in Article 8 of this Indenture,
if on a Redemption Date or the Maturity Date the Paying Agent holds U.S. Legal
Tender or U.S. Government Obligations sufficient to pay all of the principal and
interest due on the Notes payable on that date and is not prohibited from paying
such money to the Holders thereof pursuant to the terms of this Indenture, then
on and after that date such Notes cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.09. Treasury Notes.
--------------
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver, consent or notice,
Notes owned by the Company or any of its Affiliates shall be considered as
though they are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver,
consent or notice, only Notes which a Trust Officer of the Trustee actually
knows are so owned shall be so considered.
SECTION 2.10. Temporary Notes.
---------------
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon receipt of a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be authenticated.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate upon receipt of a written order of the Company pursuant to Section
2.02 definitive Notes in exchange for, and
26
upon surrender of, temporary Notes. Until so exchanged, the temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
definitive Notes authenticated and delivered hereunder.
SECTION 2.11. Cancellation.
------------
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel and, at the written direction of the Company, shall dispose
of all Notes surrendered for transfer, exchange, payment or cancellation.
Subject to Section 2.07, the Company may not issue new Notes to replace Notes
that it has paid or delivered to the Trustee for cancellation. If the Company
shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Notes unless
and until the same are surrendered to the Trustee for cancellation pursuant to
this Section 2.11.
SECTION 2.12. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Notes
(without regard to any grace period therefor), it shall pay the defaulted
interest, plus (to the extent lawful) any interest payable on the defaulted
interest to the Persons who are Holders on a subsequent special record date,
which date shall be the fifteenth day preceding the date fixed by the Company
for the payment of defaulted interest or the next succeeding Business Day if
such date is not a Business Day. At least 15 days before the subsequent special
record date, the Company shall mail to each Holder, as of a recent date selected
by the Company, with a copy to the Trustee, a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP Number.
------------
The Company in issuing the Notes may use "CUSIP" numbers, and
if so, the Trustee shall use such CUSIP numbers in notices of redemption or
exchange as a convenience to Holders; provided that no representation is hereby
deemed to be made by the Trustee as to the correctness or accuracy of such CUSIP
numbers printed in the notice or on the Notes, and that reliance may be placed
only on the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in a CUSIP number.
SECTION 2.14. Deposit of Moneys.
-----------------
Prior to 9:00 a.m. New York City time on each Interest Payment
Date and on the Maturity Date, the Company shall deposit with the Paying Agent
in immediately available funds money sufficient to make cash payments, if any,
due on such Interest Payment Date or Maturity Date, as the case may be, in a
timely manner which permits the Paying Agent to remit payment to the Holders on
such Interest Payment Date or Maturity Date, as the case may be.
27
SECTION 2.15. Issuance of Additional Notes.
----------------------------
The Company shall be entitled to issue Additional Notes under
this Indenture in a principal amount not to exceed $300,000,000 in the aggregate
which shall have identical terms as the Notes issued on March 29, 2001, other
than with respect to the date of issuance, issue price and amount of interest
payable on the first payment date applicable thereto (and, if such Additional
Notes shall be issued in the form of Exchange Notes, other than with respect to
transfer restrictions); provided, that such issuance is not prohibited by
Section 4.13. The Initial Notes issued on March 29, 2001, any Additional Notes
and all Exchange Notes or Private Exchange Notes issued in exchange therefor
shall be treated as a single class for all purposes under this Indenture.
With respect to any Additional Notes, the Company shall set
forth in a resolution of the Board of Directors and in an Officers' Certificate,
a copy of each which shall be delivered to the Trustee, the following
information:
(1) the aggregate principal amount of such Additional Notes
to be authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP number of
such Additional Notes and the amount of interest payable on the first
payment date applicable thereto; provided, however, that no Additional
Notes may be issued at a price that would cause such Additional Notes
to have "original issue discount" within the meaning of Section 1273 of
the Code; and
(3) whether such Additional Notes shall be transfer restricted
securities and issued in the form of Initial Notes or shall be
registered securities issued in the form of Exchange Notes as set forth
in the Appendix.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Notes pursuant to Section 3.07
of this Indenture and Paragraph 6 of the Notes, it shall notify the Trustee and
the Paying Agent in writing of the Redemption Date and the principal amount of
the Notes to be redeemed.
The Company shall give each notice provided for in this
Section 3.01 at least 45 days before the Redemption Date (unless a shorter
notice period shall be satisfactory to the Trustee, as evidenced in a writing
signed on behalf of the Trustee), together with an Officers'
28
Certificate stating that such redemption shall comply with the conditions
contained herein and in the Notes.
SECTION 3.02. Selection of Notes To Be Redeemed.
---------------------------------
If fewer than all of the Notes are to be redeemed, selection
of the Notes to be redeemed will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not then listed on a national securities
exchange, on a pro rata basis, by lot or in such other fair and reasonable
manner chosen at the discretion of the Trustee; provided, however, that if a
partial redemption is made with the proceeds of a Public Equity Offering,
selection of the Notes or portion thereof for redemption shall be made by the
Trustee only on a pro rata basis, unless such method is otherwise prohibited.
The Company shall promptly notify the Trustee and the Paying Agent in writing of
the date of listing and the name of the securities exchange if and when the
Notes are listed on a principal national securities exchange. The Trustee shall
make the selection from the Notes outstanding and not previously called for
redemption and shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes in denominations
of $1,000 may be redeemed only in whole. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the principal of
Notes that have denominations larger than $1,000. Provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes called
for redemption.
SECTION 3.03. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed a notice of redemption by
first class mail, postage prepaid, to each Holder whose Notes are to be
redeemed, with a copy to the Trustee and any Paying Agent. At the Company's
written request no less than 35 days prior to the Redemption Date (or such
shorter period as may be acceptable to the Trustee), the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense.
Each notice for redemption shall identify the Notes to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued
interest, if any, to be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to which such
redemption is being made;
29
(5) that Notes called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price plus accrued
interest, if any;
(6) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the
Holders of such Notes is to receive payment of the Redemption Price
plus accrued interest, if any, upon surrender to the Paying Agent of
the Notes redeemed;
(7) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Note, a new Note or Notes
in the aggregate principal amount equal to the unredeemed portion
thereof will be issued;
(8) if fewer than all the Notes are to be redeemed, the
aggregate principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such partial
redemption and, if the redemption is not made pro rata, the
identification of the particular Notes (or portion thereof) to be
redeemed; and
(9) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
SECTION 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section
3.03, Notes called for redemption become due and payable on the Redemption Date
and at the Redemption Price plus accrued interest, if any. Upon surrender to the
Trustee or Paying Agent, such Notes called for redemption shall be paid at the
Redemption Price and the amount of accrued interest payable thereon, provided
that if a Note is redeemed on or after a Record Date for an interest payment but
on or prior to the related Interest Payment Date, then any accrued and unpaid
interest shall be paid to the Holder of record at the close of business on such
Record Date. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
Except in connection with a defeasance pursuant to Section
8.02 of this Indenture, at any time prior to the mailing of a notice of
redemption to the Holders pursuant to Section 3.03, the Company may withdraw,
revoke or rescind any notice of redemption delivered to the Trustee without any
continuing obligation to redeem the Notes.
SECTION 3.05. Deposit of Redemption Price.
---------------------------
On or before 9:00 a.m. New York City time on the Redemption
Date, the Company shall deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the Redemption Price plus accrued interest, if any, of all
Notes to be redeemed on that date (other than Notes or portions of Notes called
for redemption which have been delivered by the
30
Company to the Trustee for cancellation). The Paying Agent shall promptly return
to the Company any U.S. Legal Tender so deposited which is not required for that
purpose, except with respect to monies owed as obligations to the Trustee
pursuant to Article Seven.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price plus accrued
interest, if any, interest on the Notes to be redeemed will cease to accrue on
and after the applicable Redemption Date, whether or not such Notes are
presented for payment.
SECTION 3.06. Notes Redeemed in Part.
----------------------
Upon surrender of a Note that is to be redeemed in part, the
Company shall execute and the Trustee shall authenticate for the Holder a new
Note or Notes equal in principal amount to the unredeemed portion of the Note
surrendered.
SECTION 3.07. Optional Redemption.
-------------------
(a) Except as set forth in paragraph (b) below, the Notes will
not be redeemable at the option of the Company prior to April 1, 2006.
Thereafter, the Notes will be redeemable, at the Company's option, in whole or
in part, at any time or from time to time, at the following redemption prices
(expressed in percentages of principal amount), plus accrued interest to the
Redemption Date (subject to the right of Holders of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date), if
redeemed during the 12-month period commencing on April 1 of the years set forth
below:
Redemption
Period Price
------ -------------
2006 ............................................... 105.188 %
2007 ............................................... 103.458 %
2008 ............................................... 101.729 %
2009 and thereafter ................................ 100.000 %
(b) In addition, at any time and from time to time prior to
April 1, 2004, the Company may redeem in the aggregate up to 33.3% of the
original principal amount of the Notes (including the original principal amount
of any Additional Notes) with the proceeds of one or more Public Equity
Offerings, at a redemption price (expressed as a percentage of principal amount)
of 110.375% plus accrued interest to the Redemption Date (subject to the right
of Holders of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date); provided, however, that at least 65% of the
aggregate principal amount of the Notes originally outstanding (including the
original principal amount of any Additional Notes) must remain outstanding after
each such redemption.
31
In order to effect the foregoing redemption with the proceeds
of any Public Equity Offering, the Company shall make such redemption not more
than 120 days after the consummation of any such Public Equity Offering.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
----------------
The Company shall pay or cause to be paid the principal of and
interest on the Notes on the dates and in the manner provided in the Notes and
in this Indenture. An installment of principal of or interest on the Notes shall
be considered paid on the date it is due if the Trustee or Paying Agent (other
than the Company or an Affiliate of the Company) holds on that date U.S. Legal
Tender designated for and sufficient to pay the installment in full and is not
prohibited from paying such money to the Holders pursuant to the terms of this
Indenture.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
SECTION 4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 13.02.
SECTION 4.03. Corporate Existence.
-------------------
Except as otherwise permitted by Article Five and Section
4.16, the Company shall do or cause to be done, at its own cost and expense, all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate existence of each of its Restricted Subsidiaries in
accordance with the respective organizational documents of each of them (as the
same may be amended from time to time) and the material rights (charter and
statutory) and franchises of the Company and each such Restricted Subsidiary;
provided, however, that neither the Company nor any Restricted Subsidiary shall
be required to preserve any right or franchise, or the corporate, partnership or
other existence of any Restricted Subsidiary, if the Board of Directors of the
Company shall reasonably determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole.
32
SECTION 4.04. Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or any of
its Subsidiaries or properties of it or any of its Subsidiaries and (ii) all
lawful claims for labor, materials and supplies that, if unpaid, might by law
become a Lien upon the property of it or any of its Subsidiaries; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted for which reserves, to
the extent required under and in accordance with GAAP, have been taken.
SECTION 4.05. Maintenance of Properties and Insurance.
---------------------------------------
(a) The Company shall, and shall cause each of its Restricted
Subsidiaries to, maintain its material properties in good working order and
condition (subject to ordinary wear and tear) and make all necessary repairs,
renewals, replacements, additions, betterments and improvements thereto and
actively conduct and carry on its business; provided, however, that nothing in
this Section 4.05 shall prevent the Company or any of its Restricted
Subsidiaries from discontinuing the operation and maintenance of any of its
properties, if such discontinuance is, in the reasonable good faith judgment of
the Company or the Restricted Subsidiary, as the case may be, desirable in the
conduct of the business of the Company and its Restricted Subsidiaries, taken as
a whole.
(b) The Company shall provide or cause to be provided, for
itself and each of its Restricted Subsidiaries, insurance (including reasonably
appropriate self-insurance consistent with past practice) against loss or damage
of the kinds that, in the good faith judgment of the Board of Directors of the
Company, are adequate and appropriate for the conduct of the business of the
Company and such Restricted Subsidiaries in a prudent manner, with reputable
insurers or with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be customary, in the reasonable good faith judgment of the
Board of Directors of the Company, for companies similarly situated in the
industry.
SECTION 4.06. Compliance Certificate; Notice of Default.
-----------------------------------------
(a) The Company shall deliver to the Trustee, within 120 days
after the end of the Company's fiscal year, an Officers' Certificate stating
that a review of its activities and the activities of its Subsidiaries during
the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
such Officer's knowledge, based on such review, the Company during such
preceding fiscal year has kept, observed, performed and fulfilled each and every
such covenant contained in the Indenture and no Default or Event
33
of Default occurred during such year and at the date of such certificate there
is no Default or Event of Default that has occurred and is continuing or, if
such signers do know of such Default or Event of Default, the certificate shall
describe the Default or Event of Default and its status with particularity. The
Officers' Certificate shall also notify the Trustee should the Company elect to
change the manner in which it fixes its fiscal year end.
(b) So long as not contrary to the then-current
recommendations of the American Institute of Certified Public Accountants, the
annual financial statements delivered pursuant to Section 4.08 shall be
accompanied by a written report of the Company's independent accountants (who
shall be a firm of established national reputation) that in conducting their
audit of such financial statements nothing has come to their attention that
would lead them to believe that the Company has violated any provisions of
Article Four or Five of this Indenture or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee, at its address set forth in Section 13.02 hereof,
by registered or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action within five Business Days of its
becoming aware of such occurrence.
SECTION 4.07. Compliance with Laws.
--------------------
The Company shall comply, and shall cause each of its
Restricted Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of America, all states
and municipalities thereof, and of any governmental department, commission,
board, regulatory authority, bureau, agency and instrumentality of the
foregoing, in respect of the conduct of their respective businesses and the
ownership of their respective properties, except for such noncompliances as are
not in the aggregate reasonably likely to have a material adverse effect on the
financial condition or results of operations of the Company and its Restricted
Subsidiaries, taken as a whole.
SECTION 4.08. SEC Reports.
-----------
(a) So long as the Notes are outstanding, the Company (at its
own expense) shall file with the SEC and shall provide to the Trustee and the
Holders within 15 days after it files them with the SEC copies of the quarterly
and annual reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) filed pursuant to Section 13 or 15(d) of the Exchange Act
(without regard to whether the Company is subject to the requirements of such
Section 13 or 15(d) of the Exchange Act); provided that (i) the Company shall
not be in default of the provisions of this Section 4.08 by reason of the
failure to file reports with the SEC (which
34
reports are in the reasonable opinion of counsel to the Company responsive in
all material respects to the applicable requirements of the Exchange Act) solely
by reason of the refusal of the SEC to accept the same for filing and (ii) prior
to the consummation of an Exchange Offer and the issuance of the Exchange Notes,
the Company (at its own expense) will mail to the Trustee and Holders
substantially the same information that would have been required by such
Sections within 15 days of when any such document would otherwise have been
required to be filed with the SEC. Upon qualification of this Indenture under
the TIA, the Company shall also comply with the provisions of the TIA Section
314(a).
(b) The Company shall provide to any Holder any information
reasonably requested by such Holder concerning the Company (including financial
statements) necessary in order to permit such Holder to sell or transfer Notes
in compliance with Rule 144A under the Securities Act.
SECTION 4.09. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.10. Limitation on Restricted Payments.
---------------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, (i) declare or pay any dividend or make
any distribution on or in respect of its Capital Stock (including any payment in
connection with any merger or consolidation involving the Company) or to the
direct or indirect holders of its Capital Stock in their capacities as such
(except dividends or distributions payable solely in Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to purchase its
Capital Stock (other than Disqualified Stock) and except dividends or
distributions payable to the Company or a Restricted Subsidiary (and, if the
Restricted Subsidiary making such dividends or distributions has any
stockholders other than the Company or another Restricted Subsidiary, to such
stockholders on no more than a pro rata basis, measured by value)), (ii)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the Company, any Restricted Subsidiary or any other Affiliate of the Company,
(iii) purchase, repurchase, redeem, defease or otherwise acquire or retire for
value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment, any Subordinated Obligations or (iv) make any Restricted
Investment (any such dividend, distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or Restricted Investment being herein
referred to as a "Restricted
35
Payment") if at the time the Company or such Restricted Subsidiary makes such
Restricted Payment: (1) a Default shall have occurred and be continuing (or
would result therefrom); or (2) the Company would not be permitted to issue an
additional $1.00 of Indebtedness pursuant to paragraph (a) under Section 4.13
after giving pro forma effect to such Restricted Payment; or (3) the aggregate
amount of such Restricted Payment and all other Restricted Payments since March
31, 1998 would exceed the sum of: (A) 50% of the Consolidated Net Income accrued
during the period (treated as one accounting period) from the beginning of the
first full fiscal quarter commencing after March 31, 1998 to the end of the most
recent fiscal quarter for which financial statements are available (or, in case
such Consolidated Net Income shall be a deficit, minus 100% of such deficit)
plus (B) the aggregate Net Cash Proceeds received by the Company from (x) the
issue or sale of its Capital Stock (other than Disqualified Stock) subsequent to
March 31, 1998 (other than an issuance or sale to a Subsidiary or an employee
stock ownership plan or similar trust in the benefit of employees) and (y) the
issue or sale (other than an issuance or sale to a Subsidiary or an employee
stock ownership plan or similar trust in the benefit of employees) after March
31, 1998 of Disqualified Stock or debt securities that have been converted or
exchanged in accordance with their terms for Capital Stock of the Company (other
than Disqualified Stock), in each case to the extent such proceeds are not used
to redeem, repurchase, retire or otherwise acquire Capital Stock or any
Indebtedness of the Company or any Restricted Subsidiary or to make any
Investment pursuant to clause (viii) of the definition of "Permitted
Investment."
(b) The provisions of clauses (2) and (3) of paragraph (a)
shall not prohibit: (1) any purchase or redemption of Capital Stock or
Subordinated Obligations of the Company made by exchange for, or out of the
proceeds of the substantially concurrent sale or issuance of, Capital Stock of
the Company (other than Disqualified Stock and other than Capital Stock issued
or sold to a Subsidiary or an employee stock ownership plan); provided, however,
that the Net Cash Proceeds from such sale shall be excluded from clause (3)(B)
of paragraph (a) above; (2) dividends paid within 60 days after the date of
declaration if at such date of declaration such dividend would have complied
with this provision; provided, however, that such dividend shall be deducted in
the calculation of the amount of Restricted Payments available to be made
referred to in clause (3) of paragraph (a) above; (3) the repurchase of shares
of, or options to purchase shares of, Capital Stock of the Company or any of its
Subsidiaries from employees, former employees, directors or former directors of
the Company or any of its Subsidiaries (or permitted transferees of such
employees, former employees, directors or former directors), pursuant to the
terms of the agreements (including employment agreements) or plans (or
amendments thereto) approved by the Board of Directors under which such
individuals purchase or sell or are granted the option to purchase or sell,
shares of such common stock; provided, however, that the aggregate amount of any
repurchases pursuant to this clause (3) and any purchases pursuant to clause (4)
below shall not exceed $500,000 per year or $3.5 million in the aggregate on or
after March 31, 1998; (4) provided that no Default or Event of Default shall
have occurred or be continuing at the time of such payment or after giving
effect thereto, the purchase by the Company of shares of its common stock (for
not more than fair market value) in connection with the delivery of such stock
to grantees under any stock option plan (upon the exercise by such grantees of
their stock options) or any other deferred compensation plan of the Company
approved by the Board of Directors; provided, however, that the aggregate amount
of
36
any purchases pursuant to this clause (4) and any repurchases pursuant to clause
(3) above shall not exceed $500,000 per year or $3.5 million in the aggregate on
or after March 31, 1998; (5) the redemption, purchase, retirement or other
payoff of any Subordinated Obligations with the proceeds of any Refinancing
Indebtedness permitted to be incurred pursuant to the terms of clauses (b)(v)
and (v), respectively, of the covenants described under Section 4.13 and Section
4.18; and (6) provided that no Default or Event of Default shall have occurred
or be continuing at the time of such payment or after giving effect thereto,
other Restricted Payments in an aggregate amount not to exceed $10 million;
provided, however, that such payment shall be deducted in the calculation of the
amount of Restricted Payments available to be made referred to in clause (3) of
paragraph (a) above.
SECTION 4.11. Limitation on Restrictions on Distributions from Restricted
-----------------------------------------------------------
Subsidiaries.
------------
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or permit to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits to the Company or a Restricted Subsidiary or pay any Indebtedness or
other obligation owed to the Company or a Restricted Subsidiary, (ii) make any
loans or advances to the Company or any other Restricted Subsidiary or (iii)
transfer any of its property or assets to the Company or any other Restricted
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of (a) the Credit Facility as in effect on March 29, 2001, and any
amendments, restatements, renewals, replacements or refinancings thereof;
provided, however, that such amendments, restatements, renewals, replacements or
refinancings are no more restrictive with respect to such dividend and other
payment restrictions than those contained in the Credit Facility (or, if more
restrictive, than those contained in this Indenture) immediately prior to any
such amendment, restatement, renewal, replacement or refinancing, (b) applicable
law, (c) any instrument governing Indebtedness or Capital Stock of an Acquired
Person acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such Indebtedness
was incurred in connection with or in contemplation of such acquisition);
provided, however, that (1) such restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Acquired Person, and (2)
the consolidated net income of an Acquired Person for any period prior to such
acquisition shall not be taken into account in determining whether such
acquisition was permitted by the terms of the Indenture, (d) by reason of
customary non-assignment provisions in leases or other agreements entered into
the ordinary course of business and consistent with past practices, (e) Purchase
Money Indebtedness for property acquired in the ordinary course of business that
only impose restrictions on the property so acquired, (f) an agreement for the
sale or disposition of the Capital Stock or assets of such Restricted
Subsidiary; provided, however, that such restriction is only applicable to such
Restricted Subsidiary or assets, as applicable, and such sale or disposition
otherwise is permitted under Section 4.17 below; provided, further, however,
that such restriction or encumbrance shall be effective only for a period from
the execution and delivery of such agreement through a termination date not
later than 270 days after such execution and delivery, or (g) Refinancing
Indebtedness permitted under the Indenture;
37
provided, however, that the restrictions contained in the agreements governing
such Refinancing Indebtedness are no more restrictive in the aggregate than
those contained in the agreements governing the Indebtedness being refinanced
immediately prior to such refinancing. Notwithstanding the foregoing, neither
(a) customary provisions restricting subletting or assignment of any lease
entered into in the ordinary course of business, consistent with past practice,
nor (b) Liens permitted under the Indenture, shall in and of themselves be
considered a restriction on the ability of the applicable Restricted Subsidiary
to transfer such agreements or assets, as the case may be.
SECTION 4.12. Limitation on Affiliate Transactions.
------------------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, conduct any business or enter into any
transaction or series of similar transactions (including the purchase, sale,
lease or exchange of any asset or property or the rendering of any service) with
any Affiliate of the Company (other than any employee stock ownership plan for
the benefit of the Company's or a Restricted Subsidiary's employees) unless the
terms of such business, transaction or series of transactions are (i) set forth
in writing, (ii) as favorable to the Company or such Restricted Subsidiary as
terms that would be obtainable at the time for a comparable transaction or
series of similar transactions in arms' length dealings with an unrelated third
Person and (iii) a majority of the disinterested members of the Board of
Directors have, by resolution, determined in good faith that such business or
transaction or series of transactions meets the criteria set forth in (ii)
above; provided, however, that if such transaction involves an amount in excess
of $10 million, the Company shall also obtain from a nationally recognized
independent investment banking firm, accounting firm or appraisal firm with
experience in evaluating the terms and conditions of such type of business or
transactions an opinion that such transaction is fair from a financial point of
view to the Company or its Restricted Subsidiary, as the case may be; provided,
further, however, that the provisions of both clause (iii) above and the
preceding proviso shall not apply with respect to any such business, transaction
or series of related transactions between the Company and any Restricted
Subsidiary, which business, transaction or series of transactions is entered
into in the ordinary course of business.
(b) The provisions of the foregoing paragraph (a) shall not
prohibit (i) any Restricted Payment permitted to be made pursuant to the
covenant described under Section 4.10, or any payment or transaction
specifically excepted from the definition of Restricted Payment, (ii) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans entered into in the ordinary course of
business and approved by a majority of the entire Board of Directors or by a
majority of the disinterested members of the Board of Directors or a majority of
the entire board of directors or a majority of the disinterested members of the
board of directors of the relevant Restricted Subsidiary, (iii) the grant of
stock options or similar rights to employees and directors pursuant to plans
approved by a majority of the entire Board of Directors or by a majority of the
disinterested members of the Board of Directors or a majority of the entire
board of directors or a majority of the disinterested members of the board of
directors of the relevant Restricted Subsidiary, (iv) loans or advances
38
to officers, directors or employees in the ordinary course of business, (v) the
payment of reasonable fees to directors of the Company and its Restricted
Subsidiaries who are not employees of the Company or its Restricted
Subsidiaries, (vi) any Affiliate transaction between the Company and a
Subsidiary Guarantor, between Subsidiary Guarantors, or between Restricted
Subsidiaries which are both not Subsidiary Guarantors, (vii) indemnification or
insurance provided to officers or directors of the Company or any Subsidiary
approved in good faith by the Board of Directors; (viii) payment of compensation
and benefits to directors, officers and employees of the Company and its
Subsidiaries approved in good faith by the Board of Directors; and (ix) the
purchase of or the payment of Indebtedness of or monies owed by the Company or
any of its Restricted Subsidiaries for goods or materials purchased, or services
received, in the ordinary course of business.
SECTION 4.13. Limitation on Indebtedness.
--------------------------
(a) The Company shall not Incur, directly or indirectly, any
Indebtedness (including Acquired Indebtedness) unless, on the date of such
Incurrence, and after giving pro forma effect thereto, (i) no Default or Event
of Default shall have occurred and be continuing or would occur and (ii) the
Consolidated Cash Flow Coverage Ratio at the date of such issuance exceeds 2.0
to 1.0.
(b) Notwithstanding paragraph (a), the Company may Incur the
following Indebtedness: (i) Indebtedness Incurred pursuant to the Credit
Facility, together with all Indebtedness then outstanding and Incurred pursuant
to clause (i) of Section 4.18 below, not to exceed in outstanding principal
amount the greater of (1) $950 million at any time outstanding and (2) the sum
of (x) 80% of the consolidated book value of the net accounts receivable of the
Company and (y) 50% of the consolidated book value of the inventory of the
Company, in each case determined in accordance with GAAP; (ii) Indebtedness owed
to and held by a Restricted Subsidiary; provided, however, that any subsequent
issuance or transfer of any Capital Stock that results in such Subsidiary
ceasing to be a Restricted Subsidiary, or any transfer of such Indebtedness
(other than to a Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Indebtedness by the Company; (iii) the Notes
(other than Additional Notes); (iv) Indebtedness (other than Indebtedness
described in clause (i), (ii), or (iii) above) outstanding on March 29, 2001
(including the Existing Notes); (v) any Refinancing Indebtedness in respect of
Indebtedness Incurred pursuant to paragraph (a) or pursuant to clause (iii),
(iv) or (viii) or this clause (v) or pursuant to clause (v) of the covenant
described under Section 4.18 below; (vi) obligations of the Company pursuant to
(A) Interest Rate Protection Agreements in respect of Indebtedness of the
Company that is permitted by the terms of the Indenture to be outstanding to the
extent the notional principal amount of such obligation does not exceed the
aggregate principal amount of the Indebtedness to which such Interest Rate
Protection Agreements relate, (B) Currency Agreement Obligations in respect of
foreign exchange exposures Incurred by the Company in the ordinary course of its
business and (C) commodity agreements of the Company to the extent entered into
in the ordinary course of business to protect the Company from fluctuations in
the prices of raw materials used in its business; (vii) Indebtedness of the
Company consisting of obligations in respect of purchase price adjustments in
connection with the acquisition or disposition of assets by the Company
39
or any Restricted Subsidiary permitted under the Indenture; (viii) Capital Lease
Obligations, Purchase Money Indebtedness and Acquired Indebtedness (to the
extent not Incurred in connection with, or in anticipation or contemplation of,
the relevant transaction) in an aggregate principal amount, together with the
principal amount of Indebtedness Incurred pursuant to clause (ix) of Section
4.18, not exceeding $15 million at any one given time outstanding; (ix)
performance bonds, surety bonds, insurance obligations or bonds and other
similar bonds or obligations incurred by the Company in the ordinary course of
business consistent with past practice; (x) Floor Plan Guarantees; (xi)
Indebtedness Incurred pursuant to the terms of the outstanding Common Stock
Appreciation Rights, as such terms were in effect on March 29, 2001; and (xii)
Indebtedness in an aggregate principal amount which, together with all other
Indebtedness of the Company then outstanding (other than Indebtedness permitted
by paragraph (a) or clauses (i) through (xi) of this paragraph) does not exceed
$5 million (less the amount of any Subsidiary Indebtedness and Preferred Stock
then outstanding and Incurred pursuant to clause (xii) of Section 4.18).
(c) Except to the extent that such Indebtedness is permitted
to be incurred pursuant to paragraphs (a) and (b) above and the provisions of
Section 4.18, the Company shall not, and shall not permit any Restricted
Subsidiary to, Incur any Indebtedness if the proceeds thereof are used, directly
or indirectly, to repay, prepay, redeem, defease, retire, refund or refinance
any Subordinated Obligations unless such Indebtedness shall be subordinated to
the Notes or the relevant Subsidiary Guarantee, as applicable, to at least the
same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with the covenants
set forth in this Section 4.13 and Section 4.18, in the event that an item of
Indebtedness meets the criteria of more than one of the types of Indebtedness
described above, the Company, in its sole discretion, will classify such item of
Indebtedness and only be required to include the amount and type of such
Indebtedness in one of the above clauses.
(e) For purposes of determining amounts of Indebtedness under
the covenants set forth in this Section 4.13 and Section 4.18, Indebtedness
resulting from security interests granted with respect to Indebtedness otherwise
included in the determination of Indebtedness, and Guarantees (and security
interests with respect thereof) of, or obligations with respect to letters of
credit supporting, Indebtedness otherwise included in the determination of
Indebtedness shall not be included in the determination of Indebtedness.
(f) Indebtedness of any Person which is outstanding at the
time such Person becomes a Restricted Subsidiary of the Company (including upon
designation of any subsidiary or other person as a Restricted Subsidiary) or is
merged with or into or consolidated with the Company or a Restricted Subsidiary
of the Company shall be deemed to have been Incurred at the time such Person
becomes such a Restricted Subsidiary of the Company or merged with or into or
consolidated with the Company or a Restricted Subsidiary of the Company, as
applicable.
40
SECTION 4.14. Limitation on the Sale or Issuance of Capital Stock of
------------------------------------------------------
Restricted Subsidiaries.
-----------------------
The Company shall not sell or otherwise dispose of any Capital
Stock of a Restricted Subsidiary, and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell or otherwise dispose of any
of its Capital Stock except (i) to the Company or a Wholly Owned Subsidiary,
(ii) if, immediately after giving effect to such issuance, sale or other
disposition, neither the Company nor any of its Subsidiaries own any Capital
Stock of such Restricted Subsidiary, (iii) Preferred Stock of a Subsidiary
Guarantor, or (iv) directors' qualifying shares.
SECTION 4.15. Limitation on Other Senior Subordinated Indebtedness.
----------------------------------------------------
The Company will not, and will not permit any Restricted
Subsidiary to, create, Incur, assume, guarantee or in any other manner become
liable with respect to any Indebtedness that is subordinate in right of payment
to any Senior Indebtedness of the Company or any such Restricted Subsidiary,
unless such Indebtedness (a) is in the form of Additional Notes, in which case
this covenant will not apply, or (b) (i) has a maturity date subsequent to the
Stated Maturity of the Notes and an Average Life longer than that of the Notes
and (ii) is also pari passu with, or subordinate in right of payment to, the
Notes or the relevant Subsidiary Guarantee, as the case may be.
SECTION 4.16. Change of Control.
-----------------
(a) Upon a Change of Control, each Holder shall have the right
to require that the Company repurchase all or any part of such Holder's Notes at
a purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase (subject to the
right of Holders of record on a record date to receive interest on the relevant
interest payment date), in accordance with the terms contemplated in Section
4.16(b). If at the time of such Change of Control the terms of the Senior
Indebtedness of the Company restrict or prohibit the repurchase of Notes
pursuant to this Section, then prior to the mailing of the notice to Holders
provided for in Section 4.16(b) below but in any event within 90 days following
any Change of Control, the Company shall obtain the requisite consent under the
agreements governing such Senior Indebtedness of the Company to permit the
repurchase of the Notes as provided for in Section 4.16(b).
(b) Within 15 Business Days following any Change of Control,
the Company shall mail a notice to the Trustee and each Holder stating:
(1) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase such Holder's Notes at
a purchase price in cash equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant record date
to receive interest on the relevant interest payment date);
41
(2) the circumstances and relevant facts regarding such Change
of Control (including information with respect to pro forma historical
income, cash flow and capitalization, each after giving effect to such
Change of Control);
(3) the repurchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(4) the instructions determined by the Company, consistent
with this Section, that a Holder must follow in order to have its Notes
purchased.
(c) Holders electing to have a Note purchased will be required
to surrender the Note, with an appropriate form (as provided for in Exhibit A or
B, as appropriate) duly completed, to the Company at the address specified in
the notice not later than 3 p.m. New York City time two Business Days prior to
the purchase date. Holders will be entitled to withdraw their election if the
Trustee or the Company receives not later than 3 p.m. New York City time two
Business Day prior to the purchase date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note which was delivered for purchase by the Holder and a
statement that such Holder is withdrawing his election to have such Note
purchased.
(d) On the purchase date, all Notes purchased by the Company
under this Section shall be delivered to the Trustee for cancellation, and the
Company shall pay or cause to be paid the purchase price plus accrued and unpaid
interest, if any, to the Holders entitled thereto.
(e) At the time the Company delivers Notes to the Trustee
which are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Notes are to be accepted by the Company
pursuant to and in accordance with the terms of this Section. A Note shall be
deemed to have been accepted for purchase at the time the Trustee, directly or
through an agent, mails or delivers payment therefor to the surrendering Holder.
(f) The Company shall comply in all material respects, to the
extent applicable, with the requirements of Section 14(e) of the Exchange Act
and any other securities laws or regulations in connection with the repurchase
of Notes pursuant to this Section. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section by
virtue thereof.
SECTION 4.17. Limitation on Sales of Assets and Subsidiary Stock.
--------------------------------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Asset Disposition unless (i) the Company or such
Restricted Subsidiary receives consideration at the time of such Asset
Disposition at least equal to the fair market value, as determined in good faith
by the Board of Directors (including as to the value of all non-cash
consideration), of the shares and assets subject to such Asset Disposition and
at least 75% of the
42
consideration thereof received by the Company or such Restricted Subsidiary, as
the case may be, is in the form of cash or Cash Equivalents, and (ii) an amount
equal to 100% of the Net Available Cash from such Asset Disposition is applied
by the Company (or such Restricted Subsidiary, as the case may be) (A) first,
(x) to the extent the Company elects (or is required by the terms of any Senior
Indebtedness), to prepay, repay or purchase Senior Indebtedness of the Company)
within 360 days of such Asset Disposition, (y) at the Company's election to the
investment by the Company or any Wholly Owned Subsidiary or such Restricted
Subsidiary in long-term assets to replace the assets that were the subject of
such Asset Disposition or a long- term asset that (as determined in good faith
by the Board of Directors) is directly related to the business of the Company
and the Restricted Subsidiaries existing on March 29, 2001, in each case within
360 days from the date of such Asset Disposition, or (z) a combination of the
foregoing purposes within such 360-day period; (B) second, to the extent of the
balance of such Net Available Cash after application in accordance with clause
(A), to make a pro rata offer to purchase Notes at par (and, to the extent
required by the instrument governing such Indebtedness, any other Senior
Subordinated Indebtedness designated by the Company, at a price no greater than
par) plus accrued and unpaid interest, and (C) third, to the extent of the
balance of such Net Available Cash after application in accordance with clauses
(A) and (B),for general corporate purposes otherwise not prohibited under the
Indenture; provided, however, that in connection with any prepayment, repayment
or purchase of Indebtedness pursuant to clause (A) or (B) above, the Company or
such Subsidiary shall retire such Indebtedness and cause the related loan
commitment (if any) to be permanently reduced in an amount equal to the
principal amount so prepaid, repaid or purchased. Notwithstanding the foregoing
provisions of this Section, the Company and its Restricted Subsidiaries shall
not be required to apply any Net Available Cash in accordance with this Section
except to the extent that the aggregate Net Available Cash from all Asset
Dispositions (including any Asset Dispositions made since March 29, 2001) which
are not applied in accordance with this Section exceeds $10 million. Pending
application of Net Available Cash pursuant to this Section, such Net Available
Cash shall be used to temporarily reduce Senior Indebtedness or invested in Cash
Equivalents.
For the purposes of this covenant, the following is deemed to
be cash or Cash Equivalents: the express assumption of Indebtedness (other than
any Indebtedness that is by its terms subordinated to the Notes) of the Company
or any Restricted Subsidiary, but only to the extent that such assumption is
effected on a basis under which there is no further recourse to the Company or
any of the Restricted Subsidiaries with respect to such liabilities
(b) In the event of an Asset Disposition that requires the
purchase of Notes (and other Senior Subordinated Indebtedness of the Company)
pursuant to Section 4.17(a)(ii)(B), the Company shall be required to purchase
Notes tendered pursuant to an offer by the Company for the Notes (and, to the
extent required, other Senior Subordinated Indebtedness of the Company) (the
"Offer") at a purchase price of 100% of their principal amount (without premium)
plus accrued but unpaid interest (or, in respect of such other Senior
Subordinated Indebtedness of the Company, such lesser price, if any, as may be
provided for by the terms of such Senior Subordinated Indebtedness of the
Company) in accordance with the procedures (including prorating in the event of
oversubscription) set forth in Section 4.17(c). If the aggregate purchase price
of Notes (and, to the extent required, any other Senior
43
Subordinated Indebtedness of the Company) tendered pursuant to the Offer is less
than the Net Available Cash allotted to the purchase thereof, the Company shall
be required to apply the remaining Net Available Cash in accordance with Section
4.17(a)(ii)(C). The Offer shall remain open for a period of 20 Business Days.
The Company shall not be required to make an Offer to purchase Notes (and other
Senior Subordinated Indebtedness of the Company) pursuant to this Section 4.17
if the Net Available Cash available therefor is less than $10 million (which
lesser amount shall be carried forward for purposes of determining whether such
an Offer is required with respect to the Net Available Cash from any subsequent
Asset Disposition).
(c) (1) Promptly, and in any event within 30 days
after the Company becomes obligated to make an Offer, the Company shall
be obligated to deliver to the Trustee and send, by first-class mail to
each Holder, a written notice stating that the Holder may elect to have
his Notes purchased by the Company either in whole or in part (subject
to prorating as hereinafter described in the event the Offer is
oversubscribed) in integral multiples of $1,000 of principal amount, at
the applicable purchase price. The notice shall specify a purchase date
not less than 30 days nor more than 60 days after the date of such
notice (the "Purchase Date") and shall contain such information which
the Company in good faith believes will enable such Holders to make an
informed decision.
(2) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided above, the Company shall
deliver to the Trustee an Officers' Certificate as to (i) the amount of
the Offer (the "Offer Amount"), (ii) the allocation of the Net
Available Cash from the Asset Dispositions pursuant to which such Offer
is being made and (iii) the compliance of such allocation with the
provisions of Section 4.17(a). Upon the expiration of the period for
which the Offer remains open (the "Offer Period"), the Company shall
deliver to the Trustee for cancellation the Notes or portions thereof
which have been properly tendered to and are to be accepted by the
Company. The Trustee shall, on the Purchase Date, mail or deliver
payment to each tendering Holder in the amount of the purchase price.
In the event that the aggregate purchase price of the Notes delivered
by the Company to the Trustee is less than the Offer Amount, the
Trustee shall deliver the excess to the Company immediately after the
expiration of the Offer Period for application in accordance with this
Section.
(3) Holders electing to have a Note purchased shall be
required to surrender the Note, with an appropriate form duly
completed, to the Company at the address specified in the notice not
later than 3:00 p.m., New York City time, two Business Days prior to
the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than 3:00 p.m., New
York City time, two Business Days prior to the Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note which was
delivered for purchase by the Holder and a statement that such Holder
is withdrawing his election to have such Note purchased. If at the
expiration of the Offer Period the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall
select the Notes to be purchased on a pro rata basis taking into
account any other tendered Senior Subordinated Indebtedness which is
the subject of
44
such offer (with such adjustments as may be deemed appropriate by the
Company so that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased). Holders whose Notes are
purchased only in part shall be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered.
(4) At the time the Company delivers Notes to the Trustee
which are to be accepted for purchase, the Company shall also deliver
an Officers' Certificate stating that such Notes are to be accepted by
the Company pursuant to and in accordance with the terms of this
Section. A Note shall be deemed to have been accepted for purchase at
the time the Trustee, directly or through an agent, mails or delivers
payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.18. Limitation on Indebtedness and Preferred Stock of
-------------------------------------------------
Restricted Subsidiaries.
-----------------------
The Company shall not permit any Restricted Subsidiary to
Incur, directly or indirectly, any Indebtedness or Preferred Stock (except that
a Subsidiary Guarantor shall be permitted to issue Preferred Stock) except: (i)
Indebtedness Incurred pursuant to the Credit Facility, together with the
aggregate amount of all Indebtedness then outstanding and issued pursuant to
clause (b)(i) of Section 4.13 above, not to exceed in outstanding principal
amount the greater of (1) $950 million at any time outstanding and (2) the sum
of (x) 80% of the consolidated book value of the net accounts receivable of the
Company and (y) 50% of the consolidated book value of the inventory of the
Company, in each case determined in accordance with GAAP; (ii) Indebtedness or
Preferred Stock issued to and held by the Company or a Restricted Subsidiary;
provided, however, that (A) any subsequent issuance or transfer of any Capital
Stock that results in any such Subsidiary ceasing to be a Restricted Subsidiary
or (B) any subsequent transfer of such Indebtedness or Preferred Stock (other
than to the Company or a Restricted Subsidiary) shall be deemed, in each case,
to constitute the Incurrence of such Indebtedness or Preferred Stock by the
issuer thereof; (iii) Acquired Indebtedness (to the extent not Incurred in
connection with, or in anticipation or contemplation of, the relevant
transaction) of such Restricted Subsidiary; provided that after giving effect to
the Incurrence of such Acquired Indebtedness, the Company could incur $1.00 of
Indebtedness pursuant to paragraph (a) under Section 4.13; (iv) Indebtedness or
Preferred Stock (other than any described in clause (i), (ii) or (iii))
outstanding on March 29, 2001 (including Guarantees in respect of the Existing
Notes); (v) Refinancing Indebtedness Incurred in respect of Indebtedness or
Preferred Stock referred to in clause (iii), (iv) or (x) or this clause (v);
provided, however, that to the extent such Refinancing Indebtedness Refinances
Acquired Indebtedness or Preferred Stock of a Restricted Subsidiary that is not
a Wholly Owned Subsidiary, such Refinancing Indebtedness shall be
45
Incurred only by such Restricted Subsidiary; (vi) Obligations of a Restricted
Subsidiary pursuant to (A) Interest Rate Protection Agreements in respect of
Indebtedness of the Restricted Subsidiary that is permitted by the terms of the
Indenture to be outstanding to the extent the notional principal amount of such
obligation does not exceed the aggregate principal amount of the Indebtedness to
which such Interest Rate Protection Agreements relate, (B) Currency Agreement
Obligations in respect of foreign exchange exposures Incurred by the Restricted
Subsidiary in the ordinary course of its business and (C) commodity agreements
of the Restricted Subsidiary to the extent entered into in the ordinary course
of business to protect the Restricted Subsidiary from fluctuations in the prices
of raw materials used in its business; (vii) Indebtedness consisting of the
Subsidiary Guarantees (other than in respect of Additional Notes, except to the
extent that such Additional Notes were permitted to be issued under Section
4.13); (viii) Indebtedness of any Restricted Subsidiary consisting of
Obligations in respect of purchase price adjustments in connection with the
acquisition or disposition of assets by any Restricted Subsidiary permitted
under the Indenture; (ix) Capital Lease Obligations, Purchase Money Indebtedness
and Acquired Indebtedness (to the extent not Incurred in connection with, or in
anticipation or contemplation of, the relevant transaction) in an aggregate
principal amount not exceeding, together with the principal amount of
Indebtedness Incurred pursuant to clause (b)(viii) of Section 4.13, $15 million
at any one given time outstanding; (x) performance bonds, surety bonds,
insurance obligations or bonds and other similar bonds or obligations incurred
by a Restricted Subsidiary in the ordinary course of business consistent with
past practice; (xi) Floor Plan Guarantees; and (xii) Indebtedness and Preferred
Stock in an aggregate principal amount which, together with any other
Indebtedness or Preferred Stock of Restricted Subsidiaries then outstanding
(other than Indebtedness or Preferred Stock permitted by clauses (i) through
(xi) of this Section) does not exceed $5 million (less the amount of any
Indebtedness then outstanding and Incurred pursuant to clause (b)(xii) of
Section 4.13).
SECTION 4.19. Limitation on Liens Securing Subordinated Indebtedness.
------------------------------------------------------
The Company will not, and will not permit any Restricted
Subsidiary to, create, Incur, assume or suffer to exist any Liens of any kind
(other than Permitted Liens) upon any of their respective assets or properties
now owned or acquired after the date of the Indenture or any income or profits
therefrom securing (i) any Indebtedness of the Company or a Restricted
Subsidiary which is expressly by its terms subordinate or junior in right of
payment to any other Indebtedness of the Company or such Restricted Subsidiary,
as the case may be, unless the Notes or the relevant Subsidiary Guarantee, as
the case may be, are equally and ratably secured for so long as such
Indebtedness is so secured; provided that, if such Indebtedness which is
expressly by its terms subordinate or junior in right of payment to any other
Indebtedness of the Company or a Restricted Subsidiary is expressly subordinate
or junior to the Notes or the relevant Subsidiary Guarantee, as the case may be,
then the Lien securing such subordinated or junior Indebtedness shall be
subordinate and junior to the Lien securing the Notes or the relevant Subsidiary
Guarantee, as the case may be, with the same relative priority as such
subordinated or junior Indebtedness shall have with respect to the Notes or the
relevant Subsidiary Guarantee, as the case may be or (ii) any assumption,
guarantee or other liability of the Company or any Restricted Subsidiary in
respect of any Indebtedness of the Company or a Restricted Subsidiary which is
expressly by its terms subordinate or junior in right of payment
46
to any other Indebtedness of the Company or such Restricted Subsidiary, unless
the Notes or the relevant Subsidiary Guarantee, as the case may be, are equally
and ratably secured for so long as such assumption, guaranty or other liability
is so secured; provided that, if such subordinated Indebtedness which is
expressly by its terms subordinate or junior in right of payment to any other
Indebtedness of the Company or a Restricted Subsidiary is expressly by its terms
subordinate or junior to the Notes or the relevant Subsidiary Guarantee, as the
case may be, then the Lien securing the assumption, guarantee or other liability
of such Subsidiary shall be subordinate and junior to the Lien securing the
Notes or the relevant Subsidiary Guarantee, as the case may be, with the same
relative priority as such subordinated or junior Indebtedness shall have with
respect to the Notes or the relevant Subsidiary Guarantee, as the case may be.
SECTION 4.20. Future Subsidiary Guarantors.
----------------------------
The Company and each Subsidiary Guarantor shall cause each
Restricted Subsidiary of the Company organized or existing under the laws of the
United States, any state thereof or the District of Columbia of the Company
which, after ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇ not then a Subsidiary Guarantor), becomes a
Restricted Subsidiary to execute and deliver an indenture supplemental to the
Indenture and thereby become a Subsidiary Guarantor which shall be bound by the
Subsidiary Guarantee of the Notes in the form set forth in this Indenture
(without such future Subsidiary Guarantor being required to execute and deliver
the Subsidiary Guarantee endorsed on the Notes); provided, however, that no
Subsidiary meeting the requirements of this sentence which is an Inactive
Subsidiary shall be required to become a Subsidiary Guarantor hereunder unless
and until such date as such Subsidiary no longer is an Inactive Subsidiary (at
which date such Subsidiary shall, if required by the terms of this sentence,
become a Subsidiary Guarantor). In addition, the Company will not permit any
Restricted Subsidiary that is not a Subsidiary Guarantor to Guarantee any other
Indebtedness of the Company or any Subsidiary Guarantor unless such Restricted
Subsidiary simultaneously executes a supplemental indenture to the Indenture
providing for the Guarantee of the payment of the Notes by such Restricted
Subsidiary, which Guarantee of the payment of the Notes shall be subordinated to
the Guarantee of such other Indebtedness to the same extent as the Notes or the
Subsidiary Guarantees, as applicable, are subordinated to such other
Indebtedness; provided, however, that such Restricted Subsidiary shall not be
required to so Guarantee the payment of the Notes to the extent that such other
Indebtedness does not exceed $1 million individually or, together with any other
Indebtedness of the Company or any Subsidiary Guarantor Guaranteed by such
Restricted Subsidiary, $3 million in the aggregate. Such Restricted Subsidiary
shall be deemed released from its obligations under the Guarantee of the payment
of the Notes at any such time that such Restricted Subsidiary is released from
all of its obligations under its Guarantee of such other Indebtedness unless
such release results from the payment under such Guarantee of other
Indebtedness.
SECTION 4.21. Limitation on Designations of Unrestricted Subsidiaries.
-------------------------------------------------------
(a) The Company may designate any Subsidiary of the Company
(other than a Subsidiary Guarantor) as an "Unrestricted Subsidiary" (a
"Designation") only if:
47
(i) no Default shall have occurred and be continuing at
the time of or after giving effect to such Designation; and
(ii) either (x) the Company's Investment in such Subsidiary
does not exceed $1,000 or (y) the Company would be permitted under the
Indenture to make an Investment at the time of Designation (assuming
the effectiveness of such Designation) in an amount (the "Designation
Amount") equal to the fair market value of the Company's Investment in
such Subsidiary on such date.
In the event of any such Designation, the Company shall be
deemed to have made an Investment constituting a Restricted Payment pursuant to
the covenant described under Section 4.10 for all purposes of the Indenture in
the Designation Amount. The Indenture will further provide that the Company
shall not, and shall not permit any Restricted Subsidiary to, at any time (a)
provide credit support for, or a guarantee of, any Indebtedness of any
Unrestricted Subsidiary (including any undertaking, agreement or instrument
evidencing such Indebtedness), (b) be directly or indirectly liable for any
Indebtedness of any Unrestricted Subsidiary, or (c) be directly or indirectly
liable for any Indebtedness which provides that the holder thereof may (upon
notice, lapse of time or both) declare a default thereon or cause the payment
thereof to be accelerated or payable prior to its final scheduled maturity upon
the occurrence of a default with respect to any Indebtedness of any Unrestricted
Subsidiary (including any right to take enforcement action against such
Unrestricted Subsidiary), except to the extent permitted under the covenant
described under Section 4.10.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(i) no Default shall have occurred and be continuing at
the time of and after giving effect to such Revocation; and
(ii) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation would, if
Incurred at such time, have been permitted to be Incurred for all
purposes of this Indenture and for all purposes of this Indenture shall
be deemed to have been Incurred at such time.
(b) All Designations and Revocations must be evidenced by an
Officers' Certificate delivered to the Trustee attaching a certified copy of the
resolutions of the Board of Directors giving effect to such Designation or
Revocation, as applicable, and certifying compliance with the foregoing
provisions.
(c) Notwithstanding the foregoing, no Subsidiary that was a
Subsidiary Guarantor as of March 29, 2001 shall be permitted to become an
Unrestricted Subsidiary.
48
SECTION 4.22. Limitation on Lines of Business.
-------------------------------
Neither the Company nor any of its Subsidiaries or
Unrestricted Subsidiaries shall directly or indirectly engage to any substantial
extent in any line or lines of business activity other than that which, in the
reasonable good faith judgment of the Board of Directors, is a Related Business.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets of the Company.
-------------------------------------------------------
The Company shall not, in a single transaction or a series of
related transactions, consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets (computed on a
consolidated basis) to, any Person or group of affiliated Persons, unless: (i)
the resulting, surviving or transferee Person shall be the Company or, if not
the Company, shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia (the
"Successor Company"), and such Successor Company shall expressly assume, by an
indenture supplemental to this Indenture, executed and delivered to the Trustee,
all the obligations of the Company under the Notes and this Indenture (and the
Subsidiary Guarantees shall be confirmed as applying to such Person's
obligations); (ii) at the time of and immediately after giving effect to such
transaction or transactions on a pro forma basis (and treating any Indebtedness
which becomes an obligation of the resulting, surviving or transferee Person or
any Subsidiary as a result of such transaction as having been Incurred by such
Person or such Subsidiary at the time of such transaction), no Default or Event
of Default shall have occurred and be continuing; (iii) immediately after giving
effect to such transaction, the resulting, surviving or transferee Person would
be able to Incur at least $1.00 of Indebtedness pursuant to paragraph (a) of
Section 4.13; and (iv) the Company shall have delivered to the Trustee an
Officers' Certificate and if a supplemental indenture is required, an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with the Indenture.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of all or substantially all of the properties and
assets of one or more Subsidiaries, the Company's interest in which constitutes
all or substantially all of the properties and assets of the Company shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
49
Notwithstanding the foregoing, the Company may merge with or
into, or convey, transfer or lease all or substantially all of its assets to,
any Subsidiary Guarantor, and a Subsidiary Guarantor may merge with or into, or
convey, transfer or lease all or substantially all of its assets to, any other
Subsidiary Guarantor or the Company.
SECTION 5.02. Successor Corporation Substituted for the Company.
-------------------------------------------------
Upon any consolidation, combination or merger or any transfer
of all or substantially all of the assets of the Company in accordance with the
foregoing, in which the Company is not the continuing corporation, the Successor
Company formed by such consolidation or into which the Company is merged or to
which such conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and the Notes with the same effect as if such surviving entity
had been named as such, and the predecessor company, in the case of a
conveyance, transfer or lease, shall be released from the obligation to pay the
principal of and interest on the Notes.
SECTION 5.03. Merger, Consolidation and Sale of Assets of Any
-----------------------------------------------
Subsidiary Guarantor.
--------------------
The Company will not permit any Subsidiary Guarantor to
consolidate with or merge with or into, or convey, transfer or lease, in one
transaction or a series of transactions, all or substantially all of its assets
to, any Person unless: (i) the resulting, surviving or transferee Person shall
be the Company or a Subsidiary Guarantor or, if not the Company or such a
Subsidiary Guarantor, shall be a corporation organized and existing under the
laws of the jurisdiction under which such Subsidiary was organized or under the
laws of the United States of America, or any State thereof or the District of
Columbia, and such Person shall expressly assume, by executing a Subsidiary
Guarantee, all the obligations of such Subsidiary, if any, under its Subsidiary
Guarantee; (ii) immediately after giving effect to such transaction or
transactions on a pro forma basis (and treating any Indebtedness which becomes
an obligation of the resulting, surviving or transferee Person as a result of
such transaction as having been issued by such Person at the time of such
transaction), no Default or Event of Default shall have occurred and be
continuing; (iii) immediately after giving effect to such transaction, the
Company would be able to Incur at least $1.00 of Indebtedness pursuant to
Section 4.13(a); and (iv) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such Subsidiary Guarantee, if any, complies with the
Indenture. The provisions of clauses (i), (ii) and (iii) above shall not apply
to any one or more transactions which constitute an (a) Asset Disposition
subject to the applicable provisions of the covenant described under Section
4.17 above or (b) the grant of any Lien on the assets of a Restricted Subsidiary
to secure outstanding Bank Indebtedness, which Lien is permitted by the terms of
the Indenture, or any conveyance or transfer of such assets resulting from an
exercise of remedies in respect of any such Lien.
SECTION 5.04. Successor Corporation Substituted for Subsidiary
------------------------------------------------
Guarantor.
---------
50
Upon any consolidation, combination or merger or any transfer
of all or substantially all of the assets of any Subsidiary Guarantor in
accordance with the foregoing, in which such Subsidiary Guarantor is not the
continuing corporation, the successor Person formed by such consolidation or
into which such Subsidiary Guarantor is merged or to which such conveyance,
lease or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, such Subsidiary Guarantor under this
Indenture with the same effect as if such surviving entity had been named as
such, and the predecessor company, in the case of a conveyance, transfer or
lease, shall be released from the obligation to pay the principal of and
interest on the Notes.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
-----------------
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any
Notes when the same becomes due and payable (whether or not such
payment shall be prohibited by Article Ten of this Indenture) and the
Default continues for a period of 30 days; or
(2) the Company defaults in the payment of the principal on
any Notes when such principal becomes due and payable (whether or not
such payment shall be prohibited by Article Ten), at maturity, upon
optional redemption, upon required repurchase, upon declaration or
otherwise (including the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control under Section 4.16 or an Offer
under Section 4.17); or
(3) the failure by the Company to comply with its
obligations under Section 5.01 above; or
(4) the failure by the Company to comply for 30 days after
notice with any of its obligations under Sections 4.08, 4.10, 4.11,
4.12, 4.13, 4.14, 4.15, 4.16 (other than a failure to purchase the
Notes), 4.17 (other than a failure to purchase the Notes), 4.18, 4.19,
4.20 and 4.21; or
(5) the Company defaults in the observance or performance of
any other covenant, obligation, warranty or agreement contained in this
Indenture and which default continues for a period of 60 days after
notice; or
(6) Indebtedness of the Company or any Significant Subsidiary
is not paid within any applicable grace period after final maturity or
is accelerated by the holders
51
thereof because of a default and the total amount of Indebtedness
unpaid or accelerated together with the principal amount of any other
such Indebtedness which is unpaid or which has been accelerated,
exceeds $10.0 million at any time; or
(7) the Company or any Significant Subsidiary of the Company
(A) commences a voluntary case or proceeding under any Bankruptcy Law
with respect to itself, (B) consents to the entry of a judgment, decree
or order for relief against it in an involuntary case or proceeding
under any Bankruptcy Law, (C) consents to the appointment of a
Custodian of it or for substantially all of its property, (D) consents
to or acquiesces in the institution of a bankruptcy or an insolvency
proceeding against it, (E) makes a general assignment for the benefit
of its creditors, or (F) takes any corporate action to authorize or
effect any of the foregoing; or
(8) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company or any Significant
Subsidiary of the Company in an involuntary case or proceeding under
any Bankruptcy Law, which shall (A) approve as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
in respect of the Company or any such Significant Subsidiary, (B)
appoint a Custodian of the Company or any such Significant Subsidiary
or for substantially all of its property or (C) order the winding-up or
liquidation of its affairs; and such judgment, decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(9) any judgment or decree for the payment of money the
portion of which is not covered by insurance is in an aggregate amount
in excess of $10.0 million shall have been rendered against the Company
or any of its Significant Subsidiaries and is not discharged and either
(A) an enforcement proceeding has been commenced by any creditor upon
such judgment or decree or (B) there is a period of 60 days following
such judgment during which such judgment or decree is not discharged,
waived or the execution thereof stayed (including pending appeal); or
(10) any Subsidiary Guarantee by a Significant Subsidiary
ceases to be in full force and effect or becomes unenforceable or
invalid or is declared null and void (other than in accordance with the
terms of the Subsidiary Guarantee or this Indenture) or any Subsidiary
Guarantor that is a Significant Subsidiary denies or disaffirms its
obligations under its Subsidiary Guarantee.
However, a default under clause (4), (5) or (9) will not
constitute an Event of Default until the Trustee or the Holders of 25% in
principal amount of the outstanding Notes notify the Company of the default and
the Company does not cure such default within the time specified after receipt
of such notice.
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default under clause (6) or (10) and any event which with the
giving of notice or the lapse of time would
52
become an Event of Default under clause (4), (5) or (9), its status and what
action the Company is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration.
------------
(a) If an Event of Default (other than an Event of Default
specified in Section 6.01(7) or (8) with respect to the Company) occurs and is
continuing, and has not been waived pursuant to Section 6.04, then the Trustee,
by written notice to the Company, or the Holders of at least 25% in principal
amount of outstanding Notes may declare the principal of and accrued but unpaid
interest on all the Notes to be due and payable by notice in writing to the
Company and the Trustee specifying the respective Event of Default and that it
is a "notice of acceleration". Upon any such declaration, such amount shall be
immediately due and payable provided, however, that for so long as the Credit
Facility remains in effect, such declaration shall not become effective until
the earlier of (i) five Business Days following delivery of notice to the Senior
Credit Facility Representative of the intention to accelerate the Notes or (ii)
the acceleration of any Indebtedness under the Credit Facility.
(b) If an Event of Default specified in Section 6.01(7) or (8)
relating to the Company occurs and is continuing with respect to the Company,
the principal of and interest on all the Notes will ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders.
(c) The Holders of a majority in principal amount of the Notes
may, on behalf of the Holders of all of the Notes, rescind and cancel an
acceleration and its consequences (i) if the rescission would not conflict with
any judgment or decree, (ii) if all existing Events of Default have been cured
or waived except nonpayment of principal or interest that has become due solely
because of the acceleration, (iii) if the Company has paid the Trustee its
reasonable compensation and reimbursed the Trustee for its expenses,
disbursements and advances and (iv) in the event of the cure or waiver of an
Event of Default of the type described in Section 6.01(7) or 6.01(8), the
Trustee shall have received an Officers' Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
53
No remedy is exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
-----------------------
Subject to Sections 2.09, 6.07 and 9.02, the Holders of a
majority in principal amount of the then outstanding Notes by notice to the
Trustee may, on behalf of the Holders of all of the Notes, waive an existing
Default or Event of Default and its consequences, except a Default in the
payment of principal of or interest on any Note as specified in clauses (1) and
(2) of Section 6.01. When a Default or Event of Default is waived, it is cured
and ceases to exist for every purpose of this Indenture.
SECTION 6.05. Control by Majority.
-------------------
Subject to Section 2.09, the Holders of a majority in
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it, including, without limitation,
any remedies provided for in Section 6.03. Subject to Section 7.01, however, the
Trustee may refuse to follow any direction that the Trustee reasonably believes
conflicts with any law or this Indenture, that the Trustee reasonably determines
may be unduly prejudicial to the rights of another Holder, or that may involve
the Trustee in personal liability; provided that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction; and provided further, that this provision shall not affect the rights
of the Trustee set forth in Section 7.01(d).
SECTION 6.06. Limitation on Suits.
-------------------
Subject to Article Seven, if an Event of Default occurs and is
continuing, the Trustee will be under no obligation to exercise any of the
rights or powers under this Indenture at the request or direction of any of the
Holders unless such Holders have offered to the Trustee indemnity or security
against any loss, liability or expense reasonably satisfactory to the Trustee.
Except to enforce the right to receive payment of principal, premium (if any) or
interest when due, no Holder of a Note may pursue any remedy with respect to
this Indenture or the Notes unless (i) such Holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) Holders of at least
25% in principal amount of the outstanding Notes have requested the Trustee to
pursue the remedy, (iii) such Holders have offered the Trustee security or
indemnity against any loss, liability or expense reasonably satisfactory to the
Trustee, (iv) the Trustee has not complied with such request within 60 days
after the receipt thereof and the offer of security or indemnity and (v) the
Holders of a majority in principal amount of the outstanding Notes have not
given the Trustee a direction inconsistent with such request within such 60-day
period.
54
SECTION 6.07. Rights of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on a Note,
on or after the respective due dates expressed in such Note, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of principal or interest
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Notes for the whole amount of
principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest at the rate set forth in Section
4.01 and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents, consultants and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relating to the Company or any other
obligor upon the Notes, any of their respective creditors or any of their
respective property and shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, if
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, taxes, disbursements and advances of the Trustee, its
agents, consultants and counsel, and any other amounts due the Trustee under
Section 7.07. The Company's payment obligations under this Section 6.09 shall be
secured in accordance with the provisions of Section 7.07 hereunder. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
----------
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money in the following order:
55
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the
Company directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively; and
Fourth: to the Company or any other obligor on the Notes, as
their interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.10.
SECTION 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Notes.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise thereof as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture against the Trustee.
56
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) Notwithstanding anything to the contrary herein contained,
the Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not assured to it.
(e) Whether or not herein expressly provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
SECTION 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
note or other paper or document reasonably believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
57
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate, an Opinion of
Counsel or both, which shall conform to Sections 13.04 and 13.05. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or indirectly or by or
through agents or attorneys and the Trustee shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers; provided, however that the Trustee's
conduct does not constitute wilful misconduct, negligence or bad faith.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled, upon reasonable notice to the Company, to
examine the books, records, and premises of the Company, personally or by agent
or attorney and to consult with the officers and representatives of the Company,
including the Company's accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which
may be incurred by it in compliance with such request, order or direction.
(g) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties hereunder.
(h) The Trustee may determine (i) the execution by any Holder
of any instrument in writing, (ii) the date of such execution or (iii) the
authority of any Person executing the same, in any manner the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine.
(i) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
58
SECTION 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, any
Subsidiary of the Company, or their respective Affiliates with the same rights
it would have if it were not Trustee. However, if the Trustee acquires any
conflicting interest within the meaning of Section 3.10(b) of the TIA, it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
--------------------
The Offering Memorandum and the recitals contained herein and
in the Notes shall be taken as statements of the Company and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Notes, and it shall not be
accountable for the Company's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Company in this Indenture or the
Notes other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default.
-----------------
If a Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Holder notice of the Default within
90 days after such Default occurs. Except in the case of a Default in payment of
principal of, or interest on, any Note, including an accelerated payment and the
failure to make payment on the purchase date pursuant to a Change in Control
under Section 4.16 or on the Purchase Date pursuant to an Offer under Section
4.17 and, except in the case of a failure to comply with Article Five hereof,
the Trustee may withhold the notice if and so long as its board of directors,
the executive committee of its board of directors or a committee of its Trust
Officers in good faith reasonably determines that withholding the notice is in
the best interest of the Holders. In addition, the Company shall deliver to the
Trustee, within 120 days after the end of each fiscal year, a certificate
regarding knowledge of the Company's compliance with all covenants and
conditions under this Indenture. The Company also shall deliver to the Trustee
pursuant to Section 6.01, within 30 days after the occurrence thereof, written
notice of any event which would constitute certain Defaults, their status and
what action the Company is taking or proposes to take in respect thereof.
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
Within 60 days after each May 15, beginning with the May 15
following the date of this Indenture, the Trustee shall, to the extent that any
of the events described in TIA Section 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Holder a brief report dated as of
such date that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Sections 313(b) and (c).
59
The Company shall promptly notify the Trustee if the Notes
become listed on, or delisted from, any stock exchange and the Trustee shall
comply with TIA Section 313(d).
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable fees and
expenses, including out-of-pocket expenses incurred or made by it in connection
with the performance of its duties under this Indenture. Such expenses shall
include the reasonable fees and expenses of the Trustee's agents, consultants,
experts and counsel, except such disbursements, advances and expenses as may be
attributable to its negligence and bad faith.
The Company shall indemnify the Trustee and its agents,
employees, stockholders and directors and officers for, and hold them harmless
against, any loss, liability or expense incurred by them, arising out of or in
connection with the administration of this trust including the reasonable costs
and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their rights, powers or
duties hereunder. The Company need not reimburse any expense or indemnify
against any loss, liability or expense Incurred by the Trustee through the
Trustee's own willful misconduct, negligence or bad faith. The Trustee shall
notify the Company promptly of any claim asserted against the Trustee for which
it may seek indemnity. At the Trustee's sole discretion, the Company shall
defend the claim and the Trustee shall cooperate and may participate in the
defense; provided that any settlement of a claim shall be approved in writing by
the Trustee. Alternatively, the Trustee may at its option have separate counsel
of its own choosing and the Company shall pay the reasonable fees and expenses
of such counsel; provided that the Company will not be required to pay such fees
and expenses if it assumes the Trustee's defense and there is no conflict of
interest between the Company and the Trustee in connection with such defense as
reasonably determined by the Trustee. The Company need not pay for any
settlement made without its written consent. The Company need not reimburse any
expense or indemnify against any loss or liability to the extent incurred by the
Trustee through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Notes on all assets or money
held or collected by the Trustee, in its capacity as Trustee, except assets or
money held in trust to pay principal of or interest on particular Notes. The
Trustee's right to receive payment of any amounts due under this Section 7.07
shall not be subordinate to any other liability or indebtedness of the Company
(even though the Notes may be subordinate to such other liability or
indebtedness).
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(7) or (8) occurs, such expenses and
the compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law; provided,
60
however, that this shall not affect the Trustee's rights as set forth in the
preceding paragraph or Section 6.10.
SECTION 7.08. Replacement of Trustee.
----------------------
The Trustee may resign at any time by so notifying the Company
in writing at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by so notifying the Company and the Trustee and may appoint a
successor Trustee. The Company may remove the Trustee if:
(A) the Trustee fails to comply with Section 7.10;
(B) the Trustee is adjudged bankrupt or insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(C) a receiver or other public officer takes charge of the
Trustee or its property; or
(D) the Trustee becomes incapable of acting.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
If the Trustee resigns or is removed as Trustee or if a
vacancy exists in the office of Trustee for any reason, the Company shall notify
each Holder of such event and shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in
principal amount of the Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
61
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
--------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided that such
corporation shall be otherwise qualified and eligible under this Article Seven.
If at the time such successor or successors by merger,
conversion, consolidation or transfer of assets to the Trustee shall succeed to
the trust created by this Indenture any of the Notes shall have been
authenticated but not delivered, any successor to the Trustee may adopt a
certificate of authentication of any predecessor Trustee, and deliver such Notes
so authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), (2) and (5). The Trustee (or, in the
case of a corporation included in a bank holding company system, the related
bank holding company) shall have a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition. In
addition, if the Trustee is a corporation included in a bank holding company
system, the Trustee, independently of such bank holding company, shall meet the
capital requirements of TIA Section 310(a)(2). The Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Company are outstanding, if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met. The provisions of TIA Section 310 shall apply to
the Company, as obligor of the Notes.
SECTION 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
62
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Discharge of Liability on Notes; Defeasance.
-------------------------------------------
(a) When (i) the Company delivers to the Trustee all
outstanding Notes (other than Notes replaced pursuant to Section 2.07) for
cancellation or (ii) all outstanding Notes have become due and payable at
maturity or will be due and payable within 60 days as a result of the mailing of
a notice of redemption pursuant to Article 3 hereof, in each case, and the
Company irrevocably deposits with the Trustee funds sufficient to pay at
maturity or upon redemption all outstanding Notes, including interest thereon to
maturity or such redemption date (other than Notes replaced pursuant to Section
2.07), and if in either case the Company pays all other sums payable hereunder
by the Company, then this Indenture shall, subject to Section 8.01(c), cease to
be of further effect. The Trustee shall acknowledge satisfaction and discharge
of this Indenture on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel as to the satisfaction of all conditions
to such satisfaction and discharge of this Indenture and at the cost and expense
of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any
time may terminate (i) all its obligations under the Notes and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.10 through
4.22 and the operation of Section 6.01(4) and the limitations contained in
clause (iii) of the first paragraph of each Section 5.01 and Section 5.03
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment
of the Notes may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Notes may not
be accelerated because of an Event of Default specified in Section 6.01(4) or
because of the failure of the Company to comply with clause (iii) of the first
paragraph of each Section 5.01 and Section 5.03. If the Company exercises its
legal defeasance option or its covenant defeasance option, each Subsidiary
Guarantor, if any, shall be released from all its obligations under its
Subsidiary Guarantee.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding paragraphs (a) and (b) above, the
Company's obligations in Sections 2.03, 2.04, 2.05, 2.07, 2.08, 7.07, 7.08,
8.05, 8.06 and the Appendix shall survive until the Notes have been paid in
full. Thereafter, the Company's obligations in Sections 7.07, 8.05 and 8.06
shall survive.
SECTION 8.02. Conditions to Defeasance.
------------------------
63
The Company may exercise its legal defeasance option or its
covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal of,
interest and premium, if any, on the Notes to maturity or redemption
(including, in the case of payment of principal, interest and premium,
if any, to redemption, under arrangements reasonably satisfactory to
the Trustee providing for redemption pursuant to irrevocable
instructions delivered to the Trustee prior to 60 days before a
Redemption Date), as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm expressing their opinion
that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and
in such amounts as will be sufficient to pay principal, premium, if
any, and interest when due on all outstanding Notes to maturity or
redemption, as the case may be;
(3) (x) no Default or Event of Default with respect to the
Notes shall have occurred and be continuing on the date of such deposit
and (y) no Event of Default under Section 6.01(7) or (8) shall occur at
any time in the period ending on the 123rd day after the date of such
deposit (it being understood that the condition set forth in the
preceding clause (y) is a condition subsequent which shall not be
deemed satisfied until the expiration of such 123-day period, but in
the case of the covenant defeasance, the covenants which are defeased
under Section 8.01(b) will cease to be in effect unless an Event of
Default under Section 6.01(7) or (8) occurs during such period);
(4) the Company delivers to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the
Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company and the deposit is not
prohibited under any Designated Senior Indebtedness;
(5) neither the deposit nor the defeasance shall result in a
default or event of default under any other material agreement to which
the Company is a party or by which the Company is bound and neither the
deposit nor the defeasance shall be prohibited by Article 10;
(6) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(7) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since
64
the date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Noteholders
will not recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred;
(8) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Noteholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Notes as contemplated
by this Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article Three.
SECTION 8.03. Application of Trust Money.
--------------------------
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to this Article Eight. It shall apply the
deposited money and the money from U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment of principal
of and interest on the Notes. Money and securities so held in trust are not
subject to Article 10.
SECTION 8.04. Repayment to Company.
--------------------
The Trustee and the Paying Agent shall promptly turn over to
the Company, upon delivery of an Officers' Certificate stating that such payment
does not violate the terms of this Indenture, any excess money or securities
held by them at any time, subject to Section 7.07.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon its written request any money
held by them for the payment of principal or interest that remains unclaimed for
two years, and, thereafter, Noteholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations.
------------------------------------
The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.
65
SECTION 8.06. Reinstatement.
-------------
If the funds deposited with the Trustee to effect legal
defeasance or covenant defeasance are insufficient to pay the principal of,
premium, if any, and interest on the Notes when due, then the obligations of the
Company under the Indenture will be revived and no such defeasance will be
deemed to have occurred.
If the Trustee or Paying Agent is unable to apply any U.S.
Legal Tender or U.S. Government Obligations in accordance with this Article
Eight by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Eight until such time as the Trustee or Paying Agent is
permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in
accordance with this Article 8; provided, however, that, if the Company has made
any payment of interest on or principal of any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the U.S. Legal Tender
or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
--------------------------
The Company, when authorized by a Board Resolution, and the
Trustee, together, may amend or supplement this Indenture or the Notes without
notice to or consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
provided that such amendment or supplement does not, in the reasonable
opinion of the Trustee, adversely affect the rights of any Holder in
any material respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to or in
place of certificated Notes (provided that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code,
or in a manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code);
(4) to comply with any requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
66
(5) to make any change that would provide any additional
benefit or rights to the Holders or that does not adversely affect the
rights of any Holder; or to surrender any right or power conferred upon
the Company;
(6) to add Guarantees with respect to the Notes;
(7) to secure the Notes; or
(8) to make any other change that does not, in the reasonable
opinion of the Trustee, adversely affect in any material respect the
rights of any Holders hereunder;
provided that the Company has delivered to the Trustee an Opinion of Counsel
stating that such amendment or supplement complies with the provisions of this
Section 9.01.
After an amendment, supplement or waiver under this Section
9.01 becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
SECTION 9.02. With Consent of Holders.
-----------------------
Subject to Section 6.07, the Company, when authorized by a
Board Resolution, and the Trustee, together, with the written consent of the
Holder or Holders of at least a majority in aggregate principal amount of the
then outstanding Notes, may amend or supplement this Indenture or the Notes,
without notice to any other Holders. Subject to Section 6.07, the Holder or
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes may waive compliance by the Company with any provision of this
Indenture or the Notes without notice to any other Holder. No amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, shall,
without the consent of each Holder of each Note affected thereby:
(1) reduce the amount of Notes whose Holders must consent to
an amendment or waiver;
(2) reduce the rate of or extend the time for payment of
interest on any Notes;
(3) reduce the principal of or change or have the effect of
changing the Stated Maturity of any Note, or change the date on which
any Notes may be subject to repurchase, or reduce the premium payable
upon the redemption of any Note or change the time at which any Note
may be redeemed in accordance with Article 3, or alter the provisions
(including definitions) set forth in Section 4.16 in a manner adverse
to the Holders;
67
(4) make any Notes payable in money or payable in a place
other than that stated in the Notes;
(5) make any change in Section 6.04 or Section 6.07 or the
second sentence of this Section;
(6) amend, modify, change or waive any provision of this
Section 9.02;
(7) modify Articles Ten or Twelve or the definitions used in
Articles Ten or Twelve to adversely affect the Holders of the Notes;
or
(8) make any change in any Subsidiary Guarantee that would
adversely affect the Holders.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
SECTION 9.03. Effect on Senior Indebtedness.
-----------------------------
No amendment of this Indenture shall adversely affect the
rights of any holder of Senior Indebtedness of the Company or any Restricted
Subsidiary under Article Ten or Twelve of this Indenture, without the consent of
such holder (or its Representative).
SECTION 9.04. Compliance with TIA.
-------------------
If at the time of an amendment to the Indenture or the Notes,
this Indenture shall be qualified under the TIA, every amendment, waiver or
supplement of this Indenture or the Notes shall comply with the TIA as then in
effect.
SECTION 9.05. Revocation and Effect of Consents.
---------------------------------
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or portion of such Note by
notice to the Trustee or the Company received before the date the amendment,
supplement or waiver becomes effective.
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The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be (i) the later of 30
days prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished to the Trustee prior to such solicitation
pursuant to Section 2.05 above or (ii) such other date as the Company may
designate. If a record date is fixed, then notwithstanding the last sentence of
the immediately preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 180 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it makes a change described in any of clauses
(1) through (8) of Section 9.02, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; provided that, without the consent of a Holder,
any such waiver shall not impair or affect the right of such Holder to receive
payment of principal of and interest on a Note, on or after the respective due
dates expressed in such Note, or to bring suit for the enforcement of any such
payment on or after such respective dates.
SECTION 9.06. Notation on or Exchange of Notes.
--------------------------------
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may require the Holder of such Note to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Note about the
changed terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Note shall issue and the
Trustee shall authenticate a new Note that reflects the changed terms. Any such
notation or exchange shall be made at the sole cost and expense of the Company.
Failure to make the appropriate notation or to issue a new Note shall not affect
the validity of such amendment, supplement or waiver.
SECTION 9.07. Trustee To Sign Amendments, Etc.
-------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall not be an expense of the Trustee.
SECTION 9.08. Payment for Consent.
-------------------
69
Neither the Company nor any Affiliate of the Company shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Notes, unless such consideration is offered to be paid to all Holders
that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Indebtedness.
-----------------------------------------
The Company covenants and agrees, and each Holder of the
Notes, by its acceptance thereof, likewise covenants and agrees, that all Notes
shall be issued subject to the provisions of this Article Ten; and each Person
holding any Note, whether upon original issue or upon transfer, assignment or
exchange thereof, accepts and agrees that the payment of all Obligations on the
Notes by the Company shall, to the extent and in the manner herein set forth, be
subordinated and junior in right of payment to the prior payment in full in cash
of all Senior Indebtedness of the Company; that the subordination is for the
benefit of, and shall be enforceable directly by, the holders of Senior
Indebtedness of the Company, and that each holder of Senior Indebtedness of the
Company whether now outstanding or hereafter created, incurred, assumed or
guaranteed shall be deemed to have acquired Senior Indebtedness of the Company
in reliance upon the covenants and provisions contained in this Indenture and
the Notes. Only Indebtedness of the Company that is Senior Indebtedness of the
Company will rank senior to the Notes in accordance with the provisions of the
Indenture. The Notes will in all respects rank pari passu with all other Senior
Subordinated Indebtedness of the Company. Unsecured Indebtedness is not deemed
to be subordinated or junior to secured Indebtedness merely because it is
unsecured. The terms of the subordination provisions described in this Article
Ten shall not apply to payments from money or the proceeds of U.S. Government
Obligations in trust by the Trustee for the payment of principal and interest on
the Notes pursuant to the provisions described in Article Eight unless such
payments were in violation of Designated Senior Indebtedness.
SECTION 10.02. No Payment on Notes in Certain Circumstances.
--------------------------------------------
(a) The Company may not, and no other Person on behalf of the
Company may pay principal of, premium (if any) or interest on the Notes or make
any other payments with respect to the Notes or make any deposit pursuant to the
provisions described under Article Eight above and may not repurchase, redeem or
otherwise retire any Notes (collectively, "pay the Notes") if (i) any amount of
principal, interest or other payments due under any Designated Senior
Indebtedness of the Company has not been paid when due beyond any applicable
grace period whether at maturity, upon redemption, by declaration or otherwise
or
70
(ii) any other default on Designated Senior Indebtedness of the Company occurs
and the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms unless, in either case, the default has been cured or
waived in writing and any such acceleration has been rescinded or such
Designated Senior Indebtedness has been paid in full, after which the Company
shall resume making any and all required payments in respect of the Notes,
including any missed payments. However, the Company may pay the Notes without
regard to the foregoing if the Company and the Trustee receive written notice
approving such payment from the Representative of the Designated Senior
Indebtedness of the Company with respect to which either of the events set forth
in clause (i) or (ii) of the immediately preceding sentence has occurred and is
continuing, after which the Company shall resume making any and all required
payments in respect of the Notes, including any missed payments. During the
continuance of any default (other than a default described in clause (i) or (ii)
of the second preceding sentence) with respect to any Designated Senior
Indebtedness of the Company pursuant to which the maturity thereof may be
accelerated either immediately without further notice (except such notice as may
be required to effect such acceleration) or upon the expiration of any
applicable grace periods, the Company may not pay the Notes for a period (a
"Payment Blockage Period") commencing upon the receipt by the Trustee (with a
copy to the Company) of written notice (a "Blockage Notice") of such default
from the Representative of the holders of such Designated Senior Indebtedness of
the Company specifying an election to effect a Payment Blockage Period and
ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated (A) by written notice to the Trustee and the Company from the Person
or Persons who gave such Blockage Notice (solely as evidenced by written notice
to the Trustee by the Representative of such Designated Senior Indebtedness
which notice shall be promptly delivered), (B) because the default giving rise
to such Blockage Notice is no longer continuing or (C) because such Designated
Senior Indebtedness of the Company has been repaid in full). Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
provisions contained in the first sentence of this paragraph), unless the
holders of such Designated Senior Indebtedness of the Company or the
Representative of such holders has accelerated the maturity of such Designated
Senior Indebtedness of the Company, the Company may resume payments on the Notes
after the end of such Payment Blockage Period, including any missed payments.
The Notes shall not be subject to more than one Payment Blockage Period in any
consecutive 360-day period, irrespective of the number of defaults with respect
to Designated Senior Indebtedness of the Company during such period. No default
which exists or was continuing on the date of commencement of any Blockage
Period with respect to the Designated Senior Indebtedness of the Company shall
be, or be made, the basis for the commencement of a second Blockage Period by
the Representative of such Designated Senior Indebtedness of the Company whether
or not within a period of 360 consecutive days unless such default shall have
been cured or waived in writing for a period of not less than 90 consecutive
days. (It being acknowledged that any subsequent action, or any breach of any
financial covenants for a period commencing after the date of commencement of
such Blockage Period that, in either case, would give rise to a default pursuant
to any provisions under which a default previously existed or was continuing
shall constitute a new default for this purpose.)
(b) If, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder when such payment is prohibited by Section
10.02(a), such payment shall
71
be held in trust for the benefit of, and shall be paid over or delivered to, the
holders of such Senior Indebtedness of the Company (pro rata to such holders on
the basis of the respective amount of such Senior Indebtedness of the Company
held by such holders) or their respective Representatives, as their respective
interests may appear. The Trustee shall be entitled to rely on information
regarding amounts then due and owing on the Senior Indebtedness of the Company,
if any, received from the holders of Senior Indebtedness of the Company (or
their Representatives) or, if such information is not received from such holders
or their Representatives, from the Company and only amounts included in the
information provided to the Trustee shall be paid to the holders of Senior
Indebtedness of the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 10.03 would be applicable.
Nothing contained in this Article Ten shall limit the right of
the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided that all Senior Indebtedness of the Company
thereafter due or declared to be due shall first be paid in full in cash before
the Holders are entitled to receive any payment of any kind or character with
respect to Obligations on the Notes.
SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc.
----------------------------------------------
(a) Upon any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to creditors
upon any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Indebtedness
of the Company shall first be paid in full in cash, or such payment duly
provided for to the satisfaction of the holders of Senior Indebtedness of the
Company, before any payment or distribution of any kind or character is made on
account of any Obligations on the Notes, or for the acquisition of any of the
Notes for cash or property or otherwise. Upon any total or partial liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of creditors
or marshaling of assets of the Company or in a bankruptcy, reorganization,
insolvency, receivership or other similar proceeding, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Notes or the Trustee under
this Indenture would be entitled, except for the provisions hereof, shall be
paid by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Holders or by the Trustee under this Indenture if received by them, directly to
the holders of Senior Indebtedness of the Company (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness of the Company held
by such holders) or their respective Representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
of the Company may have been issued, as their respective interests may appear,
for application to the payment of Senior Indebtedness of the Company remaining
unpaid until all such Senior
72
Indebtedness of the Company has been paid in full in cash after giving effect to
any concurrent payment, distribution or provision therefor to or for the holders
of Senior Indebtedness of the Company.
(b) To the extent any payment of Senior Indebtedness of the
Company (whether by or on behalf of the Company, as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the Senior
Indebtedness of the Company or part thereof originally intended to be satisfied
shall be deemed to be reinstated and outstanding as if such payment had not
occurred.
(c) If, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by any Holder or the Trustee when such
payment or distribution is prohibited by this Section 10.03, such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Indebtedness of the Company (pro rata to
such holders on the basis of the respective amount of Senior Indebtedness of the
Company held by such holders) or their respective Representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Senior
Indebtedness of the Company may have been issued, as their respective interests
may appear, for application to the payment of Senior Indebtedness of the Company
remaining unpaid until all such Senior Indebtedness of the Company has been paid
in full in cash, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Indebtedness of the
Company.
(d) The consolidation of the Company with, or the merger of
the Company with or into, another corporation or the liquidation or dissolution
of the Company following the conveyance or transfer of all or substantially all
of its assets, to another corporation upon the terms and conditions provided in
Article Five hereof and as long as permitted under the terms of the Senior
Indebtedness of the Company shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, assume the Company's obligations hereunder in accordance with Article
Five hereof.
SECTION 10.04. Payments May Be Paid Prior to Dissolution.
-----------------------------------------
Nothing contained in this Article Ten or elsewhere in this
Indenture shall prevent (i) the Company, except under the conditions described
in Sections 10.02 and 10.03, from making payments at any time for the purpose of
making payments of principal of and interest on the Notes, or from depositing
with the Trustee any moneys for such payments, or (ii) in the absence of actual
knowledge by the Trustee that a given payment would be prohibited by Section
10.02 or 10.03, the application by the Trustee of any moneys deposited with it
for the
73
purpose of making such payments of principal of, and interest on, the Notes to
the Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment would otherwise become due and payable a Trust Officer
shall have actually received the written notice provided for in the third
sentence of Section 10.02(a) or in Section 10.07 (provided that, notwithstanding
the foregoing, such application shall otherwise be subject to the provisions of
the first sentence of Section 10.02(a), 10.02(b) and Section 10.03). The Company
shall give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Company.
SECTION 10.05. Subrogation.
-----------
Subject to the payment in full in cash of all Senior
Indebtedness of the Company, the Holders of the Notes shall be subrogated to the
rights of the holders of Senior Indebtedness of the Company to receive payments
or distributions of cash, property or securities of the Company applicable to
the Senior Indebtedness of the Company until the Notes shall be paid in full;
and, for the purposes of such subrogation, no such payments or distributions to
the holders of the Senior Indebtedness of the Company by or on behalf of the
Company or by or on behalf of the Holders by virtue of this Article Ten which
otherwise would have been made to the Holders shall, as between the Company and
the Holders of the Notes, be deemed to be a payment by the Company to or on
account of the Senior Indebtedness of the Company, it being understood that the
provisions of this Article Ten are and are intended solely for the purpose of
defining the relative rights of the Holders of the Notes, on the one hand, and
the holders of the Senior Indebtedness of the Company, on the other hand. If any
payment or distribution to which the Holders would otherwise have been entitled
but for the application of the provisions of this Article Ten, shall have been
applied, pursuant to the provisions of this Article Ten, to the payment of
amounts payable under Senior Indebtedness of the Company, then the Holders shall
be entitled to receive from the holders of such Senior Indebtedness any payments
or distributions received by such holders of Senior Indebtedness in excess of
the amount sufficient to pay all amounts payable under or in respect of such
Senior Indebtedness in full in cash.
SECTION 10.06. Obligations of the Company Unconditional.
----------------------------------------
Nothing contained in this Article Ten or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as among the Company,
its creditors other than the holders of Senior Indebtedness of the Company, and
the Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders the principal of and any interest on the Notes as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of the Senior Indebtedness of the Company,
nor shall anything herein or therein prevent the Holder of any Note or the
Trustee on its behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
in respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
SECTION 10.07. Notice to Trustee.
-----------------
74
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Notes pursuant to the provisions of this
Article Ten. Regardless of anything to the contrary contained in this Article
Ten or elsewhere in this Indenture, the Trustee shall not be charged with
knowledge of the existence of any default or event of default with respect to
any Senior Indebtedness of the Company or of any other facts which would
prohibit the making of any payment to or by the Trustee unless and until the
Trustee shall have received notice in writing from the Company, or from a holder
of Senior Indebtedness of the Company or a Representative therefor and, prior to
the receipt of any such written notice, the Trustee shall be entitled to assume
(in the absence of actual knowledge to the contrary) that no such facts exist.
If the Trustee determines in good faith that any evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness of the Company to participate in any payment or distribution
pursuant to this Article Ten, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amounts of
Senior Indebtedness of the Company held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Ten, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating
--------------------------------------------------------
Agent.
------
Upon any payment or distribution of assets of the Company
referred to in this Article Ten, the Trustee, subject to the provisions of
Article Seven hereof, and the Holders of the Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
any insolvency, bankruptcy, receivership, dissolution, winding-up, liquidation,
reorganization or similar case or proceeding is pending so long as such order
gives effect to the provisions of this Article Ten, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, receiver, assignee for the
benefit of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or the Holders of the Notes, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness of the Company and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Ten.
SECTION 10.09. Trustee's Relation to Senior Indebtedness.
-----------------------------------------
The Trustee and any agent of the Company or the Trustee shall
be entitled to all the rights set forth in this Article Ten with respect to any
Senior Indebtedness of the Company which may at any time be held by it in its
individual or any other capacity to the same extent as any other holder of
Senior Indebtedness of the Company and nothing in this Indenture shall deprive
the Trustee or any such agent of any of its rights as such holder.
75
With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article Ten, and
no implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Company shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company.
Whenever a distribution is to be made or a notice given to
holders or owners of Senior Indebtedness of the Company, the distribution may be
made and the notice may be given to their Representative, if any.
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions
------------------------------------------------------
of the Company or Holders of Senior Indebtedness.
------------------------------------------------
No right of any present or future holders of any Senior
Indebtedness of the Company to enforce subordination as provided herein shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee, without
incurring responsibility to the Trustee or the Holders of the Notes and without
impairing or releasing the subordination provided in this Article Ten or the
obligations hereunder of the Holders of the Notes to the holders of the Senior
Indebtedness of the Company, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness of the Company, or otherwise amend or supplement in
any manner Senior Indebtedness of the Company, or any instrument evidencing the
same or any agreement under which Senior Indebtedness of the Company is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness of the Company;
(iii) release any Person liable in any manner for the payment or collection of
Senior Indebtedness of the Company; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
SECTION 10.11. Noteholders Authorize Trustee To Effectuate
-------------------------------------------
Subordination of Notes.
----------------------
Each Holder of Notes by its acceptance of them authorizes and
expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of Senior
Indebtedness of the Company and the Holders of Notes, the subordination provided
in this Article Ten, and appoints the Trustee its attorney-in-fact for such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar
76
proceedings or upon an assignment for the benefit of creditors or otherwise)
tending towards liquidation of the business and assets of the Company, the
filing of a claim for the unpaid balance of its Notes and accrued interest in
the form required in those proceedings.
If the Trustee does not file a proper claim or proof of debt
in the form required in such proceeding prior to 30 days before the expiration
of the time to file such claim or claims, then the holders of the Senior
Indebtedness of the Company or their Representative are or is hereby authorized
to have the right to file and are or is hereby authorized to file an appropriate
claim for and on behalf of the Holders of said Notes. Nothing herein contained
shall be deemed to authorize the Trustee or the holders of Senior Indebtedness
of the Company or their Representative to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Indebtedness of
the Company or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 10.12. This Article Ten Not To Prevent Events of Default.
-------------------------------------------------
The failure to make a payment on account of principal of or
interest on the Notes by reason of any provision of this Article Ten will not be
construed as preventing the occurrence of an Event of Default.
Nothing contained in this Article Ten shall limit the right of
the Trustee or the Holders to take any action or accelerate the maturity of the
Notes pursuant to Article Six or to pursue any rights or remedies hereunder or
under applicable law, subject to the rights, if any, under this Article Ten of
the holders from time to time, of Senior Indebtedness of the Company.
SECTION 10.13. Trustee's Compensation Not Prejudiced.
-------------------------------------
Nothing in this Article Ten will apply to amounts due to the
Trustee pursuant to other sections in this Indenture
SECTION 10.14. Acceleration of Payment of Notes.
--------------------------------
If payment of the Notes is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the holders of
Designated Senior Indebtedness of the Company or the Representative of such
holders of the acceleration (in the case of the Trustee, only to the extent of
its actual knowledge of such holders or the Representative of such holders).
ARTICLE ELEVEN
GUARANTEES
77
SECTION 11.01. Unconditional Guarantee.
-----------------------
Each of the Subsidiary Guarantors hereby unconditionally
jointly and severally guarantees (such guarantee to be referred to herein as the
"Subsidiary Guarantee") to each Holder of a Note authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, that: (i) the
principal of and interest on the Notes will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by acceleration or
otherwise and interest on the overdue principal, if any, and interest on any
interest, to the extent lawful, of the Notes and all other obligations of the
Company to the Holders or the Trustee under the Indenture or the Notes will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and (ii) in case of any extension of time of payment or renewal of any
Notes or of any such other obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration or otherwise.
Each Subsidiary Guarantor further agrees that, as between such
Subsidiary Guarantor on one hand, and the Holders and the Trustee on the other
hand, (x) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article Six for the purposes of the Subsidiary Guaranty,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and
payable by such Subsidiary Guarantor for the purposes of the Subsidiary
Guaranty.
Each of the Subsidiary Guarantors hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each of the Subsidiary Guarantors hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that the Subsidiary Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes, this Indenture and in the
Subsidiary Guarantee. If any Noteholder or the Trustee is required by any court
or otherwise to return to the Company, any Subsidiary Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or any Subsidiary Guarantor, any amount paid by the Company or such
Subsidiary Guarantor to the Trustee or such Noteholder, the Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each of the Subsidiary Guarantors hereby agrees that, in the
event of default in the payment of principal (or premium, if any) or interest on
such Notes, whether at their Stated Maturity, by acceleration, called for
redemption, purchase or otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such Notes, subject to the terms and
conditions set forth in this Indenture, directly against each of the Subsidiary
Guarantors to enforce the Subsidiary
78
Guarantee without first proceeding against the Company. Each Subsidiary
Guarantor agrees that if, after the occurrence and during the continuance of an
Event of Default, the Trustee or any Holders are prevented by applicable law
from exercising their respective rights to accelerate the maturity of the Notes,
to collect interest on the Notes, or to enforce any other right or remedy with
respect to the Notes, the Subsidiary Guarantors agree to pay to the Trustee for
the account of the Holders, upon demand therefor, the amount that would
otherwise have been due and payable had such rights and remedies been permitted
to be exercised by the Trustee or any of the Holders.
SECTION 11.02. Subordination of Subsidiary Guarantee.
-------------------------------------
The obligations of each Subsidiary Guarantor to the Holders of
the Notes and to the Trustee pursuant to the Subsidiary Guarantee and this
Indenture are expressly subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness of such Subsidiary Guarantor, to the
extent and in the manner provided in Article Twelve.
SECTION 11.03. Severability.
------------
In case any provision of the Subsidiary Guarantee shall be
invalid, illegal or unenforceable, the validity, legality, and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.04. Release of Subsidiary Guarantor from the Subsidiary
---------------------------------------------------
Guarantee.
----------
Upon the sale or disposition (whether by merger, stock
purchase, asset sale or otherwise) of a Subsidiary Guarantor (or all or
substantially all of its assets) to an entity which is not the Company or a
Subsidiary or Affiliate of the Company and which sale or disposition is
otherwise in compliance with the terms of this Indenture or pursuant to a
foreclosure on the capital stock of such Subsidiary Guarantor in accordance with
the Credit Facility, such Subsidiary Guarantor shall be deemed released from all
obligations under this Article Eleven without any further action required on the
part of the Trustee or any Holder.
The Trustee shall deliver an appropriate instrument evidencing
such release upon receipt of a request by the Company accompanied by an
Officers' Certificate certifying as to the compliance with this Section 11.04.
SECTION 11.05. Limitation on Amount Guaranteed; Contribution by
------------------------------------------------
Subsidiary Guarantors.
---------------------
(a) Anything contained in this Indenture or the Subsidiary
Guaranty to the contrary notwithstanding, if any Fraudulent Transfer Law (as
hereinafter defined) is determined by a court of competent jurisdiction to be
applicable to the obligations of any Subsidiary Guarantor under the Subsidiary
Guarantee, such obligations of such Subsidiary Guarantor under the Subsidiary
Guarantee shall be limited to a maximum aggregate amount equal to the largest
79
amount that would not render its obligations under the Subsidiary Guarantee
subject to avoidance as a fraudulent transfer or conveyance under Section 548 of
Title 11 of the United States Code or any applicable provisions of comparable
state law (collectively, the "Fraudulent Transfer Laws"), in each case after
giving effect to all other liabilities of such Subsidiary Guarantor, contingent
or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such Subsidiary Guarantor (x) in respect
of intercompany Indebtedness to Company or other Affiliates of Company to the
extent that such Indebtedness would be discharged in an amount equal to the
amount paid by such Subsidiary Guarantor under the Subsidiary Guaranty and (y)
under any Guarantee of Subordinated Indebtedness which Guarantee contains a
limitation as to maximum amount similar to that set forth in this subsection
11.05(a), pursuant to which the liability of such Subsidiary Guarantor under the
Subsidiary Guarantee is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets to the value
(as determined under the applicable provisions of the Fraudulent Transfer Laws)
of any rights to subrogation, reimbursement, indemnification or contribution of
such Subsidiary Guarantor pursuant to applicable law or pursuant to the terms of
any agreement (including without limitation any such right of contribution under
subsection 11.05(b)).
(b) The Subsidiary Guarantors together desire to allocate
among themselves in a fair and equitable manner, their obligations arising under
the Subsidiary Guarantee. Accordingly, if any payment or distribution is made on
any date by any Subsidiary Guarantor under the Subsidiary Guarantee (a "Funding
Subsidiary Guarantor") that exceeds its Fair Share (as defined below) as of such
date, that Funding Subsidiary Guarantor shall be entitled to a contribution from
each of the other Subsidiary Guarantors in the amount of such other Subsidiary
Guarantor's Fair Share Shortfall (as defined below) as of such date, with the
result that all such contributions will cause each Subsidiary Guarantor's
Aggregate Payments (as defined below) to equal its Fair Share as of such date.
"Fair Share" means, with respect to a Subsidiary Guarantor as of any date of
determination, an amount equal to (i) the ratio of (x) the Adjusted Maximum
Amount (as defined below) with respect to such Subsidiary Guarantor to (y) the
aggregate of the Adjusted Maximum Amounts with respect to all Subsidiary
Guarantors, multiplied by (ii) the aggregate amount paid or distributed on or
before such date by all Funding Subsidiary Guarantors under the Subsidiary
Guarantee in respect of the obligations guarantied. "Fair Share Shortfall"
means, with respect to a Subsidiary Guarantor as of any date of determination,
the excess, if any, of the Fair Share of such Subsidiary Guarantor over the
Aggregate Payments of such Subsidiary Guarantor. "Adjusted Maximum Amount"
means, with respect to a Subsidiary Guarantor as of any date of determination,
the maximum aggregate amount of the obligations of such Subsidiary Guarantor
under the Subsidiary Guarantee, determined as of such date in accordance with
subsection 11.05(a); provided that, solely for purposes of calculating the
Adjusted Maximum Amount with respect to any Subsidiary Guarantor for purposes of
this subsection 11.05(b), any assets or liabilities of such Subsidiary Guarantor
arising by virtue of any rights to subrogation, reimbursement or indemnification
or any rights to or obligations of contribution hereunder shall not be
considered as assets or liabilities of such Subsidiary Guarantor. "Aggregate
Payments" means, with respect to a Subsidiary Guarantor as of any date of
determination, an amount equal to (i) the aggregate amount of all payments and
distributions made on or before such date by such Subsidiary
80
Guarantor in respect of the Subsidiary Guarantee (including, without limitation,
in respect of this subsection 11.05(b) minus (ii) the aggregate amount of all
payments received on or before such date by such Subsidiary Guarantor from the
other Subsidiary Guarantors as contributions under this subsection 11.05(b)).
The amounts payable as contributions hereunder shall be determined as of the
date on which the related payment or distribution is made by the applicable
Funding Subsidiary Guarantor. The allocation among Subsidiary Guarantors of
their obligations as set forth in this subsection 11.05(b) shall not be
construed in any way to limit the liability of any Subsidiary Guarantor under
this Indenture or under the Subsidiary Guaranty.
SECTION 11.06. Waiver of Subrogation.
---------------------
Until payment in full is made of the Notes and all other
obligations of the Company to the Holders or the Trustee hereunder and under the
Notes, each Subsidiary Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of such Subsidiary
Guarantor's obligations under the Subsidiary Guarantee and this Indenture,
including without limitation, any right of subrogation, reimbursement,
exoneration, indemnification, and any right to participate in any claim or
remedy of any Holder of Notes against the Company, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from the Company,
directly or indirectly, in cash or other property or by set-off or any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to any Subsidiary Guarantor in violation of the preceding
sentence and the Notes shall not have been paid in full, such amount shall have
been deemed to have been paid to such Subsidiary Guarantor for the benefit of,
and held in trust for the benefit of, the Holders of the Notes, and shall
forthwith be paid to the Trustee for the benefit of such Holders to be credited
and applied upon the Notes, whether matured or unmatured, in accordance with the
terms of this Indenture. Each Subsidiary Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
11.06 is knowingly made in contemplation of such benefits.
SECTION 11.07. Execution of Subsidiary Guarantee.
---------------------------------
To evidence its guarantee to the Noteholders set forth in this
Article Eleven, each Subsidiary Guarantor hereby agrees to execute the
Subsidiary Guarantee in substantially the form included in Exhibits A and
Exhibit B, which shall be endorsed on such Note ordered to be authenticated and
delivered by the Trustee. Each Subsidiary Guarantor hereby agrees that the
Subsidiary Guarantee set forth in this Article Eleven shall remain in full force
and effect notwithstanding any failure to endorse on each Note a notation of the
Subsidiary Guarantee. The Subsidiary Guarantee shall be signed on behalf of each
Subsidiary Guarantor by one Officer of such Subsidiary Guarantor (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) prior to the authentication of the Note on which it is endorsed, and
the delivery of such Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee on behalf
of such Subsidiary Guarantor. Such signatures upon the Subsidiary Guarantee may
be by manual or
81
facsimile signature of such officers and may be imprinted or otherwise
reproduced on the Subsidiary Guarantee, and in case any such Officer who shall
have signed the Subsidiary Guarantee shall cease to be such officer before the
Note on which the Subsidiary Guarantee is endorsed shall have been authenticated
and delivered by the Trustee or disposed of by the Company, such Note
nevertheless may be authenticated and delivered or disposed of as though the
person who signed the Subsidiary Guarantee had not ceased to be such Officer of
such Subsidiary Guarantor.
SECTION 11.08. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
Each Subsidiary Guarantor jointly and severally covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law that would prohibit or
forgive such Subsidiary Guarantor from performing the Subsidiary Guarantee as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) each Subsidiary Guarantor hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 11.09. Effectiveness of Subsidiary Guarantee.
-------------------------------------
The Subsidiary Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Company for liquidation or reorganization, should the Company become insolvent
or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any significant part of the Company's assets,
and shall, to the fullest extent permitted by law, continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of the
Notes, is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Notes, whether as a
"voidable preference," "fraudulent transfer," or otherwise, all as though such a
payment or performance had not been made. If any payments, or any part thereof,
is rescinded, reduced, restored or returned, the Notes shall, to the fullest
extent permitted by law, be reinstituted and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Subsidiary Guarantee Obligations Subordinated to Senior
-------------------------------------------------------
Indebtedness of Subsidiary Guarantors.
-------------------------------------
82
Each Subsidiary Guarantor covenants and agrees, and each
Holder of the Notes, by its acceptance thereof, likewise covenants and agrees,
that any payment of obligations by each Subsidiary Guarantor in respect of the
Subsidiary Guarantee (its "Subsidiary Guarantee Obligations") shall be made
subject to the provisions of this Article Twelve, and each Person holding any
Note, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that the payment of all such Subsidiary Guarantor's
Subsidiary Guarantee Obligations shall, to the extent and in the manner herein
set forth, be subordinated and junior in right of payment to the prior payment
in full in cash of all Obligations in respect of such Subsidiary Guarantor's
Senior Indebtedness, including principal, premium (if any) or interest
(including post-petition interest) thereon, that the subordination is for the
benefit of, and shall be enforceable directly by, the holders of such Subsidiary
Guarantor's Senior Indebtedness, and that each holder of any Subsidiary
Guarantor's Senior Indebtedness whether now outstanding or hereafter created,
incurred, assumed or guaranteed shall be deemed to have acquired such Subsidiary
Guarantor's Senior Indebtedness in reliance upon the covenants and provisions
contained in this Indenture and the Notes. Only Indebtedness of a Subsidiary
Guarantor that is Senior Indebtedness of such Subsidiary Guarantor will rank
senior to the Subsidiary Guarantee of such Subsidiary Guarantor in accordance
with the provisions of the Indenture. A Subsidiary Guarantee will in all
respects rank pari passu with all other Senior Subordinated Indebtedness of the
Subsidiary Guarantor to which it relates. Unsecured Indebtedness is not deemed
to be subordinated or junior to secured Indebtedness merely because it is
unsecured.
SECTION 12.02. No Payment on Notes in Certain Circumstances.
--------------------------------------------
(a) No Subsidiary Guarantor may, and no other Person on behalf
of such Subsidiary Guarantor may, make any payment with respect to the
Subsidiary Guarantee or make any deposit pursuant to Article Eight above
(collectively, "pay the Subsidiary Guarantee") if (i) any amount of principal,
interest or other payments due under any Designated Senior Indebtedness of such
Subsidiary Guarantor or the Company has not been paid when due beyond any
applicable grace period whether at maturity, upon redemption, by declaration or
otherwise or (ii) any other default on Designated Senior Indebtedness of such
Subsidiary Guarantor or the Company occurs and the maturity of such Designated
Senior Indebtedness is accelerated in accordance with its terms unless, in
either case, the default has been cured or waived in writing and any such
acceleration has been rescinded or such Designated Senior Indebtedness has been
paid in full, after which such Subsidiary Guarantor shall resume making any and
all required payments in respect of the Subsidiary Guaranty, including any
missed payments. However, a Subsidiary Guarantor may pay the Subsidiary
Guarantee without regard to the foregoing if such Subsidiary Guarantor and the
Trustee receive written notice approving such payment from the Representative of
the Designated Senior Indebtedness guaranteed by such Subsidiary Guarantor with
respect to which either of the events set forth in clause (i) or (ii) of the
immediately preceding sentence has occurred and is continuing, after which such
Subsidiary Guarantor shall resume making any and all required payments in
respect of the Subsidiary Guaranty, including any missed payments. During the
continuance of any default (other than a default described in clause (i) or (ii)
of the second preceding sentence) with respect to any Designated Senior
Indebtedness of a Subsidiary Guarantor or the Company pursuant to which the
maturity thereof may be accelerated either immediately without further notice
(except such notice as may be
83
required to effect such acceleration) or upon the expiration of any applicable
grace periods, such Subsidiary Guarantor may not pay the Subsidiary Guarantee
for a period (a "Payment Blockage Period") commencing upon the receipt by the
Trustee (with a copy to such Subsidiary Guarantor) of written notice (a
"Blockage Notice") of such default from the Representative of the holders of
such Designated Senior Indebtedness of such Subsidiary Guarantor or the Company
specifying an election to effect a Payment Blockage Period and ending 179 days
thereafter (or earlier if such Payment Blockage Period is terminated (A) by
written notice to the Trustee and such Subsidiary Guarantor from the Person or
Persons who gave such Blockage Notice (solely as evidenced by written notice to
the Trustee by the Representative of such Designated Senior Indebtedness which
notice shall be promptly delivered), (B) because the default giving rise to such
Blockage Notice is no longer continuing or (C) because such Designated Senior
Indebtedness of such Subsidiary Guarantor and the related Designated Senior
Indebtedness of the Company has been repaid in full). Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
provisions contained in the first sentence of this paragraph), unless the
holders of such Designated Senior Indebtedness of such Subsidiary Guarantor or
the Company or the Representative of such holders has accelerated the maturity
of such Designated Senior Indebtedness of such Subsidiary Guarantor or the
Company, such Subsidiary Guarantor may resume payments on the Subsidiary
Guarantee after the end of such Payment Blockage Period including any missed
payments. The Subsidiary Guarantee shall not be subject to more than one Payment
Blockage Period in any consecutive 360-day period, irrespective of the number of
defaults with respect to Designated Senior Indebtedness guaranteed by such
Subsidiary Guarantor during such period. No default which exists or was
continuing on the date of commencement of any Blockage Period with respect to
the Designated Senior Indebtedness of a Subsidiary Guarantor or the Company
under this Section 12.02 shall be, or shall be made, the basis for the
commencement of a second Blockage Period by the Representative of such
Designated Senior Indebtedness of such Subsidiary Guarantor whether or not
within a period of 360 consecutive days unless such default shall have been
cured or waived in writing for a period of not less than 90 consecutive days (it
being acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Blockage Period that, in either case, would give rise to a default pursuant to
any provisions under which a default previously existed or was continuing shall
constitute a new default for this purpose).
(b) If, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder when such payment is prohibited by Section
12.02(a), such payment shall be held in trust for the benefit of, and shall be
paid over or delivered to, the holders of such Subsidiary Guarantor's Senior
Indebtedness (pro rata to such holders on the basis of the respective amount of
such Subsidiary Guarantor's Senior Indebtedness held by such holders) or their
respective Representatives, as their respective interests may appear. The
Trustee shall be entitled to rely on information regarding amounts then due and
owing on such Subsidiary Guarantor's Senior Indebtedness, if any, received from
the holders of such Subsidiary Guarantor's Senior Indebtedness (or their
Representatives) or, if such information is not received from such holders or
their Representatives, from such Subsidiary Guarantor and only amounts included
in the information provided to the Trustee shall be paid to the holders of such
Subsidiary Guarantor's Senior Indebtedness.
84
The provisions of this Section shall not apply to any payment
with respect to which Section 12.03 would be applicable.
Nothing contained in this Article Twelve shall limit the right
of the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided that all Senior Indebtedness of the Company
thereafter due or declared to be due shall first be paid in full in cash or
before the Holders are entitled to receive any payment of any kind or character
with respect to Obligations on the Notes.
SECTION 12.03. Payment Over of Proceeds upon Dissolution, Etc.
----------------------------------------------
(a) Upon any payment or distribution of assets of any
Subsidiary Guarantor of any kind or character, whether in cash, property or
securities, to creditors upon any total or partial liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors or
marshaling of assets of such Subsidiary Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or other similar proceeding relating to
such Subsidiary Guarantor or its property, whether voluntary or involuntary, all
Obligations due or to become due upon all of such Subsidiary Guarantor's Senior
Indebtedness shall first be paid in full in cash, or such payment duly provided
for to the satisfaction of the holders of such Subsidiary Guarantor's Senior
Indebtedness, before any payment or distribution of any kind or character is
made on account of any Obligations with respect to the Subsidiary Guarantee of
such Subsidiary Guarantor, or for the acquisition of such Subsidiary Guarantee
for cash or property or otherwise. Upon any such total or partial liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of creditors
or marshaling of assets of such Subsidiary Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or other similar proceeding, any
payment or distribution of assets of such Subsidiary Guarantor of any kind or
character, whether in cash, property or securities, to which the Holders of the
Notes or the Trustee under this Indenture would be entitled, except for the
provisions hereof, shall be paid by such Subsidiary Guarantor or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders or by the Trustee under
this Indenture if received by them, directly to the holders of such Subsidiary
Guarantor's Senior Indebtedness (pro rata to such holders on the basis of the
respective amounts of such Subsidiary Guarantor's Senior Indebtedness held by
such holders) or their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Subsidiary Guarantor's Senior
Indebtedness may have been issued, as their respective interests may appear, for
application to the payment of such Subsidiary Guarantor's Senior Indebtedness
remaining unpaid until all such Subsidiary Guarantor's Senior Indebtedness has
been paid in full in cash after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Subsidiary
Guarantor's Senior Indebtedness.
(b) To the extent any payment of any Subsidiary Guarantor's
Senior Indebtedness (whether by or on behalf of such Subsidiary Guarantor, as
proceeds of security or enforcement of any right of setoff or otherwise) is
declared to be fraudulent or preferential, set
85
aside or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then, if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, such Subsidiary Guarantor's Senior
Indebtedness or part thereof originally intended to be satisfied shall be deemed
to be reinstated and outstanding as if such payment had not occurred.
(c) If, notwithstanding the foregoing, any payment or
distribution of assets of any Subsidiary Guarantor of any kind or character,
whether in cash, property or securities, shall be received by any Holder or the
Trustee when such payment or distribution is prohibited by this Section 12.03,
such payment or distribution shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of such Subsidiary Guarantor's
Senior Indebtedness (pro rata to such holders on the basis of the respective
amount of such Subsidiary Guarantor's Senior Indebtedness held by such holders)
or their respective Representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Subsidiary Guarantor's Senior
Indebtedness may have been issued, as their respective interests may appear, for
application to the payment of such Subsidiary Guarantor's Senior Indebtedness
remaining unpaid until all such Subsidiary Guarantor's Senior Indebtedness has
been paid in full in cash, after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Subsidiary
Guarantor's Senior Indebtedness.
(d) The consolidation of any Subsidiary Guarantor with, or the
merger of any Subsidiary Guarantor with or into, another corporation or the
liquidation or dissolution of any Subsidiary Guarantor following the conveyance
or transfer of all or substantially all of its assets, to another corporation
upon the terms and conditions provided in Article Five hereof and as long as
permitted under the terms of such Subsidiary Guarantor's Senior Indebtedness
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, assume such Subsidiary
Guarantor's obligations hereunder in accordance with Article Five hereof.
SECTION 12.04. Payments May Be Paid Prior to Dissolution.
-----------------------------------------
Nothing contained in this Article Twelve or elsewhere in this
Indenture shall prevent (i) any Subsidiary Guarantor, except under the
conditions described in Sections 12.02 and 12.03, from making payments at any
time for the purpose of making payments in respect of this Subsidiary Guarantee,
or from depositing with the Trustee any moneys for such payments, or (ii) in the
absence of actual knowledge by the Trustee that a given payment would be
prohibited by Section 12.02 or 12.03, the application by the Trustee of any
moneys deposited with it for the purpose of making such payments to the Holders
entitled thereto unless at least two Business Days prior to the date upon which
such payment would otherwise become due and payable a Trust Officer shall have
actually received the written notice provided for in the third sentence of
Section 12.02(a) or in Section 12.07 (provided that, notwithstanding the
foregoing, such application shall otherwise be subject to the provisions of the
first sentence of Section 12.02(a), 12.02(b) and Section 12.03). Each Subsidiary
Guarantor shall give prompt
86
written notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of such Subsidiary Guarantor.
SECTION 12.05. Subrogation.
-----------
Subject to the payment in full in cash of all Subsidiary
Guarantor Senior Indebtedness, the Holders of the Obligations of any Subsidiary
Guarantor shall be subrogated to the rights of the holders of such Subsidiary
Guarantor's Senior Indebtedness to receive payments or distributions of cash,
property or securities of such Subsidiary Guarantor applicable to such
Subsidiary Guarantor's Senior Indebtedness until the Obligations of such
Subsidiary Guarantor under the Subsidiary Guarantee shall be paid in full; and,
for the purposes of such subrogation, no such payments or distributions to the
holders of such Subsidiary Guarantor's Senior Indebtedness by or on behalf of
such Subsidiary Guarantor or by or on behalf of the Holders by virtue of this
Article Twelve which otherwise would have been made to the Holders shall, as
between such Subsidiary Guarantor and the Holders of such Subsidiary Guarantor's
Obligations, be deemed to be a payment by such Subsidiary Guarantor to or on
account of such Subsidiary Guarantor's Senior Indebtedness, it being understood
that the provisions of this Article Twelve are and are intended solely for the
purpose of defining the relative rights of the Holders of such Subsidiary
Guarantor's Obligations, on the one hand, and the holders of such Subsidiary
Guarantor's Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the application of the provisions of this
Article Twelve shall have been applied, pursuant to the provisions of this
Article Twelve, to the payment of amounts payable under Senior Indebtedness of
any Subsidiary Guarantor, then the Holders shall be entitled to receive from the
holders of such Senior Indebtedness any payments or distributions received by
such holders of Senior Indebtedness in excess of the amount sufficient to pay
all amounts payable under or in respect of such Senior Indebtedness in full in
cash.
SECTION 12.06. Obligations of Subsidiary Guarantor Unconditional.
-------------------------------------------------
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as among the
Subsidiary Guarantors, their respective creditors other than the holders of such
Subsidiary Guarantor's Senior Indebtedness, and the Holders, the obligation of
such Subsidiary Guarantor, which is absolute and unconditional, to pay to the
Holders the Subsidiary Guarantee Obligations as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders and creditors of such Subsidiary
Guarantor other than the holders of such Subsidiary Guarantor's Senior
Indebtedness, nor shall anything herein or therein prevent the Holder of any
Note or the Trustee on its behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, in respect of cash, property or securities of such Subsidiary
Guarantor received upon the exercise of any such remedy.
SECTION 12.07. Notice to Trustee.
-----------------
87
Each Subsidiary Guarantor shall give prompt written notice to
the Trustee of any fact known to such Subsidiary Guarantor which would prohibit
the making of any payment to or by the Trustee in respect of the Subsidiary
Guarantee or the Notes pursuant to the provisions of this Article Twelve.
Regardless of anything to the contrary contained in this Article Twelve or
elsewhere in this Indenture, the Trustee shall not be charged with knowledge of
the existence of any default or event of default with respect to any Subsidiary
Guarantor's Senior Indebtedness or of any other facts which would prohibit the
making of any payment to or by the Trustee unless and until the Trustee shall
have received notice in writing from such Subsidiary Guarantor or from a holder
of such Subsidiary Guarantor's Senior Indebtedness or a Representative therefor,
and, prior to the receipt of any such written notice, the Trustee shall be
entitled to assume (in the absence of actual knowledge to the contrary) that no
such facts exist.
If the Trustee determines in good faith that any evidence is
required with respect to the right of any Person as a holder of such Subsidiary
Guarantor's Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Twelve, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amounts of such
Subsidiary Guarantor's Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this Article
Twelve, and if such evidence is not furnished the Trustee may defer any payment
to such Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 12.08. Reliance on Judicial Order or Certificate of
---------------------------------------------
Liquidating Agent.
------------------
Upon any payment or distribution of assets of any Subsidiary
Guarantor referred to in this Article Twelve, the Trustee, subject to the
provisions of Article Seven hereof, and the Holders of the Notes shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any insolvency, bankruptcy, receivership, dissolution,
winding-up, liquidation, reorganization or similar case or proceeding is pending
so long as such order gives effect to the provisions of this Article Twelve, or
upon a certificate of the receiver, trustee in bankruptcy, liquidating trustee,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or the Holders of the
Notes, for the purpose of ascertaining the persons entitled to participate in
such payment or distribution, the holders of each Subsidiary Guarantor's Senior
Indebtedness and other Indebtedness of any Subsidiary Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Twelve.
SECTION 12.09. Trustee's Relation to Subsidiary Guarantor's Senior
---------------------------------------------------
Indebtedness.
-------------
The Trustee, any agent of the Trustee and any agent of any
Subsidiary Guarantor shall be entitled to all the rights set forth in this
Article Twelve with respect to the respective
88
Subsidiary Guarantor's Senior Indebtedness which may at any time be held by it
in its individual or any other capacity to the same extent as any other holder
of the respective Subsidiary Guarantor's Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee or any such agent of any of its rights as
such holder.
With respect to the holders of the respective Subsidiary
Guarantor's Senior Indebtedness, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically set forth in this
Article Twelve, and no implied covenants or obligations with respect to the
holders of the respective Subsidiary Guarantor's Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of any Subsidiary Guarantor's Senior
Indebtedness.
Whenever a distribution is to be made or a notice given to
holders or owners of any Subsidiary Guarantor's Senior Indebtedness, the
distribution may be made and the notice may be given to their Representative, if
any.
SECTION 12.10. Subordination Rights Not Impaired by Acts or Omissions
------------------------------------------------------
of Subsidiary Guarantors or Holders of Subsidiary
-------------------------------------------------
Guarantors' Senior Indebtedness.
-------------------------------
No right of any present or future holders of any Subsidiary
Guarantor's Senior Indebtedness to enforce subordination as provided herein
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of such Subsidiary Guarantor or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by such Subsidiary
Guarantor with the terms of this Indenture, regardless of any knowledge thereof
which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of any Subsidiary Guarantor's Senior Indebtedness may, at
any time and from time to time, without the consent of or notice to the Trustee,
without incurring responsibility to the Trustee or the Holders of the Notes and
without impairing or releasing the subordination provided in this Article Twelve
or the obligations hereunder of the Holders of the Notes to the holders of such
Subsidiary Guarantor's Senior Indebtedness, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, such Subsidiary Guarantor's Senior Indebtedness, or
otherwise amend or supplement in any manner such Subsidiary Guarantor's Senior
Indebtedness, or any instrument evidencing the same or any agreement under which
such Subsidiary Guarantor's Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Subsidiary Guarantor's Senior Indebtedness; (iii)
release any Person liable in any manner for the payment or collection of such
Subsidiary Guarantor's Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against such Subsidiary Guarantor and any other Person.
89
SECTION 12.11. Noteholders Authorize Trustee To Effectuate
-------------------------------------------
Subordination of Notes.
----------------------
Each Holder of Notes by its acceptance of them authorizes and
expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of each
Subsidiary Guarantor's Senior Indebtedness and the Holders of Notes, the
subordination provided in this Article Twelve, and appoints the Trustee its
attorney-in-fact for such purposes, including, in the event of any dissolution,
winding-up, liquidation or reorganization of such Subsidiary Guarantor (whether
in bankruptcy, insolvency, receivership, reorganization or similar proceedings
or upon an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of such Subsidiary Guarantor, the filing
of a claim for the unpaid balance of its Notes and accrued interest in the form
required in those proceedings.
If the Trustee does not file a proper claim or proof of debt
in the form required in such proceeding prior to 30 days before the expiration
of the time to file such claim or claims, then the holders of each Subsidiary
Guarantor's Senior Indebtedness or their Representative are or is hereby
authorized to have the right to file and are or is hereby authorized to file an
appropriate claim for and on behalf of the Holders of said Notes. Nothing herein
contained shall be deemed to authorize the Trustee or the holders of any
Subsidiary Guarantor's Senior Indebtedness or their respective Representatives
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee or the holders of
any Subsidiary Guarantor's Senior Indebtedness or their Representatives to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 12.12. This Article Twelve Not To Prevent Events of Default.
----------------------------------------------------
The failure to make a payment on account of Obligations of any
Subsidiary Guarantor by reason of any provision of this Article Twelve will not
be construed as preventing the occurrence of an Event of Default. Nothing
contained in this Article Twelve shall limit the right of the Trustee or the
Holders to take any action or accelerate the maturity of the Notes pursuant to
Article Six or to pursue any rights or remedies hereunder or under applicable
law, subject to the rights, if any, under this Article Twelve of the holders
from time to time, of Senior Indebtedness of any Subsidiary Guarantor.
90
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls.
------------
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 13.02. Notices.
-------
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by commercial courier service, by telex, by telecopier or registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Company or any Subsidiary Guarantor:
Terex Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
with a copy to:
Robinson, Silverman, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
91
if to the Trustee:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Corporate Trust Department
if to the Senior Credit Facility Representative:
Credit Suisse First Boston
Eleven Madison Avenue - 20th Floor
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Syndication/Agency Department
Each of the Company, the Subsidiary Guarantors, the Trustee,
and the Senior Credit Facility Representative by written notice to each other
such Person may designate additional or different addresses for notices to such
Person. Any notice or communication to the Company, the Subsidiary Guarantors,
the Trustee and the Senior Credit Facility Representative shall be deemed to
have been given or made as of the date so delivered if personally delivered;
when receipt is confirmed if delivered by commercial courier service; when
receipt is acknowledged, if faxed; and five (5) calendar days after mailing if
sent by registered or certified mail, postage prepaid (except that a notice of
change of address shall not be deemed to have been given until actually received
by the addressee).
Any notice or communication mailed to a Holder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other Holders.
--------------------------------------------
Holders may communicate pursuant to the TIA Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Notes. The Company, the Subsidiary Guarantors, the Trustee, the Registrar and
any other Person shall have the protection of the TIA Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
92
Upon any request or application by the Company to the Trustee
to take or refrain from taking any action under this Indenture, the Company
shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance
satisfactory to the Trustee, stating that, in the opinion of the
signers, all conditions precedent to be performed by the Company, if
any, provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company,
if any, provided for in this Indenture relating to the proposed action
have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition and the definitions
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is reasonably necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with;
provided, that with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or a certificate of an appropriate
public official.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 13.07. Legal Holidays.
--------------
93
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in New
York, New York or at such place of payment are not required to be open. If a
payment date is a Legal Holiday at such place, payment may be made at such place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
SECTION 13.08. Governing Law.
-------------
THIS INDENTURE AND THE NOTES (AND THE SUBSIDIARY GUARANTEES
RELATING THERETO) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE.
SECTION 13.09. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
SECTION 13.10. No Recourse Against Others.
--------------------------
No past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company, any Subsidiary Guarantor
or of the Trustee shall have any liability for any obligations of the Company
under the Notes or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
SECTION 13.11. Successors.
----------
All agreements of the Company and the Subsidiary Guarantors in
this Indenture and the Notes shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 13.12. Duplicate Originals.
-------------------
All parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
SECTION 13.13. Severability.
------------
94
In case any one or more of the provisions in this Indenture or
in the Notes shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms of provisions hereof.
95
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
Issuer:
TEREX CORPORATION
By:
-----------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Senior Vice President
Subsidiary Guarantors:
KOEHRING CRANES, INC.
By:
-----------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
PAYHAULER CORP.
By:
-----------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
PPM CRANES, INC.
By:
-----------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
TEREX CRANES, INC.
By:
-----------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
TEREX MINING EQUIPMENT, INC.
By:
-----------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
TEREX-RO CORPORATION
By:
-----------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
TEREX-TELELECT, INC.
By:
-----------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
THE AMERICAN CRANE CORPORATION
By:
-----------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
O&K ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
By:
-----------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
AMIDA INDUSTRIES, INC.
By:
-----------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
CEDARAPIDS, INC.
By:
-----------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
STANDARD ▇▇▇▇▇▇, INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
STANDARD ▇▇▇▇▇▇ PRODUCTS, INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
BL-PEGSON (USA), INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ AMERICA, INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ENGINEERING, INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
EARTHKING, INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Secretary
FINLAY HYDRASCREEN USA, INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
POWERSCREEN HOLDINGS USA, INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
POWERSCREEN INTERNATIONAL LLC
By: Powerscreen North America, Inc.,
Managing Member
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
POWERSCREEN NORTH AMERICA, INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
POWERSCREEN USA, LLC
By: Powerscreen Holdings USA, Inc.,
Managing Member
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ INDUSTRIES, INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
TEREX ▇▇▇▇▇▇▇, INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Vice President
Trustee:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
-----------------------------------
Name:
Title:
RULE 144A/REGULATION S APPENDIX
FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT
TO RULE 144A AND TO CERTAIN PERSONS IN OFFSHORE
TRANSACTIONS IN RELIANCE ON REGULATION S
PROVISIONS RELATING TO INITIAL NOTES,
------------------------------------
PRIVATE EXCHANGE NOTES
----------------------
AND EXCHANGE NOTES
1. Definitions.
-----------
1.1 Definitions.
-----------
For the purposes of this Appendix the following terms shall
have the meanings indicated below, provided that all capitalized terms used but
not defined shall have the meanings given such terms in the Indenture:
"Depositary" means The Depository Trust Company, its nominees
and their respective successors and assigns.
"Exchange Notes" means (i) the 10 3/8% Senior Subordinated
Notes due 2011 to be issued pursuant to this Indenture in connection with a
Registered Exchange Offer pursuant to a Registration Rights Agreement and (ii)
Additional Notes, if any, issued in the form of 10 3/8% Senior Subordinated
Notes due 2011 pursuant to a registration statement filed with the SEC under the
Securities Act.
"Initial Purchasers" means (i) with respect to the Initial
Notes issued on March 29, 2001, Credit Suisse First Boston Corporation, ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc., ABN AMRO Incorporated, Credit Lyonnais Securities (USA) Inc.,
Fleet Securities, Inc. and PNC Capital Markets, Inc. and (ii) with respect to
each issuance of Additional Notes, the Persons purchasing such Additional Notes
under the related Purchase Agreement.
"Initial Notes" means (i) $300,000,000 principal amount of 10
3/8% Senior Subordinated Notes due 2011, issued on March 29, 2001 and (ii)
Additional Notes, if any, issued in the form of 10 3/8% Senior Subordinated
Notes due 2011 in a transaction exempt from the registration requirements of the
Securities Act.
"Private Exchange" means the offer by the Company, pursuant to
a Registration Rights Agreement, to the Initial Purchasers to issue and deliver
to each Initial
I
Purchaser, in exchange for the Initial Notes held by the Initial Purchaser as
part of its initial distribution, a like aggregate principal amount of Private
Exchange Notes.
"Private Exchange Notes" means the 10 3/8% Senior Subordinated
Private Exchange Notes due 2011, if any, to be issued pursuant to this Indenture
to the Initial Purchasers in a Private Exchange.
"Purchase Agreement" means (i) with respect to the Initial
Notes issued on March 29, 2001, the Purchase Agreement dated March 22, 2001,
among the Company, the Subsidiary Guarantors and the initial purchasers named
therein and (ii) with respect to each issuance of Additional Notes, the purchase
agreement or underwriting agreement among the Company, the Subsidiary Guarantors
and the Persons purchasing such Additional Notes.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means the offer by the Company,
pursuant to a Registration Rights Agreement, to certain Holders of Initial
Notes, to issue and deliver to such Holders, in exchange for such Initial Notes,
a like aggregate principal amount of Exchange Notes registered under the
Securities Act.
"Registration Rights Agreement" means (i) with respect to the
Initial Notes issued on March 29, 2001, the Registration Rights Agreement dated
March 29, 2001 among the Company, the Subsidiary Guarantors and the initial
purchasers named therein, and (ii) with respect to each issuance of Additional
Notes issued in a transaction exempt from the registration requirements of the
Securities Act, the registration rights agreement, if any, among the Company,
the guarantors thereunder and the Persons purchasing such Additional Notes under
the related Purchase Agreement.
"Securities" means the Initial Notes, the Exchange Notes and
the Private Exchange Notes, treated as a single class.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depositary), or any successor person
thereto and shall initially be the Trustee.
"Shelf Registration Statement" means the shelf registration
statement issued by the Company, in connection with the offer and sale of
Initial Notes, Exchange Notes or Private Exchange Notes, pursuant to a
Registration Rights Agreement.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend set forth in Section 2.3(b) hereto.
II
1.2 Other Definitions
Term Defined in Section:
---- ------------------
"Agent Members"............................ 2.1(b)
"Global Security".......................... 2.1(a)
"Regulation S"............................. 2.1(a)
"Rule 144A"................................ 2.1(a)
2. The Securities.
--------------
2.1 Form and Dating.
---------------
On March 29, 2001, $300,000,000 of the Initial Notes are being
offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Securities. Initial Notes offered and sold to a QIB
in reliance on Rule 144A under the Securities Act ("Rule 144A") or in reliance
on Regulation S under the Securities Act ("Regulation S"), in each case as
provided in the Purchase Agreement, and Additional Notes, if any, issued in the
form of Exchange Notes, shall be issued initially in the form of one or more
permanent global Securities in definitive, fully registered form without
interest coupons with the global securities legend and restricted securities
legend set forth in Exhibit 1 hereto (each, a "Global Security"), which shall be
deposited on behalf of the purchasers of the Initial Notes or Additional Notes,
as applicable, represented thereby with the Trustee as custodian for the
Depositary (or with such other custodian as the Depositary may direct), and
registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply
only to a Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary for such
Global Security or Global Securities or the nominee of such Depositary and (b)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions or held by the Trustee as custodian for the
Depositary.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the
III
Depositary or by the Trustee as the custodian of the Depositary or under such
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices of such Depositary
governing the exercise of the rights of a holder of a beneficial interest in any
Global Security.
(c) Certificated Securities. Except as provided in this
Section 2.1 or Section 2.3 or 2.4 of this Appendix, owners of beneficial
interests in Global Securities will not be entitled to receive physical delivery
of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and deliver: (1) On
March 29, 2001, $300.0 million 10 3/8% Senior Subordinated Notes due 2011, (2)
any Additional Notes for original issue in an aggregate principal amount
specified in the written order of the Company pursuant to Section 2.02 of the
Indenture and (3) Exchange Notes or Private Exchange Notes for issue in a
Registered Exchange Offer or a Private Exchange, respectively, in exchange for a
like principal amount of Initial Notes, in each case upon a written order of the
Company in the form of an Officers' Certificate. Such order shall specify the
amount of the Securities to be authenticated and the date on which the original
issue of Notes is to be authenticated and whether the Securities are to be
Initial Notes, Exchange Notes or Private Exchange Notes and in the case of an
issuance of Additional Notes pursuant to Section 2.15 of the Indenture, shall
certify, among other things that such issuance will not be prohibited by Section
4.13 of the Indenture.
2.3 Transfer and Exchange.
---------------------
(a) Transfer and Exchange of Global Securities.
------------------------------------------
(i) The transfer and exchange of Global Securities or
beneficial interests therein shall be effected through the Depositary,
in accordance with this Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Depositary
therefor. A transferor of a beneficial interest in a Global Security
shall deliver to the Registrar a written order given in accordance with
the Depositary's procedures containing information regarding the
participant account of the Depositary to be credited with a beneficial
interest in the Global Security. The Registrar shall, in accordance
with such instructions instruct the Depositary to credit to the account
of the Person specified in such instructions a beneficial interest in
the Global Security and to debit the account of the Person making the
transfer the beneficial interest in the Global Security being
transferred.
IV
(ii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4 of this Appendix),
a Global Security may not be transferred as a whole except by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
(iii) In the event that a Global Security is exchanged for
Securities in definitive registered form pursuant to Section 2.4 of
this Appendix or Section 2.10 of this Indenture, prior to the
consummation of a Registered Exchange Offer or the effectiveness of a
Shelf Registration Statement with respect to such Securities, such
Securities may be exchanged only in accordance with such procedures as
are substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of
the Initial Notes intended to ensure that such transfers comply with
Rule 144A or Regulation S, as the case may be) and such other
procedures as may from time to time be adopted by the Company.
(b) Legend.
------
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Security certificate evidencing Initial Notes and
Private Exchange Notes (and all Securities issued in exchange therefor
or in substitution thereof, other than Exchange Notes) shall bear a
legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS NOTE
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER
THAT (A) THIS NOTE MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (i) INSIDE THE UNITED STATES TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (ii)
OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH
RULE
V
904 UNDER THE SECURITIES ACT, (iii) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER (IF AVAILABLE) OR (iv) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (i) THROUGH (iv) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under the Securities Act, the
Registrar shall permit the Holder thereof to exchange such Transfer
Restricted Security for a certificated Security that does not bear the
legend set forth above and rescind any restriction on the transfer of
such Transfer Restricted Security, if the Holder certifies in writing
to the Registrar that its request for such exchange was made in
reliance on Rule 144 (such certification to be in the form set forth on
the reverse of the Security).
(iii) After a transfer of any Initial Notes or Private
Exchange Notes during the period of the effectiveness of a Shelf
Registration Statement with respect to such Initial Notes or Private
Exchange Notes, as the case may be, all requirements pertaining to
legends on such Initial Notes or such Private Exchange Notes will cease
to apply, but the requirements requiring such Initial Notes or such
Private Exchange Notes issued to certain Holders be issued in global
form will continue to apply, and Initial Notes or Private Exchange
Notes in global form without legends will be available to the
transferee of the Holder of such Initial Notes or Private Exchange
Notes upon exchange of such transferring Holder's Initial Notes or
Private Exchange Notes or directions to transfer such Holder's interest
in the Global Security, as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Notes pursuant to which Holders of such Initial
Notes are offered Exchange Notes in exchange for their Initial Notes,
all requirements pertaining to such Initial Notes that Initial Notes
issued to certain Holders be issued in global form will continue to
apply and Initial Notes in global form with the restricted securities
legend set forth in Exhibit 1 hereto will be available to Holders of
such Initial Notes that do not exchange their Initial Notes, and
Exchange Notes in global form without the restricted securities legend
set forth in Exhibit 1 hereto will be available to Holders that
exchange such Initial Notes in such Registered Exchange Offer.
VI
(v) Upon the consummation of a Private Exchange with respect
to the Initial Notes pursuant to which Holders of such Initial Notes
are offered Private Exchange Notes in exchange for their Initial Notes,
all requirements pertaining to such Initial Notes that Initial Notes
issued to certain Holders be issued in global form will still apply,
and Private Exchange Notes in global form with the restricted
securities legend set forth in Exhibit 1 hereto will be available to
Holders that exchange such Initial Notes in such Private Exchange.
(c) Cancellation or Adjustment of Global Security. At such
time as all beneficial interests in a Global Security have either been exchanged
for certificated Securities, redeemed, repurchased or canceled, such Global
Security shall be returned to the Depositary for cancellation or retained and
canceled by the Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Security is exchanged for certificated
Securities, redeemed, repurchased or canceled, the principal amount of
Securities represented by such Global Security shall be reduced and an
adjustment shall be made on the books and records of the Trustee (if it is then
the Securities Custodian for such Global Security) with respect to such Global
Security, by the Trustee or the Securities Custodian, to reflect such reduction.
(d) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate certificated
Securities and Global Securities at the Registrar's or any
co-registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchange or transfer pursuant to Sections 2.10, 3.06, 4.16, 4.17
and Section 9.06 of this Indenture).
(iii) The Registrar or any co-registrar shall not be required
to register the transfer of or exchange of (a) any certificated
Security selected for redemption in whole or in part pursuant to
Article III of this Indenture, except the unredeemed portion of any
certificated Security being redeemed in part, or (b) any Security for a
period beginning 15 Business Days before the mailing of a notice of an
offer to repurchase or redeem Securities or 15 Business Days before an
Interest Payment Date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent,
the Registrar or any co-registrar may deem and treat the person in
whose name a Security is registered as the absolute
VII
owner of such Security for the purpose of receiving payment of
principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the
Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(e) No Obligation of the Trustee.
----------------------------
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a
participant in the Depositary or other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of
any notice (including any notice of redemption) or the payment of any
amount, under or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be made
to Holders under the Securities shall be given or made only to or upon
the order of the registered Holders (which shall be the Depositary or
its nominee in the case of a Global Security). The rights of beneficial
owners in any Global Security shall be exercised only through the
Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee may rely and shall be fully protected in
relying upon information furnished by the Depositary with respect to
its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depositary participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 Certificated Securities,
-----------------------
(a) A Global Security deposited with the Depositary or with
the Trustee as custodian for the Depositary pursuant to Section 2.1 shall be
transferred to the beneficial owners thereof in the form of certificated
Securities in an aggregate principal amount equal
VIII
to the principal amount of such Global Security, in exchange for such Global
Security, only if such transfer complies with Section 2.3 and (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time such Depositary ceases to be a
"clearing agency" registered under the Exchange Act and a successor depositary
is not appointed by the Company within 90 days of such notice, or (ii) an Event
of Default has occurred and is continuing or (iii) the Company, in its sole
discretion, notifies the Trustee in writing that it elects to cause the issuance
of certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section shall be surrendered by the Depositary
to the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate principal
amount of certificated Securities of authorized denominations. Any portion of a
Global Security transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $1,000 and any integral
multiple thereof and registered in such names as the Depositary shall direct.
Any certificated Initial Note delivered in exchange for an interest in the
Global Security shall, except as otherwise provided by Section 2.3(b), bear the
restricted securities legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of either of the events
specified in Section 2.4(a) above, the Company will promptly make available to
the Trustee a reasonable supply of certificated Securities in definitive, fully
registered form without interest coupons.
IX
EXHIBIT 1
TO RULE 144A/REGULATION S
APPENDIX
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN,
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THIS INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT
(A) THIS NOTE MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE
X
TRANSFERRED ONLY (i) INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (ii) OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE
904 UNDER THE SECURITIES ACT, (iii) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (iv)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (i) THROUGH (iv) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
XI
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Amount of decrease Amount of increase in Principal Amount of this Global Signature of authorized
Principal Amount of this Principal Amount of this Security following such decrease Officer of ▇▇▇▇▇▇▇ or
Date of Exchange Global Security Global Security or increase Securities Custodian
XII
EXHIBIT A
FORM OF INITIAL NOTE
CUSIP No.:
TEREX CORPORATION
10 3/8% SENIOR SUBORDINATED NOTE DUE 2011
No. $
TEREX CORPORATION, a Delaware corporation (the "Company,"
which term includes any successor entity), for value received promises to pay to
_______ or registered assigns, the principal sum of ______ Dollars, on April 1,
2011.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto or imprinted hereon.
TEREX CORPORATION
By:
------------------------
Name:
Title:
By:
------------------------
Name:
Dated: ____________ Title:
A-1
Certificate of Authentication
This is one of the 10 3/8% Senior Subordinated Notes due 2011
referred to in the within-mentioned Indenture.
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
Dated: ____________ By:
---------------------------------
Authorized Signatory
A-2
(REVERSE OF SECURITY)
10 3/8% SENIOR SUBORDINATED NOTE DUE 2011
1. Interest. TEREX CORPORATION, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above; provided, however, that if a Registration Default
(as defined in the Registration Rights Agreement) occurs, additional interest
will accrue on this Note at a rate of 0.50% per annum, from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured, calculated on the
principal amount of this Note as of the date on which such interest is payable.
Such interest is payable in addition to any other interest payable from time to
time with respect to this Note. The Trustee will not be deemed to have notice of
a Registration Default until it shall have received actual notice of such
Registration Default. Interest on the Notes will accrue from the most recent
date on which interest has been paid or, if no interest has been paid, from
[March 29, 2001] [date of issuance of Additional Notes]. The Company will pay
interest semi-annually in arrears on each Interest Payment Date, commencing
[October 1, 2001] [first interest payment date after issuance of Additional
Notes]. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
The Company shall pay interest on overdue principal at the
rate borne by the Notes plus 1% per annum and on overdue installments of
interest (without regard to any applicable grace periods) at such higher rate to
the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date immediately preceding the Interest
Payment Date even if the Notes are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender Notes to
a Paying Agent to collect principal payments. The Company shall pay principal
and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by its check payable in such U.S.
Legal Tender. The Company may deliver any such interest payment to the Paying
Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, United States Trust
Company of New York, a New York banking corporation (the "Trustee"), will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-Registrar without notice to the Holders.
4. Indenture and Subsidiary Guarantee. The Company issued the
Notes under an Indenture, dated as of March 29, 2001 (the "Indenture"), among
the Company, the Subsidiary Guarantors named therein and the Trustee. This Note
is one of a duly authorized issue of Initial Notes of the Company designated as
its 10 3/8% Senior Subordinated Notes due 2011. The Company shall be entitled to
issue Additional Notes pursuant to Section 2.15
A-3
of the Indenture; provided, that such issuance is not prohibited by Section 4.13
of the Indenture. The Initial Notes issued on March 29, 2001, any Additional
Notes, and any Private Exchange Notes and Exchange Notes issued pursuant to the
Indenture are treated as a single class of securities under the Indenture.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of
the Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the TIA Act for a statement of them. The Notes are general unsecured
obligations of the Company. Payment on each Note is guaranteed on a senior
subordinated basis by the Subsidiary Guarantors pursuant to Article Eleven of
the Indenture. To the extent of any conflict between the terms of the Notes and
the Indenture, the applicable terms of the Indenture shall govern.
5. Subordination. The Notes are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash of all Senior Indebtedness of the Company, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. Each Holder by his acceptance hereof agrees to be bound
by such provisions and authorizes and expressly directs the Trustee, on his
behalf, to take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purposes.
6. Redemption.
(a) Optional Redemption. Except as set forth in the following
paragraph, the Notes will not be redeemable at the option of the Company prior
to April 1, 2006. Thereafter, the Notes will be redeemable, at the Company's
option, in whole or in part, at any time or from time to time, upon not less
than 30 nor more than 60 days' prior notice mailed by first-class mail to each
Holder's registered address, at the following redemption prices (expressed in
percentages of principal amount), plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the 12-month period commencing on April 1 of the years set forth below:
Redemption
Period Price
------ -------------
2006 ............................................... 105.188 %
2007 ............................................... 103.458 %
2008 ............................................... 101.729 %
2009 and thereafter ................................ 100.000 %
(b) Optional Redemption Upon Public Equity Offerings. In addition, at
any time and from time to time prior to April 1, 2004, the Company may redeem in
the aggregate up to 33.3% of the original principal amount of the Notes
(including the original
A-4
principal amount of any Additional Notes) with the proceeds of one or more
Public Equity Offerings, at a redemption price (expressed as a percentage of
principal amount) of 110.375% plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, however,
that at least 65% of the aggregate principal amount of the Notes originally
outstanding (including the original principal amount of any Additional Notes)
must remain outstanding after each such redemption.
In order to effect the foregoing redemption with the proceeds
of any Public Equity Offering, the Company shall make such redemption not more
than 120 days after the consummation of any such Public Equity Offering.
7. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at such Holder's registered address. Notes in
denominations of $1,000 may be redeemed only in whole. Notes in denominations
larger than $1,000 may be redeemed in part but only in multiples of $1,000.
Except as set forth in the Indenture, if monies for the
redemption of the Notes called for redemption shall have been deposited with the
Paying Agent for redemption on such Redemption Date, then, unless the Company
defaults in the payment of such Redemption Price plus accrued and unpaid
interest, if any, the Notes called for redemption will cease to bear interest
from and after such Redemption Date and the only right of the Holders of such
Notes will be to receive payment of the Redemption Price plus accrued and unpaid
interest, if any.
8. Offers to Purchase. Sections 4.16 and 4.17 of the Indenture
provide that, in the event of certain Asset Dispositions (as defined in the
Indenture) and upon the occurrence of a Change of Control (as defined in the
Indenture), and subject to further limitations contained therein, the Company
will make an offer to purchase certain amounts of the Notes in accordance with
the procedures set forth in the Indenture.
9. Registration Rights. Pursuant to the Registration Rights
Agreement (as defined in the Indenture), the Company will be obligated to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for the Company's 10 3/8% Senior
Subordinated Notes due 2011 in the form of Exchange Notes, which shall have been
registered under the Securities Act, or the Company's 10 3/8% Senior
Subordinated Private Exchange Notes due 2011 (the "Private Exchange Notes"), in
each case in like principal amount and having terms identical in all material
respects to the Initial Notes. The Holders of the Initial Notes shall be
entitled to receive certain additional interest payments if such exchange offer
is not consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement. The Company
shall notify the Trustee of the amount of any such payments.
10. Denominations; Transfer; Exchange. The Notes are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder
A-5
shall register the transfer of or exchange of Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange of any Notes or portions thereof selected for redemption (except, in
the case of Notes to be redeemed in part, the portion of such Notes not to be
redeemed) or any Note for a period beginning 15 Business Days before the mailing
of a notice of an offer to repurchase or a notice of redemption or 15 Business
Days before any Interest Payment Date.
11. Persons Deemed Owners. The registered Holder of a Note
shall be treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company (subject to any applicable abandoned property
law). After that, all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If the Company
at any time deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of and interest on the Notes to
redemption or maturity and complies with the other provisions of the Indenture
relating thereto, the Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of and interest on the Notes).
14. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, omission, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated Notes, or comply
with Article Five of the Indenture or make any other change that does not
adversely affect in any material respect the rights of any Holder of a Note.
15. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, incur additional Indebtedness, make payments in respect of
its Capital Stock or certain Indebtedness, enter into transactions with
Affiliates, create dividend or other payment restrictions affecting
Subsidiaries, merge or consolidate with any other Person, sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets or adopt a plan of liquidation. Such limitations are subject to a number
of important qualifications and exceptions. The Company must annually report to
the Trustee on compliance with such limitations.
A-6
16. Successors. When a successor assumes, in accordance with
the Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor will be released from those obligations.
17. Defaults and Remedies. If an Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Certain events of bankruptcy and insolvency are Events of Default which will
result in the Notes being due and payable immediately upon the occurrence of
such Events of Default. Holders of Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Notes unless it has received indemnity reasonably
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Notes then outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Notes notice of any continuing
Default or Event of Default (except a Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
18. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
19. No Recourse Against Others. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company or any Subsidiary Guarantor shall have any liability for any obligation
of the Company under the Notes or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each Holder of a
Note by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
20. Authentication. This Note shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of authentication
on this Note.
21. Governing Law. The Laws of the State of New York shall
govern this Note and the Indenture (and the Subsidiary Guarantees relating
thereto), without regard to principles of conflict of laws.
22. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes as a convenience to the Holders
of the Notes. No
A-7
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
24. Indenture. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
25. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Note, by acceptance hereof, acknowledges and agrees to the
provisions of the Registration Rights Agreement, including, without limitation,
the obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made to:
TEREX CORPORATION, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Secretary.
A-8
[FORM OF NOTATION ON NOTE RELATING TO SUBSIDIARY GUARANTEE]
SUBSIDIARY GUARANTEE
Koehring Cranes, Inc., Payhauler Corp., PPM Cranes, Inc.,
Terex Cranes, Inc., Terex Mining Equipment, Inc., Terex-RO Corporation,
Terex-Telelect, Inc., The American Crane Corporation, O&K ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Inc., Amida Industries, Inc. Cedarapids, Inc., Standard ▇▇▇▇▇▇, Inc., Standard
▇▇▇▇▇▇ Products, Inc., BL-Pegson (USA), Inc., ▇▇▇▇▇▇▇ America, Inc., ▇▇▇▇▇▇▇
Engineering, Inc., EarthKing, Inc., Finlay Hydrascreen USA, Inc., Powerscreen
Holdings USA, Inc., Powerscreen International LLC, Powerscreen North America,
Inc., Powerscreen USA, LLC, ▇▇▇▇▇ Industries, Inc. and Terex ▇▇▇▇▇▇▇, Inc.
(collectively, the "Subsidiary Guarantors"), have each jointly and severally
unconditionally guaranteed on a senior subordinated basis (such guarantee by
each Subsidiary Guarantor being referred to herein as the "Subsidiary
Guarantee") (i) the due and punctual payment of the principal of and interest on
the Notes, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal and interest, if any, on the Notes, to the extent lawful, and
the due and punctual performance of all other obligations of the Company to the
Holders or the Trustee all in accordance with the terms set forth in Article
Eleven of the Indenture and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, subject to any applicable
grace period, by acceleration or otherwise.
The obligations of each Subsidiary Guarantor to the Holders of
Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture
are expressly set forth and are senior subordinated obligations of each
Subsidiary Guarantor, to the extent and in the manner provided, in Articles
Eleven and Twelve of the Indenture, and reference is hereby made to such
Indenture for the precise terms of the Subsidiary Guarantee therein made.
No stockholder, officer, director, employee or incorporator,
as such, past, present or future, of each Subsidiary Guarantor shall have any
liability under the Subsidiary Guarantee by reason of his or its status as such
stockholder, officer, director, employee or incorporator.
The Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Notes upon which the
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
A-9
KOEHRING CRANES, INC.
By:
-----------------------------------------
Name:
Title:
PAYHAULER CORP.
By:
-----------------------------------------
Name:
Title:
PPM CRANES, INC.
By:
-----------------------------------------
Name:
Title:
TEREX CRANES, INC.
By:
-----------------------------------------
Name:
Title:
TEREX MINING EQUIPMENT, INC.
By:
-----------------------------------------
Name:
Title:
A-10
TEREX-RO CORPORATION
By:
-----------------------------------------
Name:
Title:
TEREX-TELELECT, INC.
By:
-----------------------------------------
Name:
Title:
THE AMERICAN CRANE CORPORATION
By:
-----------------------------------------
Name:
Title:
O&K ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
By:
-----------------------------------------
Name:
Title:
AMIDA INDUSTRIES, INC.
By:
-----------------------------------------
Name:
Title:
A-11
CEDARAPIDS, INC.
By:
-----------------------------------------
Name:
Title:
STANDARD ▇▇▇▇▇▇, INC.
By:
------------------------------------------
Name:
Title:
STANDARD ▇▇▇▇▇▇ PRODUCTS, INC.
By:
------------------------------------------
Name:
Title:
BL-PEGSON (USA), INC.
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ AMERICA, INC.
By:
------------------------------------------
Name:
Title:
A-12
▇▇▇▇▇▇▇ ENGINEERING, INC.
By:
------------------------------------------
Name:
Title:
EARTHKING, INC.
By:
------------------------------------------
Name:
Title:
FINLAY HYDRASCREEN USA, INC.
By:
------------------------------------------
Name:
Title:
POWERSCREEN HOLDINGS USA, INC.
By:
------------------------------------------
Name:
Title:
POWERSCREEN INTERNATIONAL LLC
By:
------------------------------------------
Name:
Title:
POWERSCREEN NORTH AMERICA, INC.
By:
------------------------------------------
Name:
Title:
A-13
POWERSCREEN USA, LLC
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇ INDUSTRIES, INC.
By:
------------------------------------------
Name:
Title:
TEREX ▇▇▇▇▇▇▇, INC.
By:
------------------------------------------
Name:
Title:
A-14
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint , agent to transfer
-------------------------------------
this Note on the books of the Company. The agent may substitute another to act
for him.
Date: Signed:
------------------- ---------------------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
----------------------------
(Signature must be guaranteed by an "eligible guarantor
institution," that is, a bank, stockbroker, savings and loan association or
credit union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended).
In connection with any transfer of this Note occurring prior
to the date which is the earlier of (i) the date of the declaration by the SEC
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) [two years from date of original issuance], the undersigned
confirms that it has not utilized any general solicitation or general
advertising in connection with the transfer and that this Note is being
transferred:
A-15
[Check One]
---------
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the
Securities Act; or
(3) __ outside the United States to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act; or
(4) __ pursuant to the exemption from registration provided by Rule
144 under the Securities Act; or
(5) __ pursuant to an effective registration statement under the
Securities Act; or
(6) __ pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered Holder thereof; provided that if box (3), (4) or (6) is checked, the
Company or the Trustee may require, prior to registering any such transfer of
the Notes, in its sole discretion, such legal opinions, certifications and other
information as the Trustee or the Company has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
A-16
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in the Appendix to the Indenture shall have been satisfied.
Dated: Signed:
-------------------- -------------------------------------------
(Sign exactly as name
appears on the other side
of this Security)
Signature Guarantee:
----------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
--------------------- -----------------------------------------------
NOTICE: To be executed by
an executive officer
A-17
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.16 or Section 4.17 of the Indenture, check the
appropriate box:
Section 4.16 [ ]
Section 4.17 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.16 or Section 4.17 of the Indenture, state
the amount you elect to have purchased:
$-------------------
Dated: __________________ ____________________________________
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Note in
every particular without alteration
or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee:
------------------------------------
(Signature must be guaranteed by an "eligible guarantor
institution," that is, a bank, stockbroker, savings and loan association or
credit union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended).
A-18
EXHIBIT B
FORM OF EXCHANGE NOTE AND PRIVATE EXCHANGE NOTE
CUSIP No.:________
TEREX CORPORATION
10 3/8% SENIOR SUBORDINATED [PRIVATE EXCHANGE] NOTE DUE 2011
No. $
TEREX CORPORATION, a Delaware corporation (the "Company,"
which term includes any successor entity), for value received promises to pay to
or registered assigns, the principal sum of ______ Dollars, on April 1, 2011.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto or imprinted hereon.
TEREX CORPORATION
By:
------------------------
Name:
Title:
By:
------------------------
Name:
Dated: ________________ Title:
B-1
Certificate of Authentication
This is one of the 10 3/8% Senior Subordinated [Private
Exchange] Notes due 2011 referred to in the within-mentioned Indenture.
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
Dated: By:
-------------------------- -----------------------
Authorized Signatory
[If the Note is to be issued in global form add the Global Securities Legend
from Exhibit 1 to the Appendix and the attachment from such Exhibit 1 captioned
"[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR DECREASES IN
GLOBAL SECURITY".]
[If the Note is a Private Exchange Note issued in a Private Exchange to an
Initial Purchaser holding an unsold portion of its initial allotment, add the
restricted securities legend from Exhibit 1 to Appendix A and replace the
Assignment Form with that included in Exhibit A.]
B-2
(REVERSE OF SECURITY)
10 3/8% SENIOR SUBORDINATED [PRIVATE EXCHANGE] NOTE DUE 2011
1. Interest. TEREX CORPORATION, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above; [provided, however, that if a Registration Default
(as defined in the Registration Rights Agreement) occurs, additional cash
interest will accrue on this Note at a rate of 0.50% per annum from and
including the date on which any such Registration Default shall occur to but
excluding the date on which all Registration Defaults have been cured,
calculated on the principal amount of this Note as of the date on which such
interest is payable. Such interest is payable in addition to any other interest
payable from time to time with respect to this Note. The Trustee will not be
deemed to have notice of a Registration Default until it shall have received
actual notice of such Registration Default].1 Interest on the Notes will accrue
from [the most recent date on which interest has been paid on the Initial Note
in exchange for which this [Exchange Note] [Private Exchange Note] was issued]
[date of issuance of Additional Notes]. The Company will pay interest
semi-annually in arrears on each Interest Payment Date, commencing [October 1,
2001] [first interest payment date after issuance of Additional Notes]. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal at the
rate borne by the Notes plus 1% per annum and on overdue installments of
interest (without regard to any applicable grace periods) at such higher rate to
the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date immediately preceding the Interest
Payment Date even if the Notes are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender Notes to
a Paying Agent to collect principal payments. The Company shall pay principal
and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by its check payable in such U.S.
Legal Tender. The Company may deliver any such interest payment to the Paying
Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, United States Trust
Company of New York, a New York banking corporation (the "Trustee"), will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-Registrar without notice to the Holders.
--------
1 Insert if at the time of issuance of the Exchange Note or Private Exchange
Note (as the case may be) neither the Registered Exchange Offer has been
consummated nor a Shelf Registration Statement has been declared effective in
accordance with a Registration Rights Agreement.
B-3
4. Indenture and Guarantee. The Company issued the Notes under
an Indenture, dated as of March 29, 2001 (the "Indenture"), among the Company,
the Subsidiary Guarantors named therein and the Trustee. [This Note is one of a
duly authorized issue of Exchange Notes of the Company designated as its 10 3/8%
Senior Subordinated Notes due 2011.] [This Note is one of a duly authorized
issue of Private Exchange Notes of the Company designated as its 10 3/8% Senior
Subordinated Private Exchange Notes due 2011.] The Company shall be entitled to
issue Additional Notes pursuant to Section 2.15 of the Indenture; provided, that
such issuance is not prohibited by Section 4.13 of the Indenture. The Initial
Notes issued on March 29, 2001, any Additional Notes, and any Private Exchange
Notes and Exchange Notes issued pursuant to the Indenture are treated as a
single class of securities under the Indenture. Capitalized terms herein are
used as defined in the Indenture unless otherwise defined herein. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the TIA of 1939 (15 U.S. Code Sections 77aaa-77bbbb)
(the "TIA"), as in effect on the date of the Indenture. Notwithstanding anything
to the contrary herein, the Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and the TIA for a statement of them. The
Notes are general unsecured obligations of the Company. Payment on each Note is
guaranteed on a senior subordinated basis by the Subsidiary Guarantors pursuant
to Article Eleven of the Indenture. To the extent of any conflict between the
terms of the Notes and the Indenture, the applicable terms of the Indenture
shall govern.
5. Subordination. The Notes are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash of all Senior Indebtedness of the Company, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. Each Holder by his acceptance hereof agrees to be bound
by such provisions and authorizes and expressly directs the Trustee, on his
behalf, to take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purposes.
6. Redemption.
(a) Optional Redemption. Except as set forth in the following
paragraph, the Notes will not be redeemable at the option of the Company prior
to April 1, 2006. Thereafter, the Notes will be redeemable, at the Company's
option, in whole or in part, at any time or from time to time, upon not less
than 30 nor more than 60 days' prior notice mailed by first-class mail to each
Holder's registered address, at the following redemption prices (expressed in
percentages of principal amount), plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the 12-month period commencing on April 1 of the years set forth below:
Redemption
Period Price
------ -------------
2006 .......................................... 105.188 %
2007 .......................................... 103.458 %
2008 .......................................... 101.729 %
B-4
2009 and thereafter ........................... 100.000%
(b) Optional Redemption Upon Public Equity Offerings. In
addition, at any time and from time to time prior to April 1, 2004, the Company
may redeem in the aggregate up to 33.3% of the original principal amount of the
Notes (including the original principal amount of any Additional Notes) with the
proceeds of one or more Public Equity Offerings, at a redemption price
(expressed as a percentage of principal amount) of 110.375% plus accrued
interest to the redemption date (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date); provided, however, that at least 65% of the aggregate principal
amount of the Notes originally outstanding (including the original principal
amount of any Additional Notes) must remain outstanding after each such
redemption.
In order to effect the foregoing redemption with the proceeds
of any Public Equity Offering, the Company shall make such redemption not more
than 120 days after the consummation of any such Public Equity Offering.
7. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at such Holder's registered address. Notes in
denominations of $1,000 may be redeemed only in whole. Notes in denominations
larger than $1,000 may be redeemed in part but only in multiples of $1,000.
Except as set forth in the Indenture, if monies for the
redemption of the Notes called for redemption shall have been deposited with the
Paying Agent for redemption on such Redemption Date, then, unless the Company
defaults in the payment of such Redemption Price plus accrued and unpaid
interest, if any, the Notes called for redemption will cease to bear interest
from and after such Redemption Date and the only right of the Holders of such
Notes will be to receive payment of the Redemption Price plus accrued and unpaid
interest, if any.
8. Offers to Purchase. Sections 4.16 and 4.17 of the Indenture
provide that, in the event of certain Asset Dispositions (as defined in the
Indenture) and upon the occurrence of a Change of Control (as defined in the
Indenture), and subject to further limitations contained therein, the Company
will make an offer to purchase certain amounts of the Notes in accordance with
the procedures set forth in the Indenture.
9. Denominations; Transfer; Exchange. The Notes are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange of
Notes in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture. The Registrar need not
register the transfer of or exchange of any Notes or portions thereof selected
for redemption (except, in the case of Notes to be redeemed in part, the portion
of such Notes not to be redeemed) or any Note for a period beginning 15 Business
Days before the mailing of a notice of an offer to repurchase or a notice of
redemption or 15 Business Days before any Interest Payment Date.
B-5
10. Persons Deemed Owners. The registered Holder of a Note
shall be treated as the owner of it for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company (subject to any applicable abandoned property
law). After that, all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity. If the Company
at any time deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of and interest on the Notes to
redemption or maturity and complies with the other provisions of the Indenture
relating thereto, the Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of and interest on the Notes).
13. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, omission, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated Notes, or comply
with Article Five of the Indenture or make any other change that does not
adversely affect in any material respect the rights of any Holder of a Note.
14. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, incur additional Indebtedness, make payments in respect of
its Capital Stock or certain Indebtedness, enter into transactions with
Affiliates, create dividend or other payment restrictions affecting
Subsidiaries, merge or consolidate with any other Person, sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets or adopt a plan of liquidation. Such limitations are subject to a number
of important qualifications and exceptions. The Company must annually report to
the Trustee on compliance with such limitations.
15. Successors. When a successor assumes, in accordance with
the Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor will be released from those obligations.
16. Defaults and Remedies. If an Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Certain events of bankruptcy and insolvency are Events of Default which will
result in the Notes being due and payable immediately upon the occurrence of
such Events of Default. Holders of Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture
B-6
or the Notes unless it has received indemnity reasonably satisfactory to it. The
Indenture permits, subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Notes then outstanding to direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
17. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company or any Subsidiary Guarantor shall have any liability for any obligation
of the Company under the Notes or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each Holder of a
Note by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
19. Authentication. This Note shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of authentication
on this Note.
20. Governing Law. The Laws of the State of New York shall
govern this Note and the Indenture (and the Subsidiary Guarantees relating
thereto), without regard to principles of conflict of laws.
21. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
22. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes as a convenience to the Holders
of the Notes. No representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the other identification
numbers printed hereon.
23. Indenture. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
[24. Registration Rights. Pursuant to the Registration Rights
Agreement (as defined in the Indenture), the Company will have certain
obligations to the Holders of the Exchange Notes and the Private Exchange Notes.
The Holders of the Exchange Notes and the Private Exchange Notes shall be
entitled to receive certain additional interest payments upon
B-7
certain conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement. The Company shall notify the Trustee of the
amount of any such payments.]2
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture, which has the text of this
Note in larger type. Requests may be made to: TEREX CORPORATION, ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Secretary.
--------
2 To be included if applicable.
B-8
[FORM OF NOTATION ON NOTE RELATING TO SUBSIDIARY GUARANTEE]
SUBSIDIARY GUARANTEE
Koehring Cranes, Inc., Payhauler Corp., PPM Cranes, Inc.,
Terex Cranes, Inc., Terex Mining Equipment, Inc., Terex-RO Corporation,
Terex-Telelect, Inc., The American Crane Corporation, O&K ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Inc., Amida Industries, Inc., Cedarapids, Inc., Standard ▇▇▇▇▇▇, Inc., Standard
▇▇▇▇▇▇ Products, Inc., BL-Pegson (USA), Inc., ▇▇▇▇▇▇▇ America, Inc., ▇▇▇▇▇▇▇
Engineering, Inc., EarthKing, Inc., Finlay Hydrascreen USA, Inc., Powerscreen
Holdings USA, Inc., Powerscreen International LLC, Powerscreen North America,
Inc., Powerscreen USA, LLC, ▇▇▇▇▇ Industries, Inc. and Terex ▇▇▇▇▇▇▇, Inc.
(collectively, the "Subsidiary Guarantors"), have each unconditionally
guaranteed on a senior subordinated basis (such guarantee by the Subsidiary
Guarantors being referred to herein as the "Subsidiary Guarantee") (i) the due
and punctual payment of the principal of and interest on the Notes, subject to
any applicable grace period, whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on the overdue principal and interest,
if any, on the Notes, to the extent lawful, and the due and punctual performance
of all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms set forth in Article Eleven of the Indenture and (ii)
in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration or
otherwise.
The obligations of each Subsidiary Guarantor to the Holders of
Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture
are expressly set forth and are senior subordinated obligations of each
Subsidiary Guarantor, to the extent and in the manner provided, in Articles
Eleven and Twelve of the Indenture, and reference is hereby made to such
Indenture for the precise terms of the Subsidiary Guarantee therein made.
No stockholder, officer, director, employee or incorporator,
as such, past, present or future, of each Subsidiary Guarantor shall have any
liability under the Subsidiary Guarantee by reason of his or its status as such
stockholder, officer, director, employee or incorporator.
The Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Notes upon which the
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
B-9
KOEHRING CRANES, INC.
By:
---------------------------------------
Name:
Title:
PAYHAULER CORP.
By:
---------------------------------------
Name:
Title:
PPM CRANES, INC.
By:
---------------------------------------
Name:
Title:
TEREX CRANES, INC.
By:
---------------------------------------
Name:
Title:
TEREX MINING EQUIPMENT, INC.
By:
---------------------------------------
Name:
Title:
B-10
TEREX-RO CORPORATION
By:
---------------------------------------
Name:
Title:
TEREX-TELELECT, INC.
By:
---------------------------------------
Name:
Title:
THE AMERICAN CRANE CORPORATION
By:
---------------------------------------
Name:
Title:
O&K ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
By:
---------------------------------------
Name:
Title:
AMIDA INDUSTRIES, INC.
By:
---------------------------------------
Name:
Title:
B-11
CEDARAPIDS, INC.
By:
---------------------------------------
Name:
Title:
STANDARD ▇▇▇▇▇▇, INC.
By:
----------------------------------------
Name:
Title:
STANDARD ▇▇▇▇▇▇ PRODUCTS, INC.
By:
----------------------------------------
Name:
Title:
BL-PEGSON (USA), INC.
By:
----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ AMERICA, INC.
By:
----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ENGINEERING, INC.
By:
----------------------------------------
Name:
Title:
B-12
EARTHKING, INC.
By:
----------------------------------------
Name:
Title:
FINLAY HYDRASCREEN USA, INC.
By:
----------------------------------------
Name:
Title:
POWERSCREEN HOLDINGS USA, INC.
By:
----------------------------------------
Name:
Title:
POWERSCREEN INTERNATIONAL LLC
By:
----------------------------------------
Name:
Title:
POWERSCREEN NORTH AMERICA, INC.
By:
----------------------------------------
Name:
Title:
POWERSCREEN USA, LLC
By:
----------------------------------------
Name:
Title:
B-13
▇▇▇▇▇ INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
TEREX ▇▇▇▇▇▇▇, INC.
By:
----------------------------------------
Name:
Title:
B-14
ASSIGNMENT FORM 3
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint , agent to transfer
-----------------------------------
this Note on the books of the Company. The agent may substitute another to act
for him.
Date: Signed:
------------------- ---------------------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
----------------------------
(Signature must be guaranteed by an "eligible guarantor institution," that is, a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended).
--------
3 If the Note is a Private Exchange Note, replace the Assignment Form
with that included in Exhibit A to the Indenture.
B-15
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.16 or Section 4.17 of the Indenture, check the
appropriate box:
Section 4.16 [ ]
Section 4.17 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.16 or Section 4.17 of the Indenture, state
the amount you elect to have purchased:
$-------------------
Dated: __________________ ____________________________________
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Note in
every particular without alteration
or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee:
------------------------------------
(Signature must be guaranteed by an "eligible guarantor
institution," that is, a bank, stockbroker, savings and loan association or
credit union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended).
B-16
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) ..................................... 7.10
(a)(2) ..................................... 7.10
(a)(3) .....................................
N.A.
(a)(4) ..................................... N.A.
(a)(5) ..................................... 7.08; 7.10
(b) ..................................... 7.08; 7.10; 13.02
(c) ..................................... N.A.
311(a) .....................................
7.11
(b) ..................................... 7.11
(c) ..................................... N.A.
312(a) .....................................
2.05
(b) ..................................... 13.03
(c) ..................................... 13.03
313(a) .....................................
7.06
(b)(1) ..................................... N.A.
(b)(2) ..................................... 7.06
(c) ..................................... 7.06; 13.02
(d) ..................................... 7.06
314(a) ..................................... 4.07; 4.08; 13.02
(b) ..................................... N.A.
(c)(1) ..................................... 13.04
(c)(2) ..................................... 13.04
(c)(3) ..................................... N.A.
(d) ..................................... N.A.
(e) ..................................... 13.05
(f) ..................................... N.A.
315(a) ..................................... 7.01(b)
(b) ..................................... 7.05; 13.02
(c) ..................................... 7.01(a)
(d) ..................................... 7.01(c)
(e) ..................................... 6.11
316(a)(last sentence)...................................... 2.09
(a)(1)(A) ..................................... 6.05
(a)(1)(B) ..................................... 6.04
(a)(2) ..................................... N.A.
(b) ..................................... 6.07
(c) ..................................... 9.05
317(a)(1) ..................................... 6.08
(a)(2) ..................................... 6.09
1
(b) ..................................... 2.04
318(a) ..................................... 13.01
(c) ..................................... 13.01
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
2
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.....................................................1
SECTION 1.02. Incorporation by Reference of TIA..............................21
SECTION 1.03. Rules of Construction..........................................22
SECTION 1.04. One Class of Securities........................................22
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating................................................23
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount.......23
SECTION 2.03. Registrar and Paying Agent.....................................24
SECTION 2.04. Paying Agent To Hold Assets in Trust...........................24
SECTION 2.05. Noteholder Lists...............................................25
SECTION 2.06. [Intentionally Omitted]........................................25
SECTION 2.07. Replacement Notes..............................................25
SECTION 2.08. Outstanding Notes..............................................25
SECTION 2.09. Treasury Notes.................................................26
SECTION 2.10. Temporary Notes................................................26
SECTION 2.11. Cancellation...................................................26
SECTION 2.12. Defaulted Interest.............................................27
SECTION 2.13. CUSIP Number...................................................27
SECTION 2.14. Deposit of Moneys..............................................27
SECTION 2.15. Issuance of Additional Notes...................................27
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.............................................28
SECTION 3.02. Selection of Notes To Be Redeemed..............................28
SECTION 3.03. Notice of Redemption...........................................29
SECTION 3.04. Effect of Notice of Redemption.................................30
SECTION 3.05. Deposit of Redemption Price....................................30
SECTION 3.06. Notes Redeemed in Part.........................................30
SECTION 3.07. Optional Redemption............................................31
ARTICLE FOUR
COVENANTS
i
SECTION 4.01. Payment of Notes...............................................32
SECTION 4.02. Maintenance of Office or Agency................................32
SECTION 4.03. Corporate Existence............................................32
SECTION 4.04. Payment of Taxes and Other Claims..............................32
SECTION 4.05. Maintenance of Properties and Insurance........................33
SECTION 4.06. Compliance Certificate; Notice of Default......................33
SECTION 4.07. Compliance with Laws...........................................34
SECTION 4.08. SEC Reports....................................................34
SECTION 4.09. Waiver of Stay, Extension or Usury Laws........................35
SECTION 4.10. Limitation on Restricted Payments..............................35
SECTION 4.11. Limitation on Restrictions on Distributions from Restricted
Subsidiaries...................................................37
SECTION 4.12. Limitation on Affiliate Transactions...........................38
SECTION 4.13. Limitation on Indebtedness.....................................39
SECTION 4.14. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries........................................40
SECTION 4.15. Limitation on Other Senior Subordinated Debt...................41
SECTION 4.16. Change of Control..............................................41
SECTION 4.17. Limitation on Sales of Assets and Subsidiary Stock.............42
SECTION 4.18. Limitation on Indebtedness and Preferred Stock of Restricted
Subsidiaries...................................................45
SECTION 4.19. Limitation on Liens Securing Subordinated Indebtedness.........46
SECTION 4.20. Future Subsidiary Guarantors...................................47
SECTION 4.21. Limitation on Designations of Unrestricted Subsidiaries........47
SECTION 4.22. Limitation on Lines of Business................................48
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets of the Company........49
SECTION 5.02. Successor Corporation Substituted for the Company..............50
SECTION 5.03. Merger, Consolidation and Sale of Assets of Any Subsidiary
Guarantor......................................................50
SECTION 5.04. Successor Corporation Substituted for Subsidiary Guarantor.....50
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default..............................................51
SECTION 6.02. Acceleration...................................................52
SECTION 6.03. Other Remedies.................................................53
SECTION 6.04. Waiver of Past Defaults........................................53
SECTION 6.05. Control by Majority............................................54
SECTION 6.06. Limitation on Suits............................................54
ii
SECTION 6.07. Rights of Holders To Receive Payment...........................54
SECTION 6.08. Collection Suit by Trustee.....................................55
SECTION 6.09. Trustee May File Proofs of Claim...............................55
SECTION 6.10. Priorities.....................................................55
SECTION 6.11. Undertaking for Costs..........................................56
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee..............................................56
SECTION 7.02. Rights of Trustee..............................................57
SECTION 7.03. Individual Rights of Trustee...................................58
SECTION 7.04. Trustee's Disclaimer...........................................59
SECTION 7.05. Notice of Default..............................................59
SECTION 7.06. Reports by Trustee to Holders..................................59
SECTION 7.07. Compensation and Indemnity.....................................59
SECTION 7.08. Replacement of Trustee.........................................60
SECTION 7.09. Successor Trustee by Merger, Etc...............................62
SECTION 7.10. Eligibility; Disqualification..................................62
SECTION 7.11. Preferential Collection of Claims Against Company..............62
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Discharge of Liability on Notes; Defeasance....................63
SECTION 8.02. Conditions to Defeasance.......................................63
SECTION 8.03. Application of Trust Money.....................................65
SECTION 8.04. Repayment to Company...........................................65
SECTION 8.05. Indemnity for Government Obligations...........................65
SECTION 8.06. Reinstatement..................................................66
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.....................................66
SECTION 9.02. With Consent of Holders........................................67
SECTION 9.03. Effect on Senior Indebtedness..................................68
SECTION 9.04. Compliance with TIA............................................68
SECTION 9.05. Revocation and Effect of Consents..............................68
SECTION 9.06. Notation on or Exchange of Notes...............................69
SECTION 9.07. Trustee To Sign Amendments, Etc................................69
SECTION 9.08. Payment for Consent............................................70
ARTICLE TEN
SUBORDINATION
iii
SECTION 10.01. Notes Subordinated to Senior Indebtedness......................70
SECTION 10.02. No Payment on Notes in Certain Circumstances...................70
SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc.................72
SECTION 10.04. Payments May Be Paid Prior to Dissolution......................73
SECTION 10.05. Subrogation....................................................74
SECTION 10.06. Obligations of the Company Unconditional.......................74
SECTION 10.07. Notice to Trustee..............................................75
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating
Agent..........................................................75
SECTION 10.09. Trustee's Relation to Senior Indebtedness......................75
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness..................76
SECTION 10.11. Noteholders Authorize Trustee To Effectuate Subordination of
Notes..........................................................76
SECTION 10.12. This Article Ten Not To Prevent Events of Default..............77
SECTION 10.13. Trustee's Compensation Not Prejudiced..........................77
SECTION 10.14. Acceleration of Payment of Notes...............................77
ARTICLE ELEVEN
GUARANTEES
SECTION 11.01. Unconditional Guarantee........................................78
SECTION 11.02. Subordination of Subsidiary Guarantee..........................79
SECTION 11.03. Severability...................................................79
SECTION 11.04. Release of Subsidiary Guarantor from the Subsidiary
Guarantee......................................................79
SECTION 11.05. Limitation on Amount Guaranteed; Contribution by Subsidiary
Guarantors.....................................................79
SECTION 11.06. Waiver of Subrogation..........................................81
SECTION 11.07. Execution of Subsidiary Guarantee..............................81
SECTION 11.08. Waiver of Stay, Extension or Usury Laws........................82
SECTION 11.09. Effectiveness of Subsidiary Guarantee..........................82
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Subsidiary Guarantee Obligations Subordinated to Senior
Indebtedness of Subsidiary Guarantors..........................83
SECTION 12.02. No Payment on Notes in Certain Circumstances...................83
SECTION 12.03. Payment Over of Proceeds upon Dissolution, Etc.................85
SECTION 12.04. Payments May Be Paid Prior to Dissolution......................86
SECTION 12.05. Subrogation....................................................87
SECTION 12.06. Obligations of Subsidiary Guarantor Unconditional..............87
SECTION 12.07. Notice to Trustee..............................................88
iv
SECTION 12.08. Reliance on Judicial Order or Certificate of Liquidating
Agent..........................................................88
SECTION 12.09. Trustee's Relation to Subsidiary Guarantor's Senior
Indebtedness...................................................89
SECTION 12.10. Subordination Rights Not Impaired by Acts or Omissions of
Subsidiary Guarantors or Holders of Subsidiary Guarantors'
Senior Indebtedness............................................89
SECTION 12.11. Noteholders Authorize Trustee To Effectuate Subordination of
Notes..........................................................90
SECTION 12.12. This Article Twelve Not To Prevent Events of Default...........90
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls...................................................91
SECTION 13.02. Notices........................................................91
SECTION 13.03. Communications by Holders with Other Holders...................92
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.............92
SECTION 13.05. Statements Required in Certificate or Opinion..................93
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar......................93
SECTION 13.07. Legal Holidays.................................................93
SECTION 13.08. Governing Law..................................................94
SECTION 13.09. No Adverse Interpretation of Other Agreements..................94
SECTION 13.10. No Recourse Against Others.....................................94
SECTION 13.11. Successors.....................................................94
SECTION 13.12. Duplicate Originals............................................94
SECTION 13.13. Severability...................................................95
Signatures ...............................................................95
Appendix ............................................................... I
Exhibit A - Form of Initial Note and Guarantee.............................. A-1
Exhibit B - Form of Exchange Note and Private Exchange Note and Guarantee... B-1
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of this Indenture.
v