EXHIBIT 4.3
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ROADWAY CORPORATION
AS ISSUER
THE GUARANTORS
NAMED HEREIN
AND
[__________]
AS TRUSTEE
INDENTURE
DATED AS OF [__________], 2002
PROVIDING FOR ISSUANCE OF
GUARANTEED DEBT SECURITIES IN SERIES
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DETAILED CROSS-REFERENCE TABLE
Trust Indenture Act Indenture
------------------- ---------
Section Section
------- -------
310(a)(1).................................................... 7.10
(a)(2).................................................... 7.10
(a)(3).................................................... N.A.
(a)(4).................................................... N.A.
(a)(5).................................................... 7.10
(b)....................................................... 7.08
(c)....................................................... N.A.
311(a)....................................................... 7.03
(b)....................................................... 7.03
(c)....................................................... N.A.
312(a)....................................................... 11.02
(b)....................................................... 11.02
(c)....................................................... 11.02
313(a)....................................................... 7.06
(b)....................................................... 7.06
(c)....................................................... 7.06
314(a)....................................................... 4.10, 4.11
(b)(1).................................................... N.A.
(b)(2).................................................... N.A.
(c)(1).................................................... 11.04
(c)(2).................................................... 11.04
(c)(3).................................................... N.A.
(d)....................................................... N.A.
(e)....................................................... 11.05
(f)....................................................... N.A.
315(a)....................................................... 7.01, 7.02
(b)....................................................... 7.02, 7.05
(c)....................................................... 7.01
(d)....................................................... 7.02
(e)....................................................... 6.12, 7.02
316(a)(last sentence)........................................ 2.05
(a)(1)(A)................................................. 6.05
(a)(1)(B)................................................. 6.02, 6.04
(a)(2).................................................... N.A.
(b)....................................................... 6.06, 6.07
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Trust Indenture Act Indenture
------------------- ---------
Section Section
------- -------
317(a)(1).................................................... 6.08
(a)(2).................................................... 6.09
(b)....................................................... 2.03
318(a)....................................................... N.A.
(b)....................................................... N.A.
(c)....................................................... 11.01
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TABLE OF CONTENTS
Page
ARTICLE I. Definitions and Incorporation by Reference..............................1
Section 1.01. Definitions....................................................1
Section 1.02. Rules Of Construction..........................................6
Section 1.03. Incorporation by Reference of the Trust Indenture Act..........7
ARTICLE II. The Notes..............................................................7
Section 2.01. Unlimited in Amount, Issuable in Series, Form and Dating.......7
Section 2.02. Execution and Authentication...................................9
Section 2.03. Registrar, Paying Agent and Authenticating Agent;
Paying Agent to Hold Money in Trust...........................11
Section 2.04. Replacement Notes.............................................11
Section 2.05. Outstanding Notes.............................................12
Section 2.06. Temporary Notes...............................................12
Section 2.07. Cancellation..................................................13
Section 2.08. CUSIP Numbers.................................................13
Section 2.09. Transfer and Exchange.........................................13
Section 2.10. Noteholder Lists..............................................16
Section 2.11. Defaulted Interest............................................16
ARTICLE III. Redemption...........................................................16
Section 3.01. Method and Effect of Redemption...............................16
Section 3.02. Deposit of Redemption Price...................................17
ARTICLE IV. Covenants.............................................................18
Section 4.01. Payment of Notes..............................................18
Section 4.02. Maintenance of Office or Agency...............................18
Section 4.03. Existence.....................................................19
Section 4.04. Payment of Taxes and Other Claims.............................19
Section 4.05. Maintenance of Properties and Insurance.......................19
Section 4.06. Limitation on Liens...........................................19
Section 4.07. Limitation on Sale and Leaseback Transactions.................20
Section 4.08. Guarantees by Subsidiaries....................................21
Section 4.09. Financial Reports.............................................22
Section 4.10. Reports to Trustee............................................22
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ARTICLE V. Merger, Consolidation and Disposition of Assets........................23
Section 5.01. Merger, Consolidation and Disposition of Assets
by the Company................................................23
Section 5.02. Consolidation or Sale of Assets by a Guarantor................23
ARTICLE VI. Default and Remedies..................................................24
Section 6.01. Events of Default.............................................24
Section 6.02. Acceleration..................................................26
Section 6.03. Other Remedies................................................26
Section 6.04. Waiver of Past Defaults.......................................26
Section 6.05. Control by Majority...........................................26
Section 6.06. Limitation on Suits...........................................27
Section 6.07. Rights of Holders to Receive Payment..........................27
Section 6.08. Collection Suit by Trustee....................................27
Section 6.09. Trustee May File Proofs of Claim..............................28
Section 6.10. Priorities....................................................28
Section 6.11. Restoration of Rights and Remedies............................28
Section 6.12. Undertaking for Costs.........................................28
Section 6.13. Rights and Remedies Cumulative................................29
Section 6.14. Delay or Omission Not Waiver..................................29
Section 6.15. Waiver of Stay, Extension or Usury Laws.......................29
ARTICLE VII. The Trustee..........................................................29
Section 7.01. General.......................................................29
Section 7.02. Certain Rights of Trustee.....................................30
Section 7.03. Individual Rights of Trustee..................................31
Section 7.04. Trustee's Disclaimer..........................................31
Section 7.05. Notice of Default.............................................31
Section 7.06. Reports by Trustee to Holders.................................31
Section 7.07. Compensation and Indemnity....................................32
Section 7.08. Replacement of Trustee........................................32
Section 7.09. Successor Trustee by Merger...................................33
Section 7.10. Eligibility...................................................33
Section 7.11. Money Held in Trust...........................................33
ARTICLE VIII. Defeasance and Discharge............................................34
Section 8.01. Discharge of Company's Obligations............................34
Section 8.02. Legal Defeasance..............................................35
Section 8.03. Covenant Defeasance...........................................36
Section 8.04. Application of Trust Money....................................37
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Section 8.05. Repayment to Company..........................................37
Section 8.06. Reinstatement.................................................37
ARTICLE IX. Amendments, Supplements and Waivers...................................37
Section 9.01. Amendments Without Consent of Holders.........................37
Section 9.02. Amendments With Consent of Holders............................38
Section 9.03. Effect of Consent.............................................39
Section 9.04. Trustee's Rights and Obligations..............................40
Section 9.05. Conformity with Trust Indenture Act...........................40
ARTICLE X. Guarantees.............................................................40
Section 10.01. Note Guaranties...............................................40
Section 10.02. Note Guaranty Unconditional...................................40
Section 10.03. Discharge; Reinstatement......................................41
Section 10.04. Waiver by the Guarantors......................................41
Section 10.05. Subrogation and Contribution..................................41
Section 10.06. Stay of Acceleration..........................................42
Section 10.07. Limitation on Amount of Note Guaranty.........................42
Section 10.08. Execution and Delivery of Note Guaranty.......................42
Section 10.09. Release of Guaranty...........................................42
Section 10.10. Liability.....................................................43
ARTICLE XI. Miscellaneous.........................................................43
Section 11.01. Trust Indenture Act of 1939...................................43
Section 11.02. Noteholder Communications; Noteholder Actions.................43
Section 11.03. Notices.......................................................44
Section 11.04. Certificate and Opinion as to Conditions Precedent............44
Section 11.05. Statements Required in Certificate or Opinion.................45
Section 11.06. Payment Date Other Than a Business Day........................45
Section 11.07. Governing Law.................................................45
Section 11.08. No Adverse Interpretation of Other Agreements.................45
Section 11.09. Successors....................................................45
Section 11.10. Duplicate Originals...........................................46
Section 11.11. Separability..................................................46
Section 11.12. Table of Contents and Headings................................46
Section 11.13. No Liability of Directors, Officers, Employees,
Incorporators and Stockholders................................46
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EXHIBIT
EXHIBIT A DTC Legend......................................................A-1
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INDENTURE, dated as of [_________], 2002, among Roadway Corporation, a
Delaware corporation (the "COMPANY"), the guarantors, if any, listed on Schedule
1 hereto (the "GUARANTORS"), and [_________], as Trustee ("TRUSTEE").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness to be issued in one or more series (the
"NOTES"), as herein provided, up to such principal amount as may from time to
time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.
All things necessary to make the Indenture a valid agreement of the
Company, in accordance with its terms, have been done. In addition, the
Guarantors have duly authorized the execution and delivery of the Indenture as
Guarantors of the Notes. All things necessary to make the Indenture a valid
agreement of each Guarantor, in accordance with its terms, have been done, and
each Guarantor has done all things necessary to make the Note Guaranties, when
the Notes are executed by the Company and authenticated and delivered by the
Trustee and duly issued by the Company, the valid obligations of such Guarantor
as hereinafter provided.
This Indenture is subject to, and will be governed by, the provisions
of the Trust Indenture Act that are required to be a part of and govern
indentures qualified under the Trust Indenture Act.
THIS INDENTURE WITNESSETH
For and in consideration of the premises and the purchase from time to
time of the Notes by the Holders thereof, the parties hereto covenant and agree,
for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with") with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGENT" means any Registrar, Paying Agent or Authenticating Agent.
"AGENT MEMBER" means a member of, or a participant in, the Depositary.
"ATTRIBUTABLE DEBT" means, in connection with any sale and leaseback
transaction, at any date as of which the amount thereof is to be determined, the
total net obligations of the lessee for rental payments during the remaining
term of the lease discounted from the respective due dates thereof to such
determination date at a rate per annum equivalent to the interest rate implicit
in the terms of the lease.
"AUTHENTICATING AGENT" refers to a Person engaged to authenticate the
Notes in the stead of the Trustee.
"BANKRUPTCY DEFAULT" has the meaning assigned to such term in Section
6.01.
"BOARD OF DIRECTORS" means the board of directors or comparable
governing body of the Company, or any committee thereof duly authorized to act
on its behalf.
"BOARD RESOLUTION" means a resolution duly adopted by the Board of
Directors which is certified by the Secretary or an Assistant Secretary of the
Company and remains in full force and effect as of the date of its
certification.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City or in the city where the Corporate Trust
Office of the Trustee is located are authorized by law to close.
"CAPITAL LEASE OBLIGATION" means, all obligations required to be
classified and accounted for as a capitalized lease under GAAP, and the amount
of Debt represented by such obligation will be the capitalized amount thereof
determined in accordance with GAAP.
"CAPITAL STOCK" means with respect to any Person, any and all shares of
stock of a corporation, partnership interests or other equivalent interests
(however designated, whether voting or no-voting) in such Person's equity,
entitling the holder to receive a share of the profits and losses of, or
distributions of assets, after liabilities, of such Person.
"CERTIFICATED NOTE" means a Note in registered individual form without
interest coupons.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means the party named as such in the first paragraph of the
Indenture or any successor obligor under the Indenture and the Notes pursuant to
Article 5.
"COMPANY ORDER" means a written request or order signed in the name of
the Company by two Officers of the Company or by an Officer and the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, and delivered
to the Trustee in respect of the series of Notes to which the Company Order
shall relate.
"CONSOLIDATED NET TANGIBLE ASSETS" means, at any date of determination,
total stockholders' equity of the Company and its subsidiaries, less the
aggregate amount of any intangible assets of the Company and its subsidiaries,
determined in accordance with GAAP.
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"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee is administered, which at the date of
the Indenture is located at SunTrust Center, Corporate Trust Department, Sixth
Floor, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
"DEBT" means, with respect to any Person, without duplication,
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(3) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services to the extent recorded as liabilities
under GAAP, excluding trade payables arising in the ordinary course of business;
(4) all Capital Lease Obligations of such Person; and
(5) all Debt of other Persons guaranteed by such Person (including by
securing such Debt by a Lien on any asset of such Person, whether or not such
Debt is assumed by such Person) to the extent so guaranteed.
Debt shall not include indebtedness or amounts owed for compensation to
employees, or for goods or materials purchased or services used in the ordinary
course of business.
"DEFAULT" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"DEPOSITARY" means with respect to the Notes of any series issuable or
issued in whole or in part in the form of one or more Global Notes, the Person
designated as Depositary for such series by the Company, which Depositary shall
be a clearing agency registered under the Exchange Act; and if at any time there
is more than one such Person, "Depositary" as used with respect to the Notes of
any series shall mean the Depositary with respect to the Notes of such series.
The initial Depositary shall be DTC.
"DTC" means The Depository Trust Company, a New York corporation, and
its successors.
"DTC LEGEND" means the legend set forth in Exhibit A.
"EVENT OF DEFAULT" has the meaning assigned to such term in Section
6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time.
"GLOBAL NOTE" means a Note in registered global form without interest
coupons.
3
"GUARANTOR" means any Subsidiary identified as such in accordance with
the first paragraph of this instrument, together with any Subsidiary who shall
execute a supplemental indenture pursuant to which it shall guarantee under this
Indenture any Notes, in each case until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter Guarantors shall include such successor corporation.
"HOLDER" or "NOTEHOLDER" means the registered holder of any Note.
"INDENTURE" means this indenture, as amended or supplemented from time
to time.
"INTEREST", when used with respect to an Original Issue Discount
Security that by its terms bears interest only after maturity, means interest
payable after maturity.
"INTEREST PAYMENT DATE" means, for any series of Notes issued and
outstanding hereunder, the date or dates in each year on which any interest on
such series is due and payable.
"ISSUE DATE" means the date on which a Note is issued to the original
purchaser thereof, as specified in such Note.
"LIEN" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof, other than ordinary course operating
leases, and including in connection with any Capital Lease Obligation).
"NOTES" has the meaning assigned to such term in the Recitals.
"NOTE GUARANTY" means the guarantee of all or any series of the Notes
by a Guarantor in accordance with Article 10.
"OBLIGATIONS" means, with respect to any Debt, all obligations (whether
in existence on the Issue Date or arising afterwards, absolute or contingent,
direct or indirect) for or in respect of principal (when due, upon acceleration,
upon redemption, upon mandatory repayment or repurchase pursuant to a mandatory
offer to purchase, or otherwise), premium, interest, penalties, fees,
indemnification, reimbursement and other amounts payable and liabilities with
respect to such Debt, including all interest accrued or accruing after the
commencement of any bankruptcy, insolvency or reorganization or similar case or
proceeding at the contract rate (including, without limitation, any contract
rate applicable upon default) specified in the relevant documentation, whether
or not the claim for such interest is allowed as a claim in such case or
proceeding.
"OFFICER" means the chairman of the Board of Directors, the president
or chief executive officer, any vice president, the chief financial officer, the
treasurer or any assistant treasurer, or the secretary or any assistant
secretary, of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed in the name of the
Company (i) by the chairman of the Board of Directors, the president or chief
executive officer, treasurer or a vice president and (ii) by the chief financial
officer, or any assistant treasurer or the secretary or any assistant secretary.
4
"OPINION OF COUNSEL" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, satisfactory in its
reasonable discretion to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Note that provides that an
amount less than its principal amount is due and payable upon acceleration after
an Event of Default.
"PAYING AGENT" has the meaning assigned to such term in Section
2.03(a).
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity, including a
government or political subdivision or an agency or instrumentality thereof.
"PRINCIPAL" of any Debt means the principal amount of such Debt (or if
such Debt was issued with original issue discount, the face amount of such Debt
less the remaining unamortized portion of the original issue discount of such
Debt), together with, unless the context otherwise indicates, any premium then
payable on such Debt.
"PRINCIPAL PROPERTY" means any distribution facility, warehouse
facility or group of tractors and/or trailers owned or subsequently acquired by
the Company or any Subsidiary, which has a gross book value (including related
land, improvements, machinery and equipment without deduction of any
depreciation reserves) which on the date as of which the determination is being
made exceeds 0.5% of the Company's Consolidated Net Tangible Assets.
"REGISTER" has the meaning assigned to such term in Section 2.03(a).
"REGISTRAR" has the meaning assigned to such term in Section 2.03(a).
"REGULAR RECORD DATE" means, for the interest payable on any Interest
Payment Date in respect of any series of Notes, except as provided in, or
pursuant to, Board Resolution and/or supplemental indenture (if any) relating
thereto, the day (whether or not a Business Day) that is fifteen days preceding
the applicable Interest Payment Date.
"SALE AND LEASEBACK TRANSACTION" has the meaning assigned to such term
in Section 4.07.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURED DEBT" means Debt that is secured by a Lien on any (i)
Principal Property, (ii) shares of stock owned by the Company or a Subsidiary in
a Subsidiary or (iii) Debt of a Subsidiary held by the Company or a Subsidiary
(in each case whether owned on the date of the Indenture or thereafter acquired
or created).
"SPECIAL RECORD DATE" shall have the meaning provided in Section 2.11.
"STATED MATURITY" means with respect to any Debt, the date specified as
the fixed date on which the final installment of principal of such Debt is due
and payable.
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"SUBORDINATED DEBT" means any Debt of the Company or any Guarantor
which is subordinated in right of payment to the Notes or the Note Guaranty, as
applicable, pursuant to a written agreement to that effect.
"SUBSIDIARY" means with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by, or, in the case of a
partnership, the sole general partner or the managing partner or the only
general partners of which are, such Person and one or more Subsidiaries of such
Person (or a combination thereof). Unless otherwise specified, "Subsidiary"
means a Subsidiary of the Company.
"10% SUBSIDIARY GUARANTOR" has the meaning assigned to such term in
Section 5.02.
"TRUSTEE" means the party named as such in the first paragraph of the
Indenture or any successor trustee under the Indenture pursuant to Article 7.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939.
"U.S. GOVERNMENT OBLIGATIONS" means obligations issued or directly and
fully guaranteed or insured by the United States of America or by any agent or
instrumentality thereof, provided that the full faith and credit of the United
States of America is pledged in support thereof.
"VOTING STOCK" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
Section 1.02. Rules Of Construction. Unless the context otherwise
requires or except as otherwise expressly provided,
(1) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(2) "herein," "hereof" and other words of similar import refer
to the Indenture as a whole and not to any particular Section, Article
or other subdivision;
(3) all references to Sections or Articles or Exhibits refer
to Sections or Articles or Exhibits of or to the Indenture unless
otherwise indicated;
(4) references to agreements or instruments, or to statutes or
regulations, are to such agreements or instruments, or statutes or
regulations, as amended from time to time (or to successor statutes and
regulations); and
(5) in the event that a transaction meets the criteria of more
than one category of permitted transactions or listed exceptions the
Company may classify such transaction as it, in its sole discretion,
determines.
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Section 1.03. Incorporation by Reference of the Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture. The
following Trust Indenture Act terms used in this Indenture have the following
meanings:
(1) "indenture securities" means the Notes.
(2) "indenture securityholder" means a Noteholder.
(3) "indenture to be qualified" means this Indenture.
(4) "indenture trustee" or "institutional trustee" means the
Trustee.
(5) "obligor" on the Notes means the Company and any Guarantor
and any successor obligor on the Notes.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by Commission rule under the Trust Indenture Act have the meanings so
assigned to them.
ARTICLE II.
THE NOTES
Section 2.01. Unlimited in Amount, Issuable in Series, Form and Dating.
The aggregate principal amount of Notes that may be authenticated and delivered
under this Indenture is unlimited. The Notes may be issued in one or more
series. There shall be established in or pursuant to a Board Resolution or an
Officers' Certificate pursuant to authority granted under a Board Resolution or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(a) the title of the Notes of the series (which shall distinguish the
Notes of the series from all other Notes);
(b) any limit upon the aggregate principal amount of Notes of the
series that may be authenticated and delivered under this Indenture (except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes of the series pursuant to this Article
2);
(c) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Notes of the series will be issued;
(d) the date or dates on which the principal of the Notes of the series
is payable;
(e) the rate or rates that may be fixed or variable at which the Notes
of the series shall bear interest, if any, or the manner in which such rate or
rates shall be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates for the Notes of the
7
series and the Regular Record Dates for the determination of Holders to whom
interest is payable;
(f) the place or places where the principal of, premium, if any, and
any interest, if any, on Notes of the series shall be payable or the method of
such payment, if by wire transfer, mail or by other means, if other than as
provided herein;
(g) the price or prices at which (if any), the period or periods within
which (if any) and the terms and conditions upon which (if other than as
provided herein) Notes of the series may be redeemed, in whole or in part, at
the option, or as an obligation, of the Company;
(h) the obligation, if any, of the Company to redeem, purchase or repay
Notes of the series, in whole or in part, pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which and the period and periods within which and the terms and
conditions upon which Notes of the series shall be redeemed, purchased or repaid
pursuant to such obligation;
(i) the dates, if any, on which, and the price or prices at which, the
Notes of the series will be repurchased by the Company at the option of the
Holders thereof and other detailed terms and provisions of such repurchase
obligations;
(j) if other than denominations of $1,000 and any multiple thereof, the
denominations in which Notes of the series shall be issuable;
(k) if other than the principal amount thereof, the portion of the
principal amount of Notes of the series which shall be payable upon declaration
of acceleration of the maturity thereof pursuant to Section 6.02 hereof;
(l) any addition to, change in, or deletion from the covenants set
forth in Articles 4 or 5 that applies to Notes of the series;
(m) any addition to, changes in or deletion from the Events of Default
with respect to the Notes of a particular series and any change in the right of
the Trustee or the requisite Holders of such Notes to declare the principal
amount thereof due and payable pursuant to Section 6.02 hereof;
(n) the Trustee for the series of Notes;
(o) the forms of the Notes of the series in bearer or fully registered
form (and, if in fully registered form, whether the Notes will be issuable, in
whole or in part, as Global Notes);
(p) the terms and conditions, if any, upon which such Global Note or
Notes may be exchanged in whole or in part for other individual Notes, and the
Depositary for such Global Note and Notes;
(q) the provisions, if any, relating to any security provided for the
Notes of the series;
8
(r) any other terms of the series (which terms may modify, supplement
or delete any provision of this Indenture with respect to such series; provided,
however, that no such term may modify or delete any provision hereof if imposed
by the Trust Indenture Act; and provided, further, that any modification or
deletion of the rights, duties or immunities of the Trustee hereunder shall have
been consented to in writing by the Trustee).
(s) the terms and conditions, if any, upon which the Notes of the
series shall be exchanged for or converted into other securities of the Company
or securities of another person;
(t) any depositories, interest rate calculation agents or other agents
with respect to Notes of such series if other than those appointed herein;
(u) whether the Notes rank as senior subordinated Notes or subordinated
Notes or any combination thereof and the terms of any such subordination; and
(v) any addition to, changes in or deletion from the form and terms of
the Note Guaranty as provided under Article 10 with respect to any Notes of the
series.
All Notes of any series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such
Board Resolution or Officers' Certificate or in any such indenture supplemental
hereto. Notes may differ between series in respect of any matters, provided that
all series of Notes shall be equally and ratably entitled to the benefits of
this Indenture.
The principal of, premium, if any and any interest on the Notes shall
be payable at the office or agency of the Company designated in the form of Note
for the series; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear in the Register of Notes referred to in
Section 2.03 hereof.
Each Note shall be in one of the forms approved from time to time by or
pursuant to a Board Resolution or Officers' Certificate, or established in one
or more indentures supplemental hereto. Prior to the delivery of a Note to the
Trustee for authentication in any form approved by or pursuant to a Board
Resolution or Officers' Certificate, the Company shall deliver to the Trustee
the Board Resolution or Officers' Certificate by or pursuant to which such form
of Note has been approved, which Board Resolution or Officers' Certificate shall
have attached thereto a true and correct copy of the form of Note that has been
approved by or pursuant thereto.
The Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Note shall be dated the date of its
authentication.
Section 2.02. Execution and Authentication.
(a) An Officer shall execute the Notes for the Company by facsimile or
manual signature in the name and on behalf of the Company. If an Officer whose
signature is on a Note no longer holds that office at the time the Note is
authenticated, the Note will still be valid.
9
(b) A Note will not be valid until the Trustee manually signs the
certificate of authentication on the Note, with the signature conclusive
evidence that the Note has been authenticated under the Indenture.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Notes of any series executed by the
Company to the Trustee, together with a Company Order for the authentication and
delivery of such Notes. The Company Order may provide that the Notes that are
the subject thereof shall be authenticated and delivered by the Trustee upon the
telephonic, written or other order of Persons designated in the Company Order,
and that such Persons are authorized to specify the terms and conditions of such
Notes, to the extent permitted by the Board Resolutions and/or supplemental
indenture (if any) relating thereto. The Trustee shall execute and deliver the
supplemental indenture (if any) relating to said Notes and the Trustee shall
authenticate and deliver said Notes as specified in such Company Order; provided
that, prior to authentication and delivery of the first Notes of any Series, the
Trustee shall have received:
(1) a copy of the Board Resolutions, with a copy of the form
of Note and the Guarantees approved thereby attached thereto, or a
supplemental indenture in respect of the issuance of the Notes of the
series and the Guarantees, executed on behalf of the Company and the
Guarantors, as applicable;
(2) an Officers' Certificate to the effect that the Notes of
such series comply or will comply with the requirements of this
Indenture and the said Board Resolutions and/or supplemental indenture
(if any); and
(3) an Opinion of Counsel: (A) to the effect that (i) the
Notes of such series and the Guarantees, the Board Resolutions and/or
the supplemental indenture (if any) relating thereto comply or will
comply with the requirements of this Indenture, and (ii) the Notes of
such series and the Guarantees, when authenticated, if applicable, and
delivered by the Trustee in accordance with the said Company Order,
will constitute valid and binding obligations of the Company and the
Guarantors, as applicable, enforceable in accordance with their terms,
subject to (x) bankruptcy and other laws affecting creditors' rights
generally as in effect from time to time, (y) limitations of generally
applicable equitable principles and (z) other exceptions acceptable to
the Trustee and its counsel; and (B) relating to such other matters as
may reasonably be requested by the Trustee or its counsel; and
(4) if the Notes to be issued are Original Issue Discount
Notes, an Officers' Certificate setting forth the yield to maturity for
the Notes or other information sufficient to compute amounts due on
acceleration, or specifying the manner in which such amounts are to be
determined, provided that such yield to maturity and other facts are
not specified in the form of the Notes.
(d) Subject to Section 7.01 hereof, the Trustee shall be fully
protected in relying upon the documents delivered to it as provided above in
connection with the issuance of any series of Notes.
10
(e) The Trustee shall have the right to decline to authenticate and
deliver any Notes under this Section 2.02 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
executive committee or a trust committee of directors of the Trustee in good
faith shall determine that such action would expose the Trustee to liability to
Holders of previously issued and outstanding Notes.
(f) Each Note shall be dated the date of its authentication unless
otherwise specified in the Board Resolutions and/or supplemental indenture
relating thereto.
Section 2.03. Registrar, Paying Agent and Authenticating Agent; Paying
Agent to Hold Money in Trust.
(a) The Company shall maintain an office or agency where Notes of a
particular series may be presented for registration of transfer or for exchange
(the "REGISTRAR") and an office or agency where Securities of that series may be
presented for payment (a "PAYING AGENT"). The Registrar for a particular series
of Securities shall keep a register of the Notes of that series and of their
registration of transfer and exchange (the "REGISTER"). The Company may appoint
one or more co-Registrars and one or more additional paying agents for each
series of Notes. The term "Paying Agent" includes any additional paying agent.
The Company may appoint an Authenticating Agent, in which case each reference in
the Indenture to the Trustee in respect of the obligations of the Trustee to be
performed by that Agent will be deemed to be references to the Agent. The
Company may act as Registrar or (except for purposes of Article 8) Paying Agent.
In each case the Company and the Trustee will enter into an appropriate
agreement with the Agent implementing the provisions of the Indenture relating
to the obligations of the Trustee to be performed by the Agent and the related
rights. The Company initially appoints the Trustee as Registrar and Paying
Agent. The Company may change the Registrar or Paying Agent without notice to
any Holder; provided that upon any bankruptcy or reorganization proceedings
relating to the Company, the Trustee shall serve as Paying Agent for the Notes.
(b) The Company will require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit of
the Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any and interest on the Notes and will promptly notify
the Trustee of any default by the Company in making any such payment. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying
Agent, require the Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed. Upon doing so, the Paying Agent will have no
further liability for the money so paid over to the Trustee.
Section 2.04. Replacement Notes. If a mutilated Note is surrendered to
the Trustee or the Company or if a Holder claims that its Note has been lost,
destroyed or wrongfully taken, the Company will issue and the Trustee will
authenticate a replacement Note of like tenor and principal amount and bearing a
number not contemporaneously outstanding. Every replacement Note is an
additional obligation of the Company and entitled to the benefits of the
Indenture. If required by the Trustee or the Company, an indemnity must be
furnished by the Holder that is
11
sufficient in the judgment of both the Trustee and the Company to protect the
Company and the Trustee from any loss they may suffer if a Note is replaced. The
Company may charge the Holder for the expenses of the Company and the Trustee in
replacing a Note. In case the mutilated, lost, destroyed or wrongfully taken
Note has become or is about to become due and payable, the Company in its
discretion may pay the Note instead of issuing a replacement Note.
Section 2.05. Outstanding Notes.
(a) Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for
(i) Notes cancelled by the Trustee or delivered to it for
cancellation;
(ii) any Note which has been replaced pursuant to Section 2.04
unless and until the Trustee and the Company receive proof satisfactory
to them that the replaced Note is held by a bona fide purchaser; and
(iii) on or after the maturity date or any redemption date,
those Notes payable or to be redeemed or purchased on that date for
which the Trustee (or Paying Agent, other than the Company or an
Affiliate of the Company) holds money sufficient to pay all amounts
then due.
(b) A Note does not cease to be outstanding because the Company or one
of its Affiliates holds the Note, provided that in determining whether the
Holders of the requisite principal amount of the outstanding Notes have given or
taken any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder, Notes owned by the Company or any Affiliate of the
Company will be disregarded and deemed not to be outstanding (it being
understood that in determining whether the Trustee is protected in relying upon
any such request, demand, authorization, direction, notice, consent, waiver or
other action, only Notes which the Trustee knows to be so owned will be so
disregarded). Notes so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Company or any Affiliate of the Company.
Section 2.06. Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare and the Trustee will authenticate temporary
Notes upon a Company Order. Temporary Notes will be substantially in the form of
definitive Notes but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officer executing the temporary
Notes, as evidenced by the execution of the temporary Notes. If temporary Notes
are issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes will be exchangeable for definitive Notes upon surrender of the temporary
Notes at the office or agency of the Company designated for the purpose pursuant
to Section 4.02, without charge to the Holder. Upon surrender for cancellation
of any temporary Notes the Company will execute and the Trustee will
authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged, the temporary
Notes will be entitled to the same benefits under the Indenture as definitive
Notes.
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Section 2.07. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Notes previously authenticated
hereunder that the Company has not issued and sold. Any Registrar or the Paying
Agent will forward to the Trustee any Notes surrendered to it for transfer,
exchange or payment. The Trustee will cancel all Notes surrendered for transfer,
exchange, payment or cancellation and dispose of them in accordance with its
normal procedures or a Company Order. The Trustee shall deliver certification of
all cancelled Notes to the Company. The Company may not issue new Notes to
replace Notes it has paid in full or delivered to the Trustee for cancellation.
Section 2.08. CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers, and the Trustee will use CUSIP numbers in notices of redemption
or exchange as a convenience to Holders. Any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of redemption or exchange. The
Company will promptly notify the Trustee of any change in the CUSIP numbers.
Section 2.09. Transfer and Exchange.
(a) The Notes will be issued in registered form only, without coupons,
and the Company shall cause the Registrar to maintain the Register for
registering the record ownership of the Notes by the Holders and transfers and
exchanges of the Notes.
(b)
(i) Each Global Note will be registered in the name of the
Depositary or its nominee. The Depositary shall be a clearing agency
registered under the Exchange Act. The Company initially appoints DTC
to act as Depositary with respect to the Notes in global form.
Initially, the Global Notes shall be issued to the Depositary,
registered in the name of Cede & Co., as the nominee of the Depositary,
and deposited with the Trustee as custodian for Cede & Co. So long as
DTC is serving as the Depositary thereof, each Global Note will bear
the DTC Legend.
(ii) Each Global Note will be delivered to the Trustee as
custodian for the Depositary. Transfers of a Global Note (but not a
beneficial interest therein) will be limited to transfers thereof in
whole, but not in part, 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 except as set forth in Section 2.09(b)(iv).
(iii) Agent Members will have no rights under the Indenture
with respect to any Global Note held on their behalf by the Depositary,
and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and Holder of
such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, the Depositary or its nominee may grant proxies and
otherwise authorize any Person (including any Agent Member and any
Person that holds
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a beneficial interest in a Global Note through an Agent Member) to take
any action which a Holder is entitled to take under the Indenture or
the Notes, and nothing herein will impair, as between the Depositary
and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any security.
(iv) If (x) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for a Global Note and a
successor depositary is not appointed by the Company within 90 days of
the notice or (y) an Event of Default has occurred and is continuing
and the Trustee has received a request from the Depositary or (z) the
Company notifies the Trustee to effect such exchange, the Trustee will
promptly exchange each beneficial interest in the Global Note for one
or more Certificated Notes in authorized denominations having an equal
aggregate principal amount and registered in the name of the owner of
such beneficial interest, as identified to the Trustee by the
Depositary, and thereupon the Global Note will be deemed canceled.
(c) Each Certificated Note will be registered in the name of the holder
thereof or its nominee.
(d) A Holder may transfer a Note of any series (or a beneficial
interest therein) to another Person or exchange a Note of any series (or a
beneficial interest therein) for another Note or Notes of any authorized
denomination of the same series by presenting to the Trustee a written request
therefor stating the name of the proposed transferee or requesting such an
exchange, accompanied by any certification, opinion or other document required
by the Trustee. The Trustee will promptly register any transfer or exchange that
meets the requirements of this Section by noting the same in the register
maintained by the Trustee for the purpose; provided that
(i) no transfer or exchange will be effective until it is
registered in such register and
(ii) the Trustee will not be required (x) to issue, register
the transfer of or exchange any Note of any particular series for a
period of 15 days before a selection of Notes of that series to be
redeemed or purchased, (y) to register the transfer of or exchange any
Note so selected for redemption or purchase in whole or in part,
except, in the case of a partial redemption or purchase, that portion
of any Note not being redeemed or purchased, or (z) if a redemption or
a purchase is to occur after a Regular Record Date but on or before the
corresponding Interest Payment Date, to register the transfer of or
exchange such Note on or after the Regular Record Date and before the
date of redemption or purchase. Prior to the registration of any
transfer, the Company, the Trustee and their agents will treat the
Person in whose name the Note is registered as the owner and Holder
thereof for all purposes (whether or not the Note is overdue), and will
not be affected by notice to the contrary.
From time to time the Company will execute and the Trustee will
authenticate additional Notes as necessary in order to permit the registration
of a transfer or exchange in accordance with this Section.
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No service charge will be imposed in connection with any transfer or
exchange of any Note, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than a transfer tax or other similar governmental charge
payable upon exchange pursuant to subsection (b)(iv)).
(e)
(i) Global Note to Global Note. If a beneficial interest in a
Global Note of any particular series is transferred or exchanged for a
beneficial interest in another Global Note of the same series, the
Trustee will (x) record a decrease in the principal amount of the
Global Note being transferred or exchanged equal to the principal
amount of such transfer or exchange and (y) record a like increase in
the principal amount of the other Global Note. Any beneficial interest
in one Global Note that is so transferred to a Person who takes
delivery in the form of an interest in another Global Note, or so
exchanged for an interest in another Global Note, will, upon such
transfer or exchange, cease to be an interest in such Global Note and
become an interest in such other Global Note for as long as it remains
such an interest.
(ii) Global Note to Certificated Note. If a beneficial
interest in a Global Note of any particular series is transferred or
exchanged for a Certificated Note of the same series, the Trustee will
(x) record a decrease in the principal amount of such Global Note equal
to the principal amount of such transfer or exchange and (y) deliver
one or more new Certificated Notes of such series in authorized
denominations having an equal aggregate principal amount to the
transferee (in the case of a transfer) or the owner of such beneficial
interest (in the case of an exchange), registered in the name of such
transferee or owner, as applicable.
(iii) Certificated Note to Global Note. If a Certificated Note
of any particular series is transferred or exchanged for a beneficial
interest in a Global Note of the same series, the Trustee will (x)
cancel such Certificated Note, (y) record an increase in the principal
amount of such Global Note equal to the principal amount of such
transfer or exchange and (z) in the event that such transfer or
exchange involves less than the entire principal amount of the canceled
Certificated Note, deliver to the Holder thereof one or more new
Certificated Notes of the same series in authorized denominations
having an aggregate principal amount equal to the untransferred or
unexchanged portion of the canceled Certificated Note, registered in
the name of the Holder thereof.
(iv) Certificated Note to Certificated Note. If a Certificated
Note of any particular series is transferred or exchanged for another
Certificated Note of the same series, the Trustee will (x) cancel the
Certificated Note being transferred or exchanged, (y) deliver one or
more new Certificated Notes of such series in authorized denominations
having an aggregate principal amount equal to the principal amount of
such transfer or exchange to the transferee (in the case of a transfer)
or the Holder of the canceled Certificated Note (in the case of an
exchange), registered in the name of such transferee or Holder, as
applicable, and (z) if such transfer or exchange involves less than the
entire principal amount of the canceled Certificated Note, deliver to
the Holder thereof one or more Certificated Notes of such series in
authorized denominations having
15
an aggregate principal amount equal to the untransferred or unexchanged
portion of the canceled Certificated Note, registered in the name of
the Holder thereof.
Section 2.10. 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 Noteholders, separately by series, and shall
otherwise comply with Trust Indenture Act Section 312(a). If the Trustee is not
the Registrar, the Company shall furnish to the Trustee at least seven Business
Days before each Interest Payment Date and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Noteholders, separately by
series, relating to such Interest Payment Date or request, as the case may be.
Section 2.11. Defaulted Interest. If the Company defaults in a payment
of interest on the Notes of any series, it shall pay the defaulted interest,
plus any interest payable on the defaulted interest, to the extent lawful, to
the Persons who are Holders of such Notes on a subsequent special record date
("SPECIAL RECORD DATE") and such term, as used in this Section 2.11 with respect
to the payment of any defaulted interest, shall mean the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest,
whether or not such day is a Business Day. At least 15 days before the Special
Record Date, the Company shall mail to each Holder of such Notes a notice that
states the Special Record Date, the payment date and the amount of defaulted
interest to be paid.
ARTICLE III.
REDEMPTION
Section 3.01. Method and Effect of Redemption.
(a) If the Company elects to redeem Notes of any series pursuant to the
optional redemption provisions (if any) thereof, it must notify the Trustee of
the redemption date, the redemption price and the principal amount of Notes of
that series to be redeemed by delivering an Officers' Certificate at least 60
days before the redemption date (unless a shorter period is satisfactory to the
Trustee). Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect. If fewer than all of the Notes of any series are being redeemed, the
Officers' Certificate must also specify a record date not less than 15 days
after the date of the notice of redemption is given to the Trustee, and the
Trustee will select the Notes of such series to be redeemed pro rata, by lot or
by any other method the Trustee in its sole discretion deems fair and
appropriate. The Trustee shall notify the Company promptly in writing of the
Notes or portions of Notes to be called for redemption and, in the case of any
Notes selected for partial redemption, the principal amount thereof to be
redeemed. Except as otherwise provided as to any particular series of Notes,
Notes and portions thereof that the Trustee selects shall be in amounts equal to
the minimum authorized denomination for Notes of the series to be redeemed or
any integral multiple thereof, except that if all of the Notes of the series are
to be redeemed, the entire outstanding amount of the Notes of the series held by
such Holder, even if not equal to the minimum authorized denomination for the
Notes of that series, shall be redeemed. Provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption.
16
(b) Notice of redemption must be mailed by First-class mail by the
Company or at the Company's request, by the Trustee in the name and at the
expense of the Company, to Holders whose Notes are to be redeemed at least 30
days but not more than 60 days before the redemption date. The notice of
redemption will identify the Notes to be redeemed and will include or state the
following:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms of
the Notes of the series to be redeemed, plus accrued interest, if any,
to the date fixed for redemption (the "REDEMPTION PRICE");
(3) the place or places where Notes are to be surrendered to
the Paying Agent for redemption;
(4) that Notes called for redemption must be so surrendered to
the Paying Agent in order to collect the redemption price;
(5) that, on the redemption date, the redemption price will
become due and payable on Notes called for redemption, and, unless the
Company defaults in payment of the redemption price, interest on Notes
called for redemption will cease to accrue on and after the redemption
date;
(6) if any Note is redeemed in part, the principal amount of
such Note to be redeemed and that, on and after the redemption date,
upon surrender of such Note, new Notes equal in principal amount to the
unredeemed portion will be issued upon cancellation of the original
Note; and
(7) if any Note contains a CUSIP number, no representation is
being made as to the correctness of the CUSIP number either as printed
on the Notes or as contained in the notice of redemption and that the
Holder should rely only on the other identification numbers printed on
the Notes.
(c) Once notice of redemption is sent to the Holders, Notes called for
redemption become due and payable at the redemption price on the redemption
date, and upon surrender of the Notes called for redemption, the Company shall
redeem such Notes at the redemption price. Commencing on the redemption date,
Notes redeemed will cease to accrue interest. Upon surrender of any Note
redeemed in part, the Holder will receive a new Note equal in principal amount
to the unredeemed portion of the surrendered Note.
Section 3.02. Deposit of Redemption Price. On or prior to any
redemption date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 4.01) an amount of money sufficient to pay the
redemption price of, and (except if the redemption date shall be an Interest
Payment Date, unless otherwise specified in or pursuant to the Board Resolutions
or in the supplemental indenture executed in connection with the particular
series of Notes) any accrued interest on, all the Notes or portions thereof
which are to be redeemed on that date.
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ARTICLE IV.
COVENANTS
Section 4.01. Payment of Notes.
(a) The Company agrees to pay the principal of, premium, if any and
interest on the Notes of each series on the dates and in the manner provided in
the Notes and the Indenture. Not later than 10:00 A.M. (New York City time) on
the due date of any principal of, premium, if any or interest on any Notes, or
any redemption or purchase of the Notes, the Company will deposit with the
Trustee (or Paying Agent) money in immediately available funds sufficient to pay
such amounts, provided that if the Company or any Affiliate of the Company is
acting as Paying Agent, it will, on or before each due date, segregate and hold
in a separate trust fund for the benefit of the Holders a sum of money
sufficient to pay such amounts until paid to such Holders or otherwise disposed
of as provided in the Indenture. In the case the Company acts as Paying Agent,
the Company will promptly notify the Trustee of its compliance with this
paragraph.
(b) An installment of principal or interest will be considered paid on
the date due if the Trustee (or Paying Agent, other than the Company or any
Affiliate of the Company) holds on that date money designated for and sufficient
to pay the installment. If the Company or any Affiliate of the Company acts as
Paying Agent, an installment of principal or interest will be considered paid on
the due date only if paid to the Holders.
(c) The Company agrees to pay interest on overdue principal, and, to
the extent lawful, overdue installments of interest at the rate per annum
specified in the applicable series of Notes.
(d) Payments in respect of the Notes of any series represented by one
or more Global Notes are to be made by wire transfer of immediately available
funds to the accounts specified by the Holders of such Global Notes. With
respect to Certificated Notes of any series, the Company will make all payments
by wire transfer of immediately available funds to the accounts specified by the
Holders thereof or, if no such account is specified, by mailing a check to each
Holder's registered address.
Section 4.02. Maintenance of Office or Agency. Except as may otherwise
be provided in the Board Resolutions and/or supplemental indenture (if any)
relating to any series, the Company will maintain an office or agency where
Notes may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the Company in
respect of the Notes and the Indenture may be served. The Company hereby
initially designates the Corporate Trust Office of the Trustee as such office of
the Company. The Company will 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 fails to maintain any such required office or agency or fails
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served to the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes of any series or a particular series may be
surrendered or presented for any of such purposes and may from time to time
rescind such designations. The Company will give
18
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
Section 4.03. Existence. The Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence and
the existence of each of its Subsidiaries in accordance with their respective
organizational documents, and the material rights, licenses and franchises of
the Company and each Subsidiary, provided that the Company is not required to
preserve any such right, license or franchise, or the existence of any
Subsidiary, if the maintenance or preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries taken as a
whole; and provided further that this Section does not prohibit any transaction
otherwise permitted by Article 5.
Section 4.04. Payment of Taxes and Other Claims. The Company will pay
or discharge, and cause each of its Subsidiaries to pay or discharge before the
same become delinquent (i) all material taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or its income or
profits or property, and (ii) all material lawful claims for labor, materials
and supplies that, if unpaid, might by law become a Lien upon the property of
the Company or any Subsidiary, other than any such tax, assessment, charge or
claim the amount, applicability or validity of which is being contested in good
faith by appropriate proceedings and for which adequate reserves have been
established.
Section 4.05. Maintenance of Properties and Insurance.
(a) The Company will cause all material properties used or useful in
the conduct of its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order (reasonable wear
and tear excepted) as in the judgment of the Company may be necessary so that
the business of the Company and its Subsidiaries may be properly and
advantageously conducted at all times; provided that nothing in this Section
prevents the Company or any Subsidiary from discontinuing the use, operation or
maintenance of any of such properties or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Company, desirable in the
conduct of the business of the Company and its Subsidiaries taken as a whole.
(b) The Company will provide or cause to be provided, for itself and
its Subsidiaries, insurance (including appropriate self-insurance) against loss
or damage of the kinds customarily insured against by corporations similarly
situated and owning like properties with reputable insurers, in such amounts,
with such deductibles and by such methods as are customary for corporations
similarly situated in the industry in which the Company and its Subsidiaries are
then conducting business.
Section 4.06. Limitation on Liens.
(a) The Company will not, nor will it permit any Subsidiary to, incur,
issue, assume, guaranty or create any Secured Debt, without effectively
providing concurrently with the incurrence, issuance, assumption, guaranty or
creation of the Secured Debt that the Notes will be secured equally and ratably
with, or prior to, such Secured Debt unless, after giving effect thereto, the
sum of:
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(i) the aggregate amount of all outstanding Secured Debt of
the Company and its Subsidiaries; plus
(ii) all Attributable Debt in respect of sale and leaseback
transactions relating to a Principal Property, other than Attributable
Debt that is excluded pursuant to clauses (i) to (iv) described under
"Limitations on Sale and Leaseback Transactions" below,
would not exceed 15% of the Company's Consolidated Net Tangible Assets.
(b) The restriction in Section 4.06(a) will not apply to, and there
will be excluded from Secured Debt in any computation under this restriction,
Debt secured by:
(i) Liens on property, shares of capital stock or debt of any
Person existing at the time such Person becomes a Subsidiary; provided
that the Liens were not granted in contemplation of that Person
becoming a Subsidiary;
(ii) Liens on property, shares of capital stock or debt
existing at the time of acquisition thereof by the Company or any
Subsidiary; provided that the Liens were not granted in contemplation
of that acquisition;
(iii) Liens on property, shares of capital stock or Debt to
secure or provide for the payment of all or any part of the purchase
price thereof or the cost of construction, alteration or improvement
thereof; provided that
(1) the amount secured does not exceed the purchase
price or cost of construction or improvement; and
(2) the Lien is created at the time of, or within
twelve months after the acquisition or the completion,
alteration or improvement of such property, whichever is
later;
(iv) Liens in favor of the Company or any of its Subsidiaries;
(v) Liens incurred or assumed in connection with the issuance
of revenue bonds the interest on which is exempt from Federal income
taxation pursuant to Section 103(b) of the Internal Revenue Code;
(vi) Liens existing on the date of the Indenture (other than
Liens of the type described in clause (iv)); or
(vii) any extension, renewal, refunding or replacement of the
foregoing (other than Liens of the type described in clause (iv));
provided that the amount secured by the Lien is not increased and the
Lien does not extend to any additional property or assets.
Section 4.07. Limitation on Sale and Leaseback Transactions.
(a) The Company will not, nor will it permit any Subsidiary to, enter
into any arrangement with any person providing for the leasing by the Company or
any Subsidiary of any
20
Principal Property of the Company or any Subsidiary, which Principal Property
has been or is to be sold or transferred by the Company or such Subsidiary to
such Person (a "SALE AND LEASEBACK TRANSACTION") unless:
(i) the Company or a Subsidiary would be entitled to create
Debt secured by a Lien on the Principal Property to be leased, in a
principal amount equal to the Attributable Debt with respect to such
sale and leaseback transaction as described in Section 4.06 above,
without equally and ratably securing the Notes pursuant to such
Section;
(ii)
(1) the property leased pursuant to such arrangement
is sold for a price at least equal to such property's fair
market value, as determined by an executive officer of the
Company, and
(2) the Company or a Subsidiary, within 360 days
after the sale or transfer shall have been made by the Company
or a Subsidiary, shall apply an amount in cash equal to the
net proceeds of the sale or transfer of the Principal Property
leased pursuant to such arrangement to:
(3) the retirement of Debt of the Company or any
Subsidiary that is ranked equally with the Notes, other than
Debt owed to the Company or any Subsidiary; provided, however,
that no retirement referred to in this clause (A) may be
effected by payment at maturity or pursuant to any mandatory
sinking fund payment provision of Debt; or
(4) the purchase of additional Principal Property
used or to be used by the Company or any of its Subsidiaries;
(iii) the sale and leaseback transaction is entered into
between the Company and a Subsidiary or between Subsidiaries; or
(iv) the applicable lease is for a period, including renewals,
of not more than three years.
Section 4.08. Guarantees by Subsidiaries.
(a) If and for so long as any Subsidiary, directly or indirectly,
guarantees any Debt of the Company, such Subsidiary shall provide a Note
Guaranty, and, if the guaranteed Debt of the Company is Subordinated Debt, the
guarantee of such guaranteed Debt must be subordinated in right of payment to
the Note Guaranty to at least the extent that the guaranteed Debt is
subordinated to the Notes.
(b) The Company will cause any Subsidiary that guarantees any Debt of
the Company to enter into and deliver a Note Guaranty (including any Subsidiary
that had previously been such a guarantor and was subsequently released as a
Guarantor of the Notes). A Subsidiary required to provide a Note Guaranty shall
execute a supplemental indenture to that
21
effect, and deliver an Opinion of Counsel to the Trustee to the effect that the
supplemental indenture has been duly authorized, executed and delivered by the
Subsidiary and constitutes a valid and binding obligation of the Subsidiary,
enforceable against the Subsidiary in accordance with its terms (subject to
customary exceptions).
Section 4.09. Financial Reports.
(a) The Company shall deliver to the Trustee within 15 days after it
files them with the Commission copies of the annual reports and of the
information, documents, and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) that the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act; provided, however the Company shall not be required to
deliver to the Trustee any materials for which the Company has sought and
received confidential treatment by the Commission. The Company also shall comply
with the other provisions of Trust Indenture Act Section 314(a).
(b) The Company shall comply with all of the applicable provisions of
Trust Indenture Act Section 314(a).
Section 4.10. Reports to Trustee.
(a) The Company will deliver to the Trustee within 120 days after the
end of each fiscal year a certificate from the principal executive, financial or
accounting officer of the Company stating that the officer has conducted or
supervised a review of the activities of the Company and its Subsidiaries and
their performance under the Indenture and that, based upon such review, the
Company and each Guarantor has fulfilled its obligations hereunder or, if there
has been a Default, specifying the Default and its nature and status.
(b) The Company will deliver to the Trustee, as soon as possible and in
any event within 30 days after the Company becomes aware or should reasonably
become aware of the occurrence of a Default, an Officers' Certificate setting
forth the details of the Default, and the action which the Company proposes to
take with respect thereto.
(c) The Company will deliver to the Trustee within 120 days after the
end of each fiscal year of the Company a written statement by the Company's
independent public accountants stating (i) that their audit examination has
included a review of the terms of this Indenture as they relate to accounting
matters, and (ii) whether, in connection with their audit examination, any
Default has come to their attention and, if a Default has come to their
attention, specifying the nature and period of the existence thereof.
(d) The Company will notify the Trustee when any Notes of any series
are listed on any national securities exchange and of any delisting.
22
ARTICLE V.
MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS
Section 5.01. Merger, Consolidation and Disposition of Assets by the
Company. In addition to provisions applicable to a particular series of Notes:
(a) The Company shall not merge with, consolidate with or into, or
sell, convey, transfer, lease or otherwise dispose of all or substantially all
of its property and assets to, any Person or permit any Person to merge with or
into the Company unless:
(i) either
(1) the Company shall be the continuing Person or
(2) the resulting, surviving or transferee Person is
organized and validly existing under the laws of the United
States of America or any jurisdiction thereof and expressly
assumes by supplemental indenture all of the obligations of
the Company under the Indenture and the Notes of each series;
and the Company shall have delivered to the Trustee an Opinion
of Counsel stating that such consolidation, merger or transfer
and such supplemental indenture complies with this provision
and that all conditions precedent provided for in the
Indenture relating to such transaction have been complied with
and that such supplemental indenture constitutes the legal
valid and binding obligation of the Company or such successor
enforceable against such entity in accordance with its terms,
subject to customary exceptions; and
(ii) immediately after giving effect to the transaction, no
Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers'
Certificate stating that the consolidation, merger or transfer and the
supplemental indenture (if any) comply with the Indenture;
(b) Upon the consummation of any transaction effected in accordance
with these provisions, if the Company is not the continuing Person, the
resulting, surviving or transferee Person will succeed to, and be substituted
for, and may exercise every right and power of, the Company under the Indenture
with the same effect as if such successor Person had been named as the Company
in the Indenture. Upon such substitution, unless the successor is one or more of
the Company's Subsidiaries, the Company will be released from its obligations
under the Indenture and the Notes of each series.
Section 5.02. Consolidation or Sale of Assets by a Guarantor.
(a) The Company shall not sell or dispose of, or cause any Subsidiary
to sell or dispose of to any Person other than the Company or any Guarantor, any
Guarantor whose assets exceed 10% of the Company's consolidated total assets
(determined as of the date of the Company's most recent interim or fiscal
year-end balance sheet filed with the Commission prior
23
to the date of the sale or disposition) (each, a "10% SUBSIDIARY GUARANTOR")
unless at least 80% of the net after-tax proceeds of such sale or disposition
will consist of any combination of:
(i) cash (including assumption by the acquiror of any
indebtedness of the Company or its Subsidiaries) or readily marketable
securities;
(ii) property or assets (other than current assets) of a
nature or type similar or related to the nature or type of the property
or assets of the Company and its Subsidiaries existing on the date of
such sale or disposition; or
(iii) interests in companies or businesses having property or
assets or engaged in businesses similar or related to the nature or
type of the property or assets or businesses of the Company and its
Subsidiaries on the date of such sale or disposition.
(b) The limitation in Section 5.02(a) will not apply to the sale or
disposition of the property or assets of a Guarantor normally disposed of by
such Guarantor in the ordinary course of its business consistent with past
practice.
(c) In the event that the net after-tax proceeds from the sale or
disposition of a 10% Subsidiary Guarantor consist of cash or readily marketable
securities, the Company will apply, within 18 months of such sale or
disposition, an amount equal to 100% of the fair market value, as determined in
good faith by the Board of Directors, of such net after-tax proceeds to:
(i) repay unsubordinated Debt of the Company or any Guarantor,
in each case owing to a Person other than an Affiliate of the Company;
(ii) invest in property or assets (other than current assets)
of a nature or type similar or related to the nature or type of the
property or assets of the Company and its Subsidiaries existing on the
date of such investment, provided that if such property or assets are,
following such investment, owned directly by a Subsidiary that becomes
a guarantor under any of the Company's other Debt obligations, such
Subsidiary will become a Guarantor; or
(iii) invest in a Person or business having property or assets
or engaged in a business similar or related to the nature or type of
the property or assets or businesses of the Company and its
Subsidiaries on the date of such investment, provided that if such
Person or business, following such investment, becomes a guarantor
under any of the Company's other Debt obligations, such Person or the
Person owning such business will become a Guarantor.
ARTICLE VI.
DEFAULT AND REMEDIES
Section 6.01. Events of Default. An "EVENT OF DEFAULT" occurs with
respect to Notes of any particular series, unless it is specifically deleted or
modified in the Board Resolutions and/or supplemental indenture (if any) in
respect of such series, and in addition to any other events
24
which may be specified as Events of Default in the Board Resolutions and/or
supplemental indenture (if any) in respect of such series, if:
(1) the Company defaults in the payment of the principal (or
premium, if any, on) any Note of such series when the same becomes due
and payable at maturity, upon acceleration or redemption, or otherwise;
(2) the Company defaults in the payment of interest on any
Note of such series when the same becomes due and payable, and the
default continues for a period of 30 days;
(3) the Company fails to comply with Sections 4.08(b), 5.01 or
5.02;
(4) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company contained in the Notes of
such series or in the Indenture and the default or breach continues for
a period of 60 consecutive days after written notice to the Company by
the Trustee or to the Company and the Trustee by the Holders of 25% or
more in aggregate principal amount of the Notes;
(5) there occurs with respect to any indebtedness for money
borrowed by the Company or any of its Subsidiaries having an aggregate
principal amount outstanding of at least $10,000,000 a failure to pay
when due, subject to any applicable grace period, the principal at (x)
Stated Maturity or (y) acceleration prior thereto (and such payment
default shall not have been waived or such acceleration shall not have
been rescinded or such indebtedness shall not have been discharged
within 30 days following such payment default or acceleration);
(6) an involuntary case or other proceeding is commenced
against the Company or any Guarantor with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter
in effect seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding remains
undismissed and unstayed for a period of 60 days; or an order for
relief is entered against the Company or any Guarantor under the
federal bankruptcy laws as now or hereafter in effect;
(7) the Company or any Guarantor (i) commences a voluntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (ii) consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or any Guarantor or for all or substantially all of the
property and assets of the Company or any Guarantor or (iii) effects
any general assignment for the benefit of creditors (an event of
default specified in clause (6) or (7) a "BANKRUPTCY DEFAULT"); or
(8) any Note Guaranty with respect to the Notes of such series
ceases to be in full force and effect, other than in accordance with
the terms of the Indenture, or a Guarantor denies or disaffirms its
obligations under its such guarantee.
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Section 6.02. Acceleration.
(a) If an Event of Default with respect to the Notes of any series,
other than a bankruptcy default with respect to the Company, occurs and is
continuing under the Indenture, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes of such series then outstanding, by
written notice to the Company (and to the Trustee if the notice is given by the
Holders), may, and the Trustee at the request of such Holders shall, declare the
principal of, premium, if any and accrued interest on the Notes to be
immediately due and payable. Upon a declaration of acceleration, such principal
and interest will become immediately due and payable. If a bankruptcy default
occurs with respect to the Company, the principal of, premium, if any and
accrued interest on all Notes of each series then outstanding will become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
(b) The Holders of a majority in aggregate principal amount of the
outstanding Notes of any series by written notice to the Company and to the
Trustee may waive all past defaults and rescind and annul a declaration of
acceleration and its consequences if
(1) all existing Events of Default, other than the nonpayment
of the principal of, premium, if any, premium, if any, and interest on
the Notes of such series that have become due solely by the declaration
of acceleration, have been cured or waived, and
(2) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction.
Section 6.03. Other Remedies. If an Event of Default occurs and is
continuing with respect to the Notes of any series, the Trustee may pursue, in
its own name or as trustee of an express trust, any available remedy by
proceeding at law or in equity to collect the payment of principal of, premium,
if any and interest on the Notes of such series or to enforce the performance of
any provision of the Notes of such series or the Indenture. The Trustee may
maintain a proceeding even if it does not possess any of the Notes of such
series or does not produce any of them in the proceeding.
Section 6.04. Waiver of Past Defaults. Except as otherwise provided in
Sections 6.02, 6.07 and 9.02, the Holders of a majority in aggregate principal
amount of the outstanding Notes may, by notice to the Trustee, waive an existing
Default and its consequences. Upon such waiver, the Default will cease to exist,
and any Event of Default arising therefrom will be deemed to have been cured,
but no such waiver will extend to any subsequent or other Default or impair any
right consequent thereon.
Section 6.05. Control by Majority. The Holders of a majority in
aggregate principal amount of the outstanding Notes of a particular series (or
if more than one series is affected, of all such series voting as a single
class) 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 the Trustee. However, the Trustee may refuse to follow any such direction
that conflicts with law or the Indenture, that may involve the Trustee in
personal liability, or that the Trustee determines in good faith may be unduly
prejudicial to the rights of Holders of Notes of such
26
series not joining in the giving of such direction, and may take any other
action it deems proper that is not inconsistent with such direction.
Section 6.06. Limitation on Suits. A Holder may not pursue any
proceeding, judicial or otherwise, or the appointment of a receiver or trustee,
or any other remedy under the Indenture or the Notes of the applicable series,
unless:
(1) the Holder has previously given to the Trustee written
notice of a continuing Event of Default;
(2) Holders of at least 25% in aggregate principal amount of
then outstanding Notes of the series in respect of which the Event of
Default has occurred have made written request to the Trustee to pursue
a remedy in respect of the Event of Default in its own name as Trustee
under the Indenture;
(3) such Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities
or expenses to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to pursue any such remedy;
and
(5) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes of such series have
not given the Trustee a direction that is inconsistent with such
written request.
No Holder of any series of Notes may use this Indenture to prejudice
the rights of another Holder of Notes of that series or to obtain a preference
or priority over another Holder of Notes of that series.
Section 6.07. Rights of Holders to Receive Payment. Notwithstanding
anything to the contrary, the right of any Holder to receive payment of
principal of and premium, if any, and interest on its Note on or after the
Stated Maturities thereof, or to bring suit for the enforcement of any such
payment on or after such respective dates, may not be impaired or affected
without the consent of that 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 with respect to the Notes of any series, the Trustee
may recover judgment in its own name and as trustee of an express trust for the
whole amount of principal (or such portion of the principal as may be specified
as due upon acceleration at that time in the terms of that series of Notes),
premium, if any, and interest, remaining unpaid on the Notes of that series then
outstanding, together with interest on overdue principal and, to the extent
lawful, overdue installments of interest, in each case at the rate specified in
the Notes, and such further amount as is sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee hereunder.
27
Section 6.09. Trustee May File Proofs of Claim. The Trustee may file
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee hereunder) and the
Holders allowed in any judicial proceedings relating to the Company or any
Guarantor or their respective creditors or property, and is entitled and
empowered to collect, receive and distribute any money, securities or other
property payable or deliverable upon any such claims. Any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, if the Trustee consents 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, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee hereunder.
Nothing in the Indenture will be deemed to empower 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 with
respect to Notes of any series pursuant to this Article, it shall pay out the
money in the following order:
First: to the Trustee for all amounts due hereunder;
Second: in accordance with the subordination provisions, if any, of the
Notes of such series;
Third: to Holders for amounts then due and unpaid on the Notes of such
series for principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
of such series for principal, premium, if any, and interest; and
Fourth: to the Company, the Guarantors or such other Person as a court
of competent jurisdiction may direct.
The Trustee, upon written notice to the Company, may fix a record date
and payment date for any payment to Holders pursuant to this Section.
Section 6.11. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted a proceeding to enforce any right or remedy under the
Indenture and the proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to the Holder, then, subject
to any determination in the proceeding, the Company, any Guarantors, the Trustee
and the Holders will be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Company, any
Guarantors, the Trustee and the Holders will continue as though no such
proceeding had been instituted.
Section 6.12. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under the Indenture or in any suit against the Trustee for
any action taken or omitted to
28
be taken by it as Trustee, a court may require any party litigant in such suit
(other than the Trustee) to file an undertaking to pay the costs of the suit,
and the court may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant (other than the Trustee) in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by a Holder to enforce payment
of principal, premium, if any, and interest on any Note of any series on the
respective due dates, or a suit by Holders of more than 10% in principal amount
of the outstanding Notes of any series.
Section 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement of lost, destroyed or wrongfully taken
Notes of any series in Section 2.04, no right or remedy conferred or reserved to
the Trustee or to the Holders under this Indenture is intended to be exclusive
of any other right or remedy, and all such rights and remedies are, to the
extent permitted by law, cumulative and in addition to every other right and
remedy hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or exercise of any right or remedy hereunder, or otherwise, will
not prevent the concurrent assertion or exercise of any other right or remedy.
Section 6.14. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default will impair the exercise of any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 6.15. Waiver of Stay, Extension or Usury Laws. The Company and
each Guarantor covenants, to the extent that it may lawfully do so, that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive the Company or the Guarantor from paying all
or any portion of the principal of, premium, if any, or interest on the Notes of
any series as contemplated herein, wherever enacted, now or at any time
hereafter in force, or that may affect the covenants or the performance of the
Indenture. The Company and each Guarantor hereby expressly waives, to the extent
that it may lawfully do so, 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 if no such law had been enacted.
ARTICLE VII.
THE TRUSTEE
Section 7.01. General.
(a) The duties and responsibilities of the Trustee are as provided by
the Trust Indenture Act and as set forth herein. Whether or not expressly so
provided, every provision of the Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee is subject to this
Article.
29
(b) Except during the continuance of an Event of Default with respect
to the Notes of any series, the Trustee need perform only those duties that are
specifically set forth in the Indenture and no others, and no implied covenants
or obligations will be read into the Indenture that are adverse to the Trustee.
In case an Event of Default has occurred and is continuing with respect to the
Notes of any series, the Trustee shall exercise those rights and powers vested
in it by the Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs. (c) No provision of the Indenture shall be construed
to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct.
Section 7.02. Certain Rights of Trustee. Subject to Trust Indenture Act
Section 315(a) through (d):
(1) In the absence of bad faith on its part, the Trustee may
rely, and will be protected in acting or refraining from acting, upon
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in
the document, but, in the case of any document which is specifically
required to be furnished to the Trustee pursuant to any provision
hereof, the Trustee shall examine the document to determine whether it
conforms to the requirements of the Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein). The Trustee, in its discretion, may make further
inquiry or investigation into such facts or matters as it sees fit.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel conforming to
Section [11.05] and the Trustee will not be liable for any action it
takes or omits to take in good faith in reliance on the certificate or
opinion.
(3) The Trustee may act through its attorneys and agents and
will not be responsible for the misconduct or negligence of any agent
appointed with due care.
(4) The Trustee will be under no obligation to exercise any of
the rights or powers vested in it by the Indenture at the request or
direction of any of the Holders of any series of Notes, unless such
Holders have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction.
(5) The Trustee will not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within
its rights or powers or for any action it takes or omits to take in
accordance with the direction of the Holders of any series of Notes in
accordance with Section 6.05 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under the
Indenture.
30
(6) The Trustee may consult with counsel, and the written
advice of such counsel or any Opinion of Counsel will be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
(7) No provision of the Indenture will require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of its duties hereunder, or in the exercise of its
rights or powers, unless it receives indemnity satisfactory to it
against any loss, liability or expense.
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 or its Affiliates with the same rights it
would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b)
and 311. For purposes of Trust Indenture Act Sections 311(b)(4) and (6):
(a) "CASH TRANSACTION" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "SELF-LIQUIDATING PAPER" means any draft, ▇▇▇▇ of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred for the
purpose of financing the purchase, processing, manufacturing, shipment, storage
or sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the creditor
relationship arising from the making, drawing, negotiating or incurring of the
draft, ▇▇▇▇ of exchange, acceptance or obligation.
Section 7.04. Trustee's Disclaimer. The Trustee (i) makes no
representation as to the validity or adequacy of the Indenture or the Notes of
any series, (ii) is not accountable for the Company's use or application of the
proceeds from the Notes of any series and (iii) is not responsible for any
statement in the Notes of any series other than its certificate of
authentication.
Section 7.05. Notice of Default. If any Default or Event of Default
occurs and is continuing with respect to the Notes of any series, and if it is
known to the Trustee, the Trustee will send notice of the uncured Default to
each Holder of the Notes of such series within 90 days after it occurs, unless
the Default has been cured; provided that, except in the case of a default in
the payment of the principal of, premium, if any or interest on any such Note,
the Trustee may withhold the notice if and so long as the board of directors,
the executive committee or a trust committee of directors of the Trustee in good
faith determines that withholding the notice is in the interest of the Holders.
Notice to Holders under this Section will be given in the manner and to the
extent provided in Trust Indenture Act Section 313(c).
Section 7.06. Reports by Trustee to Holders. The Trustee shall transmit
to each Holder such reports concerning, among other things, the Trustee and its
action under this Indenture as
31
may be required pursuant to the Trust Indenture Act at the time and in
compliance with Section 313(a) of the Trust Indenture Act. The Trustee also
shall comply with Sections 313(b)(2) and 313(c) of the Trust Indenture Act. A
copy of each such report at the time of its mailing to Noteholders shall be
filed with the Commission and each stock exchange, if any, on which the Note of
any series are listed. The Company shall notify the Trustee if the Note of any
series become listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
(a) The Company will pay the Trustee compensation as agreed upon in
writing for its services. The compensation of the Trustee is not limited by any
law on compensation of a Trustee of an express trust. The Company will reimburse
the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee while acting as
Trustee under this Indenture, including the reasonable compensation and expenses
of the Trustee's agents and counsel.
(b) The Company will indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence or
bad faith on its part arising out of or in connection with the acceptance or
administration of the Indenture and its duties under the Indenture and the Notes
of each series, including the costs and expenses of defending itself against any
claim or liability and of complying with any process served upon it or any of
its officers in connection with the exercise or performance of any of its powers
or duties under the Indenture and any such Notes.
(c) To secure the Company's payment obligations in this Section, the
Trustee will have a lien prior to the Notes of each series on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay principal of, premium, if any, and
interest on particular Notes of any series.
Section 7.08. Replacement of Trustee.
(a)
(1) The Trustee may resign at any time by written notice to
the Company.
(2) The Holders of a majority in aggregate principal amount of
the outstanding Notes all series (voting as a single class) may remove
the Trustee by written notice to the Company and the Trustee.
(3) If the Trustee is no longer eligible under Section 7.10 or
in the circumstances described in Trust Indenture Act Section 310(b),
any Holder that satisfies the requirements of Trust Indenture Act
Section 310(b) may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(4) The Company may remove the Trustee if: (i) the Trustee is
no longer eligible under Section 7.10; (ii) the Trustee is adjudged a
bankrupt or an insolvent; (iii) a
32
receiver or other public officer takes charge of the Trustee or its
property; or (iv) the Trustee becomes incapable of acting.
A resignation or removal of the Trustee and appointment of a successor Trustee
will become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
(b) If the Trustee has been removed by the Holders, Holders of a
majority in principal amount of the outstanding Notes all series (voting as a
single class) may appoint a successor Trustee with the consent of the Company.
Otherwise, if the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, the Company will promptly appoint a successor
Trustee. If the successor Trustee does not deliver its written acceptance within
30 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of a majority in aggregate principal amount of the
outstanding Notes all series (voting as a single class) may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(c) Upon delivery by the successor Trustee of a written acceptance of
its appointment to the retiring Trustee and to the Company, (i) the retiring
Trustee will transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.07, (ii) the resignation
or removal of the retiring Trustee will become effective, and (iii) the
successor Trustee will have all the rights, powers and duties of the Trustee
under the Indenture. Upon request of any successor Trustee, the Company will
execute any and all instruments for fully and vesting in and confirming to the
successor Trustee all such rights, powers and trusts. The successor Trustee will
mail notice of any resignation and any removal of the Trustee and its
appointment to all Holders, and include in the notice its name and the address
of its Corporate Trust Office.
(d) Notwithstanding replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 will continue for the
benefit of the retiring Trustee.
(e) The Trustee agrees to give the notices provided for in, and
otherwise comply with, Trust Indenture Act Section 310(b).
Section 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act will, if such resulting, surviving
or transferee corporation or national banking association is otherwise eligible
under the Indenture, be the successor Trustee with the same effect as if the
successor Trustee had been named as the Trustee in the Indenture.
Section 7.10. Eligibility. The Indenture must always have a Trustee
that satisfies the requirements of Trust Indenture Act Section 310(a) and has a
combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition.
Section 7.11. Money Held in Trust.
33
The Trustee will not be liable for interest on any money received by it
except as it may agree with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law and
except for money held in trust under Article 8.
ARTICLE VIII.
DEFEASANCE AND DISCHARGE
Section 8.01. Discharge of Company's Obligations.
(a) Subject to paragraph (b), the Company's obligations under any
series of Notes and the Indenture, and each Guarantor's obligations under its
Note Guaranty with respect to such series, will terminate if:
(1) all Notes of such series previously authenticated and
delivered (other than (i) destroyed, lost or stolen Notes of such
series that have been replaced or (ii) Notes of such series that are
paid pursuant to Section 4.01 or (iii) Notes of such series for whose
payment money or U.S. Government Obligations have been held in trust
and then repaid to the Company pursuant to Section 8.05) have been
delivered to the Trustee for cancellation and the Company has paid all
sums payable by it hereunder; or
(2)
(A) the Notes of such series mature within one year,
or all of them are to be called for redemption within one year
under arrangements satisfactory to the Trustee for giving the
notice of redemption,
(B) the Company irrevocably deposits in trust with
the Trustee, as trust funds solely for the benefit of the
Holders of such Notes, money or U.S. Government Obligations or
a combination thereof sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certificate delivered to the Trustee,
without consideration of any reinvestment, to pay principal
of, premium, if any, and each installment of interest on such
Notes to maturity or redemption, as the case may be, and to
pay all other sums payable by it hereunder,
(C) no Default or event that with the passage of time
or the giving of notice, or both, will constitute an Event of
Default has occurred and is continuing on the date of the
deposit,
(D) the deposit will not result in a breach or
violation of, or constitute a default under, the Indenture or
any other agreement or instrument to which the Company is a
party or by which it is bound,
(E) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to
the satisfaction and discharge of the Indenture have been
complied with,
34
(F) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or there
has been a change in law, which in the Opinion of Counsel
provides that holders of such Notes will not recognize gain or
loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to
Federal income tax on the same amount, in the same manner and
at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred, and
(G) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that such deposit shall not
cause the Trustee or the trust so created to be subject to the
Investment Company Act of 1940.
(b) After satisfying the conditions in clause (1), only the Company's
obligations under Section 7.07 will survive. After satisfying the conditions in
clause (2), only the Company's obligations in Article 2 and Sections 4.01, 4.02,
7.07, 7.08, 8.05 and 8.06 will survive. In either case, the Trustee upon request
will acknowledge in writing the discharge of the Company's obligations under the
Notes of such series and the Indenture other than the surviving obligations.
Section 8.02. Legal Defeasance. Unless this Section 8.02 is otherwise
specified, pursuant to Section 2.01(r), to be inapplicable to Notes of any
Series, after the 123rd day following the deposit referred to in clause (1), the
Company will be deemed to have paid and will be discharged from its obligations
in respect of the Notes of such series and the Indenture (as it relates to the
Notes of such series), other than its obligations in Article 2 and Sections
4.01, 4.02, 7.07, 7.08, 8.05 and 8.06, and each Guarantor's obligations under
its Note Guaranty with respect to the Notes of such series will terminate,
provided the following conditions have been satisfied:
(1) The Company has irrevocably deposited in trust with the
Trustee, as trust funds solely for the benefit of the Holders of Notes
of such series, money or U.S. Government Obligations or a combination
thereof sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certificate
thereof delivered to the Trustee, without consideration of any
reinvestment, to pay principal of, premium, if any, and each
installment of interest on the Notes of such series to maturity or
redemption, as the case may be, provided that any redemption before
maturity has been irrevocably provided for under arrangements
satisfactory to the Trustee.
(2) No Default or event that with the passing of time or the
giving of notice, or both, will constitute an Event of Default, has
occurred and is continuing on the date of the deposit or occurs at any
time during the 123-day period following the deposit with respect to
the Notes of such series.
(3) The deposit will not result in a breach or violation of,
or constitute a default under, the Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound.
(4) The Company has delivered to the Trustee:
35
(A) either (x) a ruling received from or published by
the Internal Revenue Service to the effect that the Holders of
the Notes of such series will not recognize gain or loss for
federal income tax purposes as a result of the deposit,
defeasance and discharge and will be subject to federal income
tax on the same amount and in the same manner and at the same
times as would otherwise have been the case or (y) an Opinion
of Counsel, based on a change in law after the date of the
Indenture, to the same effect as the ruling described in
clause (x), and
(B) an Opinion of Counsel to the effect that (i) the
creation of the defeasance trust does not violate or cause the
Trustee or the trust so created to be subject to the
Investment Company Act of 1940, (ii) the Holders of the Notes
of such series have a valid first priority security interest
in the trust funds (subject to customary exceptions), and
(iii) after the passage of 123 days following the deposit, the
trust funds will not be subject to the effect of ▇▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or Section 15 of the New
York Debtor and Creditor Law.
(5) If the Notes of such series are listed on a national
securities exchange, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the deposit and defeasance will
not cause such Notes to be delisted.
(6) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
have been complied with.
Prior to the end of the 123-day period, none of the Company's
obligations under the Indenture will be discharged. Thereafter, the Trustee upon
request will acknowledge in writing the discharge of the Company's obligations
under the Notes of such series and the Indenture (as it relates to the Notes of
such series) except for the surviving obligations specified above.
Section 8.03. Covenant Defeasance. Unless this Section 8.03 is
otherwise specified, pursuant to Section 2.01(r), to be inapplicable to the
Notes of any series, after the 123rd day following the deposit referred to in
clause (1), the Company's obligations set forth in Sections 4.05 through 4.09,
4.11, Article 5 and each Guarantor's obligations under its Note Guaranty with
respect to the Notes of such series, will terminate, and clauses (3), (4), (5),
(6) and (7) of Section 6.01 will no longer constitute Events of Default,
provided the following conditions have been satisfied:
(1) The Company has complied with clauses (1), (2), (3), 4(A),
(5) and (6) of Section 8.02; and
(2) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize gain or loss
for federal income tax purposes as a result of the deposit and
defeasance and will be subject to federal income tax on the same amount
and in the same manner and at the same times as would otherwise have
been the case.
36
Except as specifically stated above, none of the Company's obligations
under the Indenture will be discharged.
Section 8.04. Application of Trust Money. Subject to Section 8.05, the
Trustee will hold in trust the money or U.S. Government Obligations deposited
with it pursuant to Section 8.01, 8.02 or 8.03, and apply the deposited money
and the proceeds from deposited U.S. Government Obligations to the payment of
principal of, premium, if any, and interest on the series of Notes for which
such deposit was made in accordance with the Notes such series and the
Indenture. Such money and U.S. Government Obligations need not be segregated
from other funds except to the extent required by law.
Section 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
8.02 or 8.03, the Trustee will promptly pay to the Company upon request any
excess money or U.S. Government Obligations held by the Trustee at any time and
thereupon be relieved from all liability with respect to such money. The Trustee
will pay to the Company upon request any money or U.S. Government Obligations
held for payment with respect to the Notes of any series that remains unclaimed
for two years, provided that before making such payment the Trustee may at the
expense of the Company publish once in a newspaper of general circulation in New
York City, or send to each Holder entitled to such money, notice that the money
remains unclaimed and that after a date specified in the notice (at least 30
days after the date of the publication or notice) any remaining unclaimed
balance of money will be repaid to the Company. After payment to the Company,
Holders entitled to such money must look solely to the Company for payment,
unless applicable law designates another Person, and all liability of the
Trustee with respect to such money will cease.
Section 8.06. Reinstatement. If and for so long as the Trustee is
unable to apply any money or U.S. Government Obligations held in trust pursuant
to Section 8.01, 8.02 or 8.03 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 the Indenture (with respect to the applicable series of Notes) and the
Notes of the applicable series will be reinstated as if no such deposit in trust
had been made. If the Company makes any payment of principal of, premium, if
any, or interest on any Notes because of the reinstatement of its obligations,
it will be subrogated to the rights of the Holders of such Notes to receive such
payment from the money or U.S. Government Obligations held in trust.
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Amendments Without Consent of Holders.
(a) The Company and the Guarantors, when authorized by a Board
Resolution, and the Trustee may supplement, amend or modify the Indenture or the
Notes of any series without notice to or the consent of any Noteholder:
(1) to cure any ambiguity, defect or inconsistency;
37
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of the Indenture under the Trust
Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee;
(5) to provide for uncertificated Notes in addition to or in
place of certificated Notes, provided that the uncertified Notes are
issued in registered form for purposes of Section 163(f) of the
Internal Revenue Code, or in a manner such that the uncertificated
Notes are described in Section 163(f)(2)(B) of the Internal Revenue
Code;
(6) to provide for any guarantee of the Notes, to secure the
Notes or to confirm and evidence the release, termination or discharge
of any guarantee of or Lien securing the Notes when such release,
termination or discharge is permitted by the Indenture;
(7) to add covenants to Article 4 for the benefit of the
Holders of any one or more series of Notes or surrender any right or
power conferred upon the Company or the Guarantors with respect to such
Notes;
(8) to make any other change that does not adversely affect
the rights of any Holder; or
(9) to establish additional series of Notes as permitted by
Section 2.01 hereof.
Section 9.02. Amendments With Consent of Holders.
(a) Except as otherwise provided in Sections 6.02, 6.04 and 6.07 or
paragraph (b), the Company, the Guarantors, when authorized by a Board
Resolution, and the Trustee may amend, supplement or modify the Indenture and
the Notes of any series with the written consent of the Holders of a majority in
aggregate principal amount of the outstanding Notes of all series affected
thereby (voting as a single class), and such Holders by written notice to the
Trustee may waive future compliance by the Company with any provision of the
Indenture or the Notes such series having applicability solely to such series.
(b) Notwithstanding the provisions of paragraph (a), without the
consent of each Holder affected, an amendment, supplement or modification may
not
(1) change the stated maturity of the principal of, premium,
if any, or any installment of interest on, any Note,
(2) reduce the principal amount of, or the premium if any, or
interest on, any Note,
38
(3) reduce the amount payable upon the redemption of any Note
or, in respect of an optional redemption, the times at which any Note
may be redeemed or, once notice of redemption has been given, the time
at which it must thereupon be redeemed,
(4) change the place or currency of payment of principal of,
or premium, if any, or interest on, any Note,
(5) impair the right of any Holder to institute suit for the
enforcement of any payment on or with respect to any Note,
(6) make any change in the percentage of the aggregate
principal amount of the Notes required for amendments or modifications
of the Indenture or waivers of past defaults of covenants,
(7) amend the provisions of the Indenture or any Note Guaranty
relating to the Guarantors in a manner adverse to the Holders of the
Notes, other than to effect the release of a Guarantor as set forth in
Section 10.03 or
(8) make any change in any Note Guaranty that would adversely
affect the Noteholders.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Notes, or which modifies the
rights of the Holders of Notes of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under the Indenture of
the Holders of Notes of any other series.
(c) It is not necessary for Noteholders to approve the particular form
of any proposed amendment, modification or waiver, but is sufficient if their
consent approves the substance thereof.
(d) An amendment, supplement or waiver under this Section will become
effective on receipt by the Trustee of written consents from the Holders of the
requisite percentage in principal amount of the applicable series of outstanding
Notes. After an amendment, modification or waiver under this Section becomes
effective, the Company will send to the Holders affected thereby a notice
briefly describing the amendment, modification or waiver. The Company will send
supplemental indentures to Holders upon request. Any failure of the Company to
send such notice, or any defect therein, will not, however, in any way impair or
affect the validity of any such amendment, modification, supplemental indenture
or waiver.
Section 9.03. Effect of Consent.
(a) After an amendment, supplement, modification or waiver becomes
effective with respect to the Notes of any series affected thereby, it will bind
every Holder of such Notes, unless makes a change described in any of clauses
(1) through (8) of Section 9.02 (b). In that case the amendment, supplement or
waiver shall bind each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note of the same series that
evidences the same debt as the consenting Holder's Note.
39
(b) If an amendment, supplement, modification or waiver changes the
terms of a Note, the Trustee may require the Holder 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 and the Trustee may place an
appropriate notation on any Note of such series thereafter authenticated.
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
of the same series and tenor that reflects the changed terms. However, the
effectiveness of the amendment, modification or waiver is not affected by any
failure to annotate or exchange Notes in this fashion.
Section 9.04. Trustee's Rights and Obligations. The Trustee is entitled
to receive, and will be fully protected in relying upon, an Opinion of Counsel
stating that the execution of any amendment, supplement, modification or waiver
authorized pursuant to this Article is authorized or permitted by the Indenture.
If the Trustee has received such an Opinion of Counsel, it shall sign the
amendment, supplement, modification or waiver so long as the same does not
adversely affect the rights of the Trustee. The Trustee may, but is not
obligated to, execute any amendment, supplement, modification or waiver that
affects the Trustee's own rights, duties or immunities under the Indenture.
Section 9.05. Conformity with Trust Indenture Act. Every amendment,
modification or supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
ARTICLE X.
GUARANTEES
Section 10.01. Note Guaranties. Subject to the provisions of Section
4.08 and this Article, for value received, each Guarantor hereby irrevocably and
unconditionally guarantees, jointly and severally, the full and punctual payment
(whether at Stated Maturity, upon redemption, or acceleration, or otherwise) of
the principal of, premium, if any, and interest on, and all other amounts
payable under, the Notes of each series, and the full and punctual payment of
all other amounts payable by the Company under the Indenture with respect to
such Notes. Upon failure by the Company to pay punctually any such amount, each
Guarantor shall forthwith on demand pay the amount not so paid at the place and
in the manner specified in the Indenture.
Each Note Guaranty hereunder is intended to be a general, unsecured,
senior obligation of each Guarantor and will rank pari passu in right of payment
with all Debt and other indebtedness of such Guarantor that is not, by its
terms, expressly subordinated in right of payment to such Note Guaranty of such
Guarantor.
Section 10.02. Note Guaranty Unconditional. The obligations of each
Guarantor hereunder are unconditional and absolute and, without limiting the
generality of the foregoing, will not be released, discharged or otherwise
affected by
(1) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Company under the Indenture
or any Note, by operation of law or otherwise;
40
(2) any modification or amendment of or supplement to the
Indenture or any Note;
(3) any change in the corporate existence, structure or
ownership of the Company, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting the Company or its assets or any
resulting release or discharge of any obligation of the Company
contained in the Indenture or any Note;
(4) the existence of any claim, set-off or other rights which
the Guarantor may have at any time against the Company, the Trustee or
any other Person, whether in connection with the Indenture or any
unrelated transactions, provided that nothing herein prevents the
assertion of any such claim by separate suit or compulsory
counterclaim;
(5) any invalidity or unenforceability relating to or against
the Company for any reason of the Indenture or any Note, or any
provision of applicable law or regulation purporting to prohibit the
payment by the Company of the principal of, premium, if any or interest
on any Note or any other amount payable by the Company under the
Indenture; or
(6) any other act or omission to act or delay of any kind by
the Company, the Trustee or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of or defense to such
Guarantor's obligations hereunder.
Section 10.03. Discharge; Reinstatement. Each Guarantor's obligations
hereunder with respect to the Note Guaranty relating to the Notes of any series
will remain in full force and effect until the earlier of (a) the principal of,
premium, if any, and interest on the Notes of such series and all other amounts
payable by the Company under the Indenture in respect of such Notes have been
paid in full or (b) the Guarantor ceases to be a Guarantor of any of the
Company's Debt obligations. If at any time any payment of the principal of,
premium, if any, or interest on the Notes of any series or any other amount
payable by the Company under the Indenture in respect of such Notes is rescinded
or must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, each Guarantor's obligations
hereunder with respect to such payment will be reinstated as if such payment had
been due but not made at such time.
Section 10.04. Waiver by the Guarantors. Each Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against the Company or any other Person.
Section 10.05. Subrogation and Contribution. Upon making any payment
with respect to any obligation of the Company under this Article, the Guarantor
making such payment will be subrogated to the rights of the payee against the
Company with respect to such obligation, provided that the Guarantor may not
enforce either any right of subrogation, or any right to receive payment in the
nature of contribution, or otherwise, from any other Guarantor, with
41
respect to such payment so long as any amount payable by the Company hereunder
or under Notes of any series remains unpaid.
Section 10.06. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Company under the Indenture or the Notes of
any series is stayed upon the insolvency, bankruptcy or reorganization of the
Company, all such amounts otherwise subject to acceleration under the terms of
the Indenture are nonetheless payable by the Guarantors hereunder forthwith on
demand by the Trustee or the Holders of such Notes.
Section 10.07. Limitation on Amount of Note Guaranty. Notwithstanding
anything to the contrary in this Article, each Guarantor, and by its acceptance
of Notes of any series, each Holder of such Notes, hereby confirms that it is
the intention of all such parties that the Note Guaranty of such Guarantor with
respect to such Notes not constitute a fraudulent conveyance under applicable
fraudulent conveyance provisions of the United States Bankruptcy Code or any
comparable provision of state law. To effectuate that intention, the Trustee,
the Holders of such Notes and each such Guarantor hereby irrevocably agree that
the obligations of such Guarantor under such Note Guaranty are limited to the
maximum amount that would not render such Guarantor's obligations subject to
avoidance under applicable fraudulent conveyance provisions of the United States
Bankruptcy Code or any comparable provision of state law.
Section 10.08. Execution and Delivery of Note Guaranty. The execution
by each Guarantor of the Indenture (or a supplemental indenture pursuant to
which it shall guarantee under this Indenture any Notes) evidences the Note
Guaranty of such Guarantor, whether or not the person signing as an officer of
the Guarantor still holds that office at the time of authentication of any Note.
The delivery of any Note by the Trustee after authentication constitutes due
delivery of the Note Guaranty set forth in the Indenture on behalf of each
Guarantor.
Each Guarantor shall be deemed to have signed on each Note of any
series issued hereunder any notation of guarantee required by applicable law to
the same extent as if the signature of such Guarantor appeared on such Note. For
so long as the applicable Note Guaranty of such Guarantor remains in full force
and effect, each Guarantor hereby irrevocably appoints the Company as its
attorney-in-fact for the purpose of executing in the name and on behalf of such
Guarantor any endorsement of any such required notation of guarantee on any
Note.
Section 10.09. Release of Guaranty. The Note Guaranty of a Guarantor
with respect to the Notes any series will terminate upon (a) the principal of,
premium, if any, and interest on such Notes and all other amounts payable by the
Company under the Indenture with respect to such Notes having been paid in full
or (b) the Guarantor ceasing to be a Guarantor of any of the Company's Debt
obligations.
Upon delivery by the Company to the Trustee of an Officers' Certificate
and, if reasonably requested by the Trustee, an Opinion of Counsel, to the
foregoing effect, the Trustee will execute any documents reasonably required in
order to evidence the release of the Guarantor from its obligations under such
Note Guaranty.
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Section 10.10. Liability. A director, officer, employee or stockholder,
as such, of any Guarantor shall not have any liability for any obligations of
such Guarantor under this Indenture or for any claim based on, in respect of or
by reason of this Article 10.
ARTICLE XI.
MISCELLANEOUS
Section 11.01. Trust Indenture Act of 1939. The Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
Section 11.02. Noteholder Communications; Noteholder Actions.
(a) The rights of Holders to communicate with other Holders with
respect to the Indenture or the Notes are as provided by the Trust Indenture
Act, and the Company and the Trustee shall comply with the requirements of Trust
Indenture Act Sections 312(a) and 312(b). Neither the Company nor the Trustee
will be held accountable by reason of any disclosure of information as to names
and addresses of Holders made pursuant to the Trust Indenture Act.
(b)
(1) Any request, demand, authorization, direction, notice,
consent to amendment, modification or waiver or other action provided
by this Indenture to be given or taken by a Holder (an "ACT") may be
evidenced by an instrument signed by the Holder delivered to the
Trustee. The fact and date of the execution of the instrument, or the
authority of the person executing it, may be proved in any manner that
the Trustee deems sufficient.
(2) The Trustee may make reasonable rules for action by or at
a meeting of Holders of any one or more series of Notes, which will be
binding on all the Holders of such Notes.
(c) Any act by the Holder of any Note binds that Holder and every
subsequent Holder of a Note that evidences the same debt as the Note of the
acting Holder, even if no notation thereof appears on the Note. Subject to
paragraph (d), a Holder may revoke an act as to its Notes, but only if the
Trustee receives the notice of revocation before the date the amendment or
waiver or other consequence of the act becomes effective.
(d) The Company may, but is not obligated to, fix a record date (which
need not be within the time limits otherwise prescribed by Trust Indenture Act
Section 316(c)) for the purpose of determining the Holders entitled to act with
respect to any amendment or waiver or in any other regard, except that during
the continuance of an Event of Default, only the Trustee may set a record date
as to notices of default, any declaration or acceleration or any other remedies
or other consequences of the Event of Default. If a record date is fixed, those
Persons that were Holders at such record date and only those Persons will be
entitled to act, or to revoke any previous act, whether or not those Persons
continue to be Holders after the record date. No act will be valid or effective
for more than 90 days after the record date.
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Section 11.03. Notices.
(a) Any notice or communication to the Company will be deemed given if
in writing (i) when delivered in person or (ii) five days after mailing when
mailed by first class mail, or (iii) when sent by facsimile transmission, with
transmission confirmed. Any notice or communication to the Trustee will be
deemed given if in writing (i) when delivered in person, or (ii) when sent by
facsimile transmission, with transmission confirmed. Notices or communications
to a Guarantor will be deemed given if given to the Company. In each case the
notice or communication should be addressed as follows:
if to the Company:
Roadway Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
[_____________]
[_____________]
[_____________]
[_____________]
FAX: [________]
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(b) Except as otherwise expressly provided with respect to published
notices, any notice or communication to a Holder will be deemed given when
mailed to the Holder at its address as it appears on the Register by first class
mail or, as to any Global Note registered in the name of DTC or its nominee, as
agreed by the Company, the Trustee and DTC. Copies of any notice or
communication to a Holder, if given by the Company, will be mailed to the
Trustee at the same time. Defect in mailing a notice or communication to any
particular Holder will not affect its sufficiency with respect to other Holders.
(c) Where the Indenture provides for notice, the notice may be waived
in writing by the Person entitled to receive such notice, either before or after
the event, and the waiver will be the equivalent of the notice. Waivers of
notice by Holders must be filed with the Trustee, but such filing is not a
condition precedent to the validity of any action taken in reliance upon such
waivers.
Section 11.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under the Indenture, the Company will furnish to the Trustee:
44
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in the
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that all such conditions
precedent have been complied with.
Section 11.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in the Indenture must include:
(1) a statement that each Person signing the certificate or
opinion has read the covenant or condition and the related definitions;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in the certificate or opinion is based;
(3) a statement that, in the opinion of each such Person, that
Person has made such examination or investigation as is necessary to
enable the Person 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 an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials with respect to matters
of fact.
Section 11.06. Payment Date Other Than a Business Day. If any payment
with respect to a payment of any principal of, premium, if any, or interest on
any Note (including any payment to be made on any date fixed for redemption or
purchase of any Note) is due on a day which is not a Business Day, then the
payment need not be made on such date, but may be made on the next Business Day
with the same force and effect as if made on such date, and no interest will
accrue for the intervening period.
Section 11.07. Governing Law. The Indenture, including any Note
Guaranties, and the Notes shall be governed by, and construed in accordance
with, the laws of the State of New York.
Section 11.08. No Adverse Interpretation of Other Agreements. The
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company, and no such indenture
or loan or debt agreement may be used to interpret the Indenture.
Section 11.09. Successors. All agreements of the Company or any
Guarantor in the Indenture and the Notes will bind its successors. All
agreements of the Trustee in the Indenture will bind its successor.
45
Section 11.10. Duplicate Originals. The parties may sign any number of
copies of the Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section 11.11. Separability. In case any provision in the Indenture or
in the Notes is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
Section 11.12. Table of Contents and Headings. The Table of Contents,
Cross-Reference Table and headings of the Articles and Sections of the Indenture
have been inserted for convenience of reference only, are not to be considered a
part of the Indenture and in no way modify or restrict any of the terms and
provisions of the Indenture.
Section 11.13. No Liability of Directors, Officers, Employees,
Incorporators and Stockholders. No director, officer, employee, incorporator,
member or stockholder of the Company or any Subsidiary, will have any liability
for any obligations of the Company or any Guarantor under the Notes, any Note
Guaranty or the Indenture or for any claim based on, in respect of, or by reason
of, such obligations. Each Holder of Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and the Note Guaranties.
46
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused the Indenture to be
duly executed as of the date first written above.
ROADWAY CORPORATION
as Issuer
By:
-------------------------------------
Name:
Title:
[______________]
as Trustee
By:
-------------------------------------
Name:
Title:
[_________________]
as Guarantor
By:
-------------------------------------
Name:
Title:
47
SCHEDULE I
SCHEDULE OF GUARANTORS
----------------------
The following schedule lists each Guarantor under the Indenture:
EXHIBIT A
For Global Note only: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY", WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE CERTIFICATES)
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 IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND
ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.
A-1