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EXHIBIT 4.2
AIRCRAFT SERVICE INTERNATIONAL GROUP, INC.,
the GUARANTORS named herein,
and any future GUARANTORS that become parties hereto
and
STATE STREET BANK AND TRUST COMPANY
as Trustee
INDENTURE
Dated as of August 18, 1998
$80,000,000
11% Senior Notes due 2005
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1).............................................. 7.10
(a)(2).............................................. 7.10
(a)(3).............................................. N.A.
(a)(4).............................................. N.A.
(b)................................................. 7.08; 7.10; 11.02
(b)(1).............................................. 7.10
(b)(9).............................................. 7.10
(c)................................................. N.A.
311(a)................................................. 7.11
(b)................................................. 7.11
(c)................................................. N.A.
312(a)................................................. 2.06
(b)................................................. 11.03
(c)................................................. 11.03
313(a)................................................. 7.06
(b)(1).............................................. 7.06
(b)(2).............................................. 7.06
(c)................................................. 11.02
(d)................................................. 7.06
314(a)................................................. 4.02; 4.04; 11.02
(b)................................................. N.A.
(c)(1).............................................. 11.04; 11.05
(c)(2).............................................. 11.04; 11.05
(c)(3).............................................. N.A.
(d)................................................. N.A.
(e)................................................. 11.05
(f)................................................. N.A.
315(a)................................................. 7.01; 7.02
(b)................................................. 7.05; 11.02
(c)................................................. 7.01
(d)................................................. 6.05; 7.01; 7.02
(e)................................................. 6.11
316(a)(last sentence).................................. 2.10
(a)(1)(A)........................................... 6.05
(a)(1)(B)........................................... 6.04
(a)(2).............................................. 8.02
(b)................................................. 6.07
(c)................................................. 8.04
317(a)(1).............................................. 6.08
(a)(2).............................................. 6.09
(b)................................................. 7.12
318(a)................................................. 11.01
____________
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions................................................... 1
Section 1.02. Other Definitions............................................. 31
Section 1.03. Incorporation by Reference of Trust Indenture Act............. 31
Section 1.04. Rules of Construction......................................... 32
ARTICLE 2 THE NOTES
Section 2.01. Amount of Notes............................................... 33
Section 2.02. Form and Dating............................................... 33
Section 2.03. Execution and Authentication.................................. 34
Section 2.04. Registrar and Paying Agent.................................... 35
Section 2.05. Paying Agent to Hold Money in Trust........................... 36
Section 2.06. Noteholder Lists.............................................. 36
Section 2.07. Transfer and Exchange......................................... 36
Section 2.08. Replacement Notes............................................. 37
Section 2.09. Outstanding Notes............................................. 38
Section 2.10. Treasury Notes................................................ 38
Section 2.11. Temporary Notes............................................... 39
Section 2.12. Cancellation.................................................. 39
Section 2.13. Defaulted Interest............................................ 39
Section 2.14. CUSIP Number.................................................. 40
Section 2.15. Deposit of Moneys............................................. 40
Section 2.16. Book-Entry Provisions for Global Notes........................ 40
Section 2.17. Special Transfer Provisions................................... 43
Section 2.18. Computation of Interest....................................... 46
ARTICLE 3 REDEMPTION
Section 3.01. Notices to Trustee............................................ 46
Section 3.02. Selection by Trustee of Notes to Be Redeemed.................. 46
Section 3.03. Notice of Redemption.......................................... 47
Section 3.04. Effect of Notice of Redemption................................ 48
Section 3.05. Deposit of Redemption Price................................... 48
Section 3.06. Notes Redeemed in Part........................................ 49
ARTICLE 4 COVENANTS
Section 4.01. Payment of Notes.............................................. 49
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Section 4.02. SEC Reports................................................... 49
Section 4.03. Waiver of Stay, Extension or Usury Laws....................... 51
Section 4.04. Compliance Certificate........................................ 51
Section 4.05. Taxes........................................................ 52
Section 4.06. Limitation on Additional Indebtedness......................... 52
Section 4.07. Limitation on Preferred Stock of Restricted Group Members..... 53
Section 4.08. Limitation on Capital Stock of Restricted Group Members....... 54
Section 4.09. Limitation on Restricted Payments............................. 54
Section 4.10. Limitation on Certain Asset Sales............................. 58
Section 4.11. Limitation on Transactions with Affiliates.................... 60
Section 4.12. Limitations on Liens.......................................... 61
Section 4.13. Limitations on Investments.................................... 62
Section 4.14. Limitation on Creation of Certain Subsidiaries................ 62
Section 4.15. Limitation on Sale and Lease-Back Transactions................ 62
Section 4.16. Payments for Consent.......................................... 62
Section 4.17. Legal Existence.............................................. 63
Section 4.18. Change of Control............................................. 63
Section 4.19. Maintenance of Office or Agency............................... 65
Section 4.20. Maintenance of Properties; Insurance; Books and Records;
Compliance with Law........................................... 66
Section 4.21. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Group Members............................ 66
Section 4.22. Further Assurance to the Trustee.............................. 67
Section 4.23. Limitation on Conduct of Business............................. 67
ARTICLE 5 SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets........ 68
Section 5.02. Successor Person Substituted.................................. 69
ARTICLE 6 DEFAULTS AND REMEDIES
Section 6.01. Events of Default............................................. 69
Section 6.02. Acceleration.................................................. 71
Section 6.03. Other Remedies................................................ 72
Section 6.04. Waiver of Past Defaults and Events of Default................. 73
Section 6.05. Control by Majority........................................... 73
Section 6.06. Limitation on Suits........................................... 73
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Section 6.07. Rights of Holders to Receive Payment.......................... 74
Section 6.08. Collection Suit by Trustee.................................... 74
Section 6.09. Trustee May File Proofs of Claim.............................. 74
Section 6.10. Priorities.................................................... 75
Section 6.11. Undertaking for Costs......................................... 76
Section 6.12. Restoration of Rights and Remedies............................ 76
ARTICLE 7 TRUSTEE
Section 7.01. Duties of Trustee............................................. 76
Section 7.02. Rights of Trustee............................................. 78
Section 7.03. Individual Rights of Trustee.................................. 79
Section 7.04. Trustee's Disclaimer.......................................... 79
Section 7.05. Notice of Defaults............................................ 79
Section 7.06. Reports by Trustee to Holders................................. 79
Section 7.07. Compensation and Indemnity.................................... 80
Section 7.08. Replacement of Trustee........................................ 81
Section 7.09. Successor Trustee by Consolidation, Merger, Etc............... 82
Section 7.10. Eligibility; Disqualification................................. 83
Section 7.11. Preferential Collection of Claims Against Company............. 83
Section 7.12. Paying Agents................................................. 83
ARTICLE 8 AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.................................... 84
Section 8.02. With Consent of Holders....................................... 84
Section 8.03. Compliance with Trust Indenture Act........................... 86
Section 8.04. Revocation and Effect of Consents............................. 86
Section 8.05. Notation on or Exchange of Notes.............................. 87
Section 8.06. Trustee to Sign Amendments, etc............................... 87
ARTICLE 9 DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture........................................ 88
Section 9.02. Legal Defeasance.............................................. 88
Section 9.03. Covenant Defeasance........................................... 89
Section 9.04. Conditions to Defeasance or Covenant Defeasance............... 89
Section 9.05. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions......................... 92
Section 9.06. Reinstatement................................................. 92
Section 9.07. Moneys Held by Paying Agent................................... 93
Section 9.08. Moneys Held by Trustee........................................ 93
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ARTICLE 10 GUARANTEE OF NOTES
Section 10.01. Guarantee.................................................... 94
Section 10.02. Execution and Delivery of Guarantees......................... 95
Section 10.03. Limitation of Guarantee...................................... 95
Section 10.04. Release of Guarantor......................................... 96
ARTICLE 11 MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls................................. 96
Section 11.02. Notices...................................................... 96
Section 11.03. Communications by Holders with Other Holders................. 98
Section 11.04. Certificate and Opinion as to Conditions Precedent........... 98
Section 11.05. Statements Required in Certificate and Opinion............... 99
Section 11.06. Rules by Trustee and Agents.................................. 99
Section 11.07. Business Days; Legal Holidays................................ 99
Section 11.08. Governing Law................................................ 100
Section 11.09. No Adverse Interpretation of Other Agreements................ 100
Section 11.10. No Recourse Against Others................................... 100
Section 11.11. Successors................................................... 101
Section 11.12. Multiple Counterparts........................................ 101
Section 11.13. Table of Contents, Headings, etc............................. 101
Section 11.14. Separability................................................. 101
EXHIBITS
Exhibit A Form of Note..................................................... A-1
Exhibit B Form of Legend and Assignment for 144A Note...................... B-1
Exhibit C Form of Legend and Assignment for Regulation S Note.............. C-1
Exhibit D Form of Legend for Global Note................................... D-1
Exhibit E Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors........................ E-1
Exhibit F Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S............................... F-1
Exhibit G Form of Guarantee............................................... G-1
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INDENTURE, dated as of August 18, 1998, among AIRCRAFT SERVICE
INTERNATIONAL GROUP, INC., a Delaware corporation (the "Company"), AIRCRAFT
SERVICE INTERNATIONAL, INC., a Delaware corporation, FLORIDA AVIATION FUELING
COMPANY INC., a Florida corporation, DISPATCH SERVICES, INC., a Florida
corporation, and any future GUARANTORS that become parties hereto (the
"Guarantors") and STATE STREET BANK AND TRUST COMPANY, a Massachusetts chartered
trust company, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
11% Senior Notes due 2005 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person
(including an Unrestricted Subsidiary or Permitted Joint Venture) existing at
the time such Person becomes a Restricted Group Member or assumed in connection
with the acquisition of assets from such Person.
"Acquisition" means the transactions described in the
Acquisition Agreement.
"Acquisition Agreement" means the Share Purchase Agreement
between Viad Corp and Viad Service Companies Limited, as sellers, and Ranger, as
buyer, dated as of March 14, 1998, and the schedules thereto, as amended by
Amendment No. 1 thereto, dated as of April 2, 1998 between Viad Corp and Viad
Service Companies Limited, as sellers, and Ranger, as buyer, and the Company and
ASIG Europe Limited, as assignees.
"Additional Interest" means additional interest on the Notes
which the Company and the Guarantors, jointly and severally, agree to pay to the
Holders pursuant to Section 4 of the Registration Rights Agreement.
"Adjusted Net Assets" of a Guarantor at any date shall mean
the lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of
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liabilities, including, without limitation, contingent liabilities (after giving
effect to all other fixed and contingent liabilities), but excluding liabilities
under the Guarantee, of such Guarantor at such date and (y) the present fair
salable value of the assets of such Guarantor at such date exceeds the amount
that shall be required to pay the probable liability of such Guarantor on its
debts (after giving effect to all other fixed and contingent liabilities and
after giving effect to any collection from any Subsidiary of such Guarantor in
respect of the obligations of such Guarantor under the Guarantee), excluding
Indebtedness in respect of the Guarantee, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agent" means the Registrar, any Paying Agent, or agent for
service of notices and demands.
"ASIG entities" means the "ASIG entities" as defined in the
Acquisition Agreement.
"Asset Acquisition" means (a) an Investment by the Company or
any Restricted Group Member in any other Person pursuant to which such Person
shall become a Restricted Group Member, or shall be merged with or into the
Company or any Restricted Group Member or (b) the acquisition by the Company or
any Restricted Group Member of the assets of any Person (other than a Restricted
Group Member) which constitute all or substantially all of the assets of such
Person or comprise any division or line of business of such Person or any other
properties or assets of such Person other than in the ordinary course of
business.
"Asset Sale" means the sale, transfer or other disposition
(including any Sale and Lease-Back Transaction), other than to the Company or
any of its Wholly-Owned Subsidiaries, in any single transaction or series of
related transactions having a fair market value in excess of $200,000 of (a) any
Capital
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Stock of or other equity interest in any Restricted Group Member, or (b) any
other property or assets of the Company or of any Restricted Group Member
thereof (other than sales of inventory in the ordinary course of business);
provided that Asset Sales shall not include (i) sales, leases, conveyances,
transfers or other dispositions to the Company or to a Wholly-Owned Subsidiary
or to any other Person if after giving effect to such sale, lease, conveyance,
transfer or other disposition such other Person becomes a Wholly-Owned
Subsidiary; (ii) the contribution or other transfer of any assets or property to
a joint venture, partnership or other Person (which may be a Subsidiary) in
which the Company has a direct or indirect interest to the extent such
contribution or other transfer constitutes a Permitted Investment (other than by
operation of clause (iv) of the definition thereof); or (iii) the sale, transfer
or other disposition of all or substantially all of the assets of the Company or
any Guarantor as permitted under the provisions of Section 5.01.
"Asset Sale Proceeds" means, with respect to any Asset Sale,
(i) cash received by the Company or any Restricted Group Member from such Asset
Sale (including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income, transfer, value added or other taxes measured by or
resulting from such Asset Sale, (b) payment of all brokerage commissions,
underwriting and other fees and expenses related to such Asset Sale, (c)
provision for minority interest holders in any majority-owned Restricted Group
Member as a result of such Asset Sale and (d) deduction of appropriate amounts
to be provided by the Company or a Restricted Group Member as a reserve, in
accordance with GAAP, against any liabilities associated with the assets sold or
disposed of in such Asset Sale and retained by the Company or a Restricted Group
Member after such Asset Sale, including, without limitation, severance, health
care, pension and other post-employment benefit liabilities and liabilities
related to environmental matters or against any indemnification obligations
associated with the assets sold or disposed of in such Asset Sale, and (ii)
promissory notes and other non-cash consideration received by the Company or any
Restricted Group Member from such Asset Sale or other disposition upon the
liquidation or conversion of such notes or non-cash consideration into cash.
"Attributable Indebtedness" in respect of a Sale and
Lease-Back Transaction means, as at the time of determination, the greater of
(i) the fair value of the property subject to such arrangement (as determined by
the Board of Directors) and
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(ii) the present value of the total obligations (discounted at a rate of 10%,
compounded annually) of the lessee for rental payments during the remaining term
of the lease included in such Sale and Lease-Back Transaction (including any
period for which such lease has been extended).
"Available Asset Sale Proceeds" means, with respect to any
Asset Sale, the aggregate Asset Sale Proceeds from such Asset Sale that have not
been applied in accordance with Section 4.10(a)(iii)(A) or (iii)(B) and that
have not been the basis for an Excess Proceeds Offer in accordance with Section
4.10(a)(iii)(C) of the first paragraph in Section 4.10.
"Board of Directors" means (i) in the case of a Person that is
a corporation, the board of directors of such Person or any committee authorized
to act therefor, (ii) in the case of a Person that is a limited partnership, the
board of directors of its corporate general partner or any committee authorized
to act therefor (or, if the general partner is itself a limited partnership, the
board of directors of such general partner's corporate general partner or any
committee authorized to act therefor) and (iii) in the case of any other Person,
the board of directors, management committee or similar governing body or any
authorized committee thereof responsible for the management of the business and
affairs of such Person.
"Board Resolution" means a copy of a resolution certified
pursuant to an Officers' Certificate to have been duly adopted by the Board of
Directors of the Company or a Guarantor, as appropriate, and to be in full force
and effect, and delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all
shares or other equivalents (however designated and whether or not voting) of
capital stock, partnership interests or any other participation, right or other
interest in the nature of an equity interest in such Person or any option,
warrant or other security convertible into or exercisable for any of the
foregoing.
"Capitalized Lease Obligations" means Indebtedness represented
by obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
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"Change of Control" means, at any time after the Issue Date,
the occurrence of one or more of the following events: (i) any Person (including
a Person's Affiliates and associates), other than a Permitted Holder, becomes
the beneficial owner (as defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of 50% or more of the total
voting or economic power of the Common Stock of the Company or Ranger, (ii) any
Person (including a Person's Affiliates and associates), other than a Permitted
Holder, becomes the beneficial owner of more than 33 1/3% of the total voting
power of the Common Stock of the Company or Ranger, and the Permitted Holders
beneficially own, in the aggregate, a lesser percentage of the total voting
power of the Common Stock of the Company or Ranger, as the case may be, than
such other Person and do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority of the Board of
Directors of the Company, (iii) there shall be consummated any consolidation or
merger of the Company in which the Company is not the continuing or surviving
corporation or pursuant to which the Common Stock of the Company would be
converted into cash, securities or other property, other than a merger or
consolidation of the Company in which the holders of the Common Stock of the
Company outstanding immediately prior to the consolidation or merger hold,
directly or indirectly, at least a majority of the Common Stock of the surviving
corporation immediately after such consolidation or merger, or (iv) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company or Ranger (together with any
new directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Company or Ranger, as the case may be, has
been approved by a majority of the directors then still in office who either
were directors at the beginning of such period or whose election or
recommendation for election was previously so approved) cease to constitute a
majority of the Board of Directors of the Company or Ranger, as the case may be.
For purposes of this definition, "voting power" shall be deemed to include the
potential for voting power upon conversion of outstanding non-voting securities
into voting securities.
"CIBC Ventures" means CIBC Wood Gundy Ventures, Inc.
"Commodity Hedge Agreement" shall mean any option, hedge or
other similar agreement or arrangement designed to protect against fluctuations
in commodity or materials prices.
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"Common Stock" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that shall control the management and policies of such Person.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5 of
this Indenture and thereafter means the successor.
"Company Request" means any written request signed in the name
of the Company by the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer or the Treasurer of the Company and
attested to by the Secretary or any Assistant Secretary of the Company.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to any Person, the ratio of EBITDA of such Person during the four full fiscal
quarters (the "Four Quarter Period") ending on or prior to the date of the
transaction giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of such
Person for the Four Quarter Period. In addition to and without limitation of the
foregoing, for purposes of this definition, "EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis for the
period of such calculation to (i) the incurrence or repayment of any
Indebtedness of such Person or any of its Restricted Group Members (and the
application of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital purposes
pursuant to working capital facilities, occurring during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such incurrence or repayment, as the case
may be (and the application of the proceeds thereof), occurred on the first day
of the Four Quarter Period, (ii) any Asset Sales or Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise to the need to
make such calculation as a result of such Person or one of its Restricted Group
Members (including any Person who becomes a Restricted Group Member as a result
of the Asset Acquisition) incurring, assuming or otherwise being liable for
Acquired Indebtedness and also including any EBITDA (provided
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that such EBITDA shall be included only to the extent includable pursuant to the
definition of "Consolidated Net Income") attributable to the assets which are
the subject of the Asset Acquisition during the Four Quarter Period) occurring
during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such Asset
Sale or Asset Acquisition (including the incurrence, assumption or liability for
any such Acquired Indebtedness) occurred on the first day of the Four Quarter
Period and (iii) net cost savings calculated on a basis consistent with
Regulation S-X under the Securities Act (provided that both (A) such cost
savings were identified and quantified in an Officers' Certificate delivered to
the Trustee at the time of the consummation of the Asset Sale or Asset
Acquisition and (B) with respect to each Asset Sale or Asset Acquisition
completed prior to the 90th day preceding such Transaction Date, actions were
commenced or initiated by the Company within 90 days of such Asset Sale or Asset
Acquisition to effect such cost savings identified in such Officers'
Certificate). If such Person or any of its Restricted Group Members directly or
indirectly guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if such
Person or any Restricted Group Member of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness. Furthermore, in calculating
"Consolidated Fixed Charges" for purposes of determining the denominator (but
not the numerator) of this "Consolidated Fixed Charge Coverage Ratio," (1)
interest on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which shall continue to be so determined thereafter shall
be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction Date; and (2)
notwithstanding clause (1) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by one or more
Interest Rate Agreements, shall be deemed to accrue at the rate per annum
resulting after giving effect to the operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any
Person, for any period, the sum of (i) Consolidated Interest Expense, plus (ii)
without duplication, the product of (x) the amount of all dividend payments on
any series of Preferred Stock of such Person or any Restricted Group Member,
determined on a consolidated basis (other than dividends paid in Capital Stock
(other than Disqualified Capital Stock) of such Person or any of its
Wholly-Owned Subsidiaries) paid, accrued or scheduled to be paid or accrued
during such period times (y) a fraction,
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the numerator of which is one and the denominator of which is one minus the then
current effective consolidated federal, state and local tax rate of such Person,
expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any
Person, for any period, the aggregate amount of interest which, in conformity
with GAAP (without taking into account interest incurred by Unrestricted
Subsidiaries or Permitted Joint Ventures), would be set forth opposite the
caption "interest expense" or any like caption on an income statement for such
Person and its Restricted Group Members on a consolidated basis (including, but
not limited to, (i) imputed interest included in Capitalized Lease Obligations,
(ii) all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing, (iii) the net costs
associated with hedging obligations, (iv) amortization of deferred financing
costs, (v) the interest portion of any deferred payment obligation, (vi)
amortization of discount or premium, if any, and (vii) all other non-cash
interest expense (including PIK Interest) (other than interest amortized to cost
of sales)) plus, without duplication, all net capitalized interest for such
period and all interest paid under any guarantee of Indebtedness (including a
guarantee of principal, interest or any combination thereof) of any Person, plus
the amount of all dividends or distributions paid on Disqualified Capital Stock
(other than dividends paid or payable in shares of Capital Stock of the
Company), less the amortization of deferred financing costs, and excluding,
however, any amount of such interest of any Restricted Group Member if the net
income of such Restricted Group Member is excluded in the calculation of
Consolidated Net Income pursuant to clause (a) or (f) of the definition thereof
(but only in the same proportion as the net income of such Restricted Group
Member is excluded from the calculation of Consolidated Net Income pursuant to
clause (a) or (f) of the definition thereof).
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate of the Net Income of such Person and its
Restricted Group Members for such period, on a consolidated basis, determined in
accordance with GAAP; provided, however, that (a) the Net Income of (i) any
Person (the "other Person") in which the Person in question or any of its
Restricted Group Members has less than a 100% interest (which interest does not
cause the Net Income of such other Person to be consolidated into the net income
of the Person in question in accordance with GAAP), (ii) any Unrestricted
Subsidiary or (iii) any Permitted Joint Venture shall be included only to the
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extent of the amount of dividends or distributions paid to the Person in
question or the Restricted Group Member, (b) the Net Income of any Restricted
Group Member of the Person in question that is subject to any restriction or
limitation (including without limitation as a result of the failure of such
dividend or distribution to be irrevocably authorized by other members of a
Restricted Joint Venture, where such other members' authorization is necessary
for such dividend or distribution or such other members otherwise have the
ability to restrict or limit such dividend or distribution) on the payment of
dividends or the making of other distributions (other than pursuant to the
Notes, this Indenture or the Senior Credit Facility) shall be excluded to the
extent of such restriction or limitation, (c) (i) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition and (ii) any net gain or loss resulting from an Asset Sale
by the Person in question or any of its Restricted Group Members other than in
the ordinary course of business shall be excluded, (d) extraordinary gains and
losses shall be excluded, (e) without duplication, the write-off of fees and
expenses arising from the Acquisition shall be excluded, (f) income or loss
attributable to discontinued operations (including without limitation operations
disposed of during such period whether or not such operations were classified as
discontinued) shall be excluded in an amount not to exceed $2,000,000 for any
four quarter period, (g) to the extent not otherwise excluded in accordance with
GAAP, the Net Income of any Restricted Group Member in an amount that
corresponds to the percentage ownership interest in the income of such
Restricted Group Member not owned on the last day of such period, directly or
indirectly, by such Person shall be excluded, (h) dividends or distributions
from Permitted Joint Ventures or Restricted Joint Ventures shall in any event be
excluded to the extent used to increase the amount available for Investment
under clause (xii) of the definition of "Permitted Investments" in accordance
with the terms thereof and (i) dividends, distributions and any other payments
constituting return on capital from Investments shall in any event be excluded
to the extent used to increase the amount available for Investment under clause
(xiii) of the definition of "Permitted Investments" in accordance with the terms
thereof.
"Consolidated Net Worth" means, with respect to any Person at
any date, the consolidated stockholder's equity of such Person less the amount
of such stockholder's equity attributable to Disqualified Capital Stock of such
Person and its Subsidiaries, as determined in accordance with GAAP.
16
-10-
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust Division.
"Default" means any condition or event that is, or with the
passing of time or giving of any notice expressly required under this Indenture
(or both) would be, an Event of Default.
"Depository" means, with respect to the Notes issued in the
form of one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Company, which Person must be a clearing agency
registered under the Exchange Act.
"Disqualified Capital Stock" means any Capital Stock of a
Person which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the maturity date of the
Notes, for cash or securities constituting Indebtedness. Without limitation of
the foregoing, Disqualified Capital Stock shall be deemed to include any
Preferred Stock of the Company, with respect to which, under the terms of such
Preferred Stock, by agreement or otherwise, the Company is obligated to pay
current dividends or distributions in cash during the period prior to the
maturity date of the Notes; provided, however, that Preferred Stock of the
Company that is issued with the benefit of provisions requiring a change of
control offer to be made for such Preferred Stock in the event of a change of
control of the Company, which provisions have substantially the same effect as
Section 4.18 shall not be deemed to be Disqualified Capital Stock solely by
virtue of such provisions.
"Domestic" with respect to any Person means a Person whose
jurisdiction of incorporation or formation is the United States, any state
thereof or the District of Columbia.
"EBITDA" means, for any Person, for any period, an amount
equal to (a) the sum of (i) Consolidated Net Income for such period, plus (ii)
the provision for taxes for such period based on income or profits to the extent
such income or profits were included in computing Consolidated Net Income and
any provision
17
-11-
for taxes utilized in computing net loss under clause (i) hereof, plus (iii)
Consolidated Interest Expense for such period (but only including Redeemable
Dividends in the calculation of such Consolidated Interest Expense to the extent
that such Redeemable Dividends have not been excluded in the calculation of
Consolidated Net Income), plus (iv) depreciation for such period on a
consolidated basis, plus (v) amortization of intangibles for such period on a
consolidated basis, plus (vi) any other non-cash items (excluding any such
non-cash item to the extent that it represents an accrual of or reserve for a
cash expense in any future period or amortization of a prepaid cash expense that
was paid in a prior period) reducing Consolidated Net Income for such period,
minus (b) all such non-cash items increasing Consolidated Net Income for such
period, all for such Person and its Subsidiaries determined in accordance with
GAAP, except that with respect to the Company each of the foregoing items shall
be determined on a consolidated basis with respect to the Company and its
Restricted Group Members only; provided, however, that, for purposes of
calculating EBITDA during any fiscal quarter, cash income from a particular
Investment (other than in a Subsidiary which under GAAP is consolidated or a
Restricted Joint Venture) of such Person shall be included only (x) to the
extent cash income has been received by such Person with respect to such
Investment, or (y) if the cash income derived from such Investment is
attributable to Temporary Cash Investments.
"Eligible Receivables" means "Eligible Account Receivable" as
that term is defined in the Senior Credit Facility.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" shall have the meaning assigned thereto in
the Registration Rights Agreement.
"fair market value" means, with respect to any asset or
property, the price which could be negotiated in an arm's length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction.
"GAAP" means generally accepted accounting principles
consistently applied as in effect in the United States from time to time.
18
-12-
"Guarantee" means, as the context may require, individually, a
guarantee, or collectively, any and all guarantees, of the Obligations of the
Company with respect to the Notes by each Guarantor, if any, pursuant to the
terms of this Indenture.
"Guarantor" means Aircraft Service International, Inc.,
Florida Aviation Fueling Company, Inc., Dispatch Services, Inc., and each
Domestic Restricted Subsidiary of the Company that hereafter becomes a Guarantor
pursuant to this Indenture, and "Guarantors" means such entities, collectively.
"▇▇▇▇▇▇▇" means ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "incurrence," "incurred," "incurrable" and "incurring" shall
have meanings correlative to the foregoing); provided that a change in GAAP that
results in an obligation of such Person that exists at such time becoming
Indebtedness shall not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to
any Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (excluding, without limitation, any balances that
constitute accounts payable or trade payables in the ordinary course of
business, any obligations to other members of a "consortium" or similar group of
aircraft service providers arising from the fact that such Person holds cash and
manages aircraft fuel inventories on behalf of such other consortium members in
the ordinary course of business, and other accrued liabilities arising in the
ordinary course of business) if and to the extent any of the foregoing
indebtedness would appear as a liability upon a balance sheet of such
19
-13-
Person prepared in accordance with GAAP, and shall also include, to the extent
not otherwise included (i) any Capitalized Lease Obligations, (ii) obligations
secured by a Lien to which the property or assets owned or held by such Person
is subject, whether or not the obligation or obligations secured thereby shall
have been assumed (provided, however, that if such obligation or obligations
shall not have been assumed, the amount of such Indebtedness shall be deemed to
be the lesser of the principal amount of the obligation or the fair market value
of the pledged property or assets), (iii) guarantees of items of other Persons
which would be included within this definition for such other Persons (whether
or not such items would appear upon the balance sheet of the guarantor), (iv)
all obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction (provided that in the case of
any such letters of credit, the items for which such letters of credit provide
credit support are those of other Persons which would be included within this
definition for such other Persons), (v) Disqualified Capital Stock of such
Person or any Restricted Group Member thereof, and (vi) obligations of any such
Person under any Interest Rate Agreement applicable to any of the foregoing (if
and to the extent such Interest Rate Agreement obligations would appear as a
liability upon a balance sheet of such Person prepared in accordance with GAAP).
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and,
with respect to contingent obligations, the maximum liability upon the
occurrence of the contingency giving rise to the obligation, provided (i) that
the amount outstanding at any time of any Indebtedness issued with original
issue discount is the principal amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such Indebtedness at such
time as determined in conformity with GAAP and (ii) that Indebtedness shall not
include any liability for United States or foreign, federal, state, local or
other taxes. Notwithstanding any other provision of the foregoing definition,
any trade payable arising from the purchase of goods or materials or for
services obtained in the ordinary course of business shall not be deemed to be
"Indebtedness" of the Company or any Restricted Group Member for purposes of
this definition. Furthermore, guarantees of (or obligations with respect to
letters of credit supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
20
-14-
"Individual Investors" means the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust,
▇▇▇▇▇▇▇▇ Street Partners II, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501 (a)(1), (2), (3)
or (7) promulgated under the Securities Act.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Rate Agreement" shall mean any interest or foreign
currency rate swap, cap, collar, option, hedge, forward rate or other similar
agreement or arrangement designed to protect against fluctuations in interest
rates or currency exchange rates.
"Inventory" means "Inventory" as that term is defined in the
Senior Credit Facility.
"Investments" means, directly or indirectly, any advance,
account receivable (other than an account receivable arising in the ordinary
course of business or acquired as part of the assets acquired by the Company or
any Restricted Group Member in connection with an acquisition of assets which is
otherwise permitted by the terms of this Indenture), loan or capital
contribution to (by means of transfers of property to others, payments for
property or services for the account or use of others or otherwise), the
purchase of any stock, bonds, notes, debentures, partnership or joint venture
interests or other securities of, the acquisition, by purchase or otherwise, of
all or substantially all of the business or assets or stock or other evidence of
beneficial ownership of, any Person or the making of any investment in any
Person. Investments shall exclude (i) extensions of trade credit on commercially
reasonable terms in accordance with normal trade practices and (ii) the
repurchase of securities of any Person by such Person. For the purposes of
Section 4.09, "Investment" shall include the fair market value of the net assets
of any Restricted Group Member (in the case of any Restricted Joint Venture, to
the extent of the Company's or its Restricted Subsidiary's direct or indirect
ownership interest in such net assets) at the time that such Restricted Group
Member is designated an Unrestricted Subsidiary or Permitted Joint Venture and
shall exclude the fair market value of the net assets of any Unrestricted
Subsidiary or Permitted Joint Venture at the time that such Unrestricted
Subsidiary or Permitted Joint Venture is designated a Restricted
21
-15-
Group Member. If the Company or any Restricted Group Member of the Company
sells or otherwise disposes of any Common Stock of any direct or indirect
Restricted Subsidiary of the Company such that, after giving effect to any such
sale or disposition, the Company no longer owns, directly or indirectly, greater
than 50% of the outstanding Common Stock of such Restricted Subsidiary, the
Company shall be deemed to have made an Investment on the date of any such sale
or disposition equal to the fair market value of the Common Stock of such
Restricted Subsidiary not sold or disposed of.
"Issue Date" means the date the Notes are first issued by the
Company and authenticated by the Trustee under this Indenture.
"Lien" means, with respect to any property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement, encumbrance,
preference, priority, or other security agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such property or assets
(including, without limitation, any Capitalized Lease Obligation, conditional
sales, or other title retention agreement having substantially the same economic
effect as any of the foregoing).
"Maturity Date" means August 15, 2005.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"Net Income" means, with respect to any Person for any period,
the net income (loss) of such Person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of Capital
Stock by or equity contribution to any Person, the aggregate net proceeds
received by such Person, after payment of expenses, commissions and the like
incurred in connection therewith, whether such proceeds are in cash or in
property (valued at the fair market value thereof, as determined in good faith
by the Board of Directors of such Person, at the time of receipt) and (b) in the
case of any exchange, exercise, conversion or surrender of outstanding
securities of any kind for or into shares of Capital Stock of such Person which
is not Disqualified Capital Stock, the net book value of such outstanding
securities on the date of such exchange, exercise, conversion or surrender (plus
any additional amount required to be paid by
22
-16-
the holder to such Person upon such exchange, exercise, conversion or surrender,
less any and all payments made to the holders, e.g., on account of fractional
shares and less all expenses incurred by such Person in connection therewith).
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Notes" means the securities that are issued under this
Indenture, as amended or supplemented from time to time pursuant to this
Indenture.
"Obligations" means, with respect to any Indebtedness, any
principal, premium, interest, penalties, fees, indemnifications, reimbursements,
damages and other expenses payable under the documentation governing such
Indebtedness.
"Offering" means the offering of the Notes as described in the
Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum dated
August 13, 1998 pursuant to which the Notes were offered.
"Officer," with respect to any Person (other than the
Trustee), means the Chief Executive Officer, the President, any Vice President
and the Chief Financial Officer, the Treasurer or the Secretary of such Person,
or any other officer designated by the Board of Directors of such Person, as the
case may be.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by an Officer of such Person that shall comply with
applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion reasonably
satisfactory in form and substance to the Trustee from legal counsel which
counsel is reasonably acceptable to the Trustee (it being agreed that ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇ is acceptable) stating the matters required by Section 11.05 and delivered
to the Trustee.
"Permitted Holders" means, collectively, (i) the Company and
Ranger, (ii) ▇▇▇▇▇▇▇, Tioga, CIBC Ventures, and any Affiliate of the foregoing
(other than any of their portfolio companies) and (iii) the Individual
Investors, each of the spouses, children (adoptive or biological) or other
lineal descendants of the Individual Investors, the probate estate of any such
individual and any trust, so long as one or more of
23
-17-
the foregoing individuals retain substantially all of the controlling or
beneficial interest thereunder.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company or any Guarantor arising
under or in connection with the Senior Credit Facility in an amount not
to exceed the greater of (A) $15,000,000 less the aggregate amount of
all mandatory prepayments actually made thereunder to the extent that
the corresponding commitments have been permanently reduced and all
scheduled payments actually made thereunder, or (B) the aggregate of
85% of Eligible Receivables and 60% of eligible Inventory;
(ii) Indebtedness under the Notes and the Guarantees;
(iii) Indebtedness of non-Domestic Wholly-Owned Subsidiaries
and Restricted Joint Ventures outstanding under one or more working
capital facilities not to exceed the aggregate of 85% of eligible
accounts receivable and 60% of eligible inventory of each such
non-Domestic Wholly-Owned Subsidiary or Restricted Joint Venture;
(iv) Indebtedness not covered by any other clause of this
definition which is outstanding on the date of this Indenture;
(v) Indebtedness of the Company to any Wholly-Owned
Subsidiary of the Company and Indebtedness of any Wholly-Owned
Subsidiary of the Company to the Company or another Wholly-Owned
Subsidiary of the Company; provided that (A) if the Company or any
Guarantor is the obligor on such Indebtedness, such Indebtedness is
unsecured and expressly subordinated to the payment in full in cash to
all obligations in respect of the Notes and the Guarantee of such
Guarantor and (B)(I) any subsequent issuance or transfer of equity
interests that results in any such Indebtedness being held by a Person
other than the Company or a Wholly-Owned Subsidiary of the Company and
(II) any sale or transfer of any such Indebtedness to a Person other
than the Company or a Wholly-Owned Subsidiary of the Company shall be
deemed to constitute an incurrence of Indebtedness by the Company or
such Restricted Group Member not permitted by this clause (v);
(vi) Interest Rate Agreements;
24
-18-
(vii) Refinancing Indebtedness;
(viii) Indebtedness under Commodity Hedge Agreements entered
into in the ordinary course of business consistent with reasonable
business requirements and not for speculation;
(ix) Indebtedness consisting of guarantees made in the
ordinary course of business by the Company or its Subsidiaries of
obligations of the Company or any of its Wholly-Owned Subsidiaries,
which obligations are otherwise permitted under this Indenture;
(x) contingent obligations of the Company or its
Subsidiaries in respect of customary indemnification and purchase price
adjustment obligations incurred in connection with an Asset Sale;
provided that the maximum assumable liability in respect of all such
obligations shall at no time exceed the gross proceeds actually
received by the Company and its Subsidiaries in connection with such
Asset Sale;
(xi) Purchase Money Indebtedness and Capitalized Lease
Obligations of the Company and its Subsidiaries incurred to acquire
property in the ordinary course of business and any refinancings,
renewals or replacements of any such Purchase Money Indebtedness or
Capitalized Lease Obligation (subject to the limitations on the
principal amount thereof set forth in this clause (xi)), the principal
amount of which Purchase Money Indebtedness and Capitalized Lease
Obligations shall not in the aggregate at any one time outstanding
exceed $2,500,000; and
(xii) additional Indebtedness of the Company or any Guarantor
(other than Indebtedness specified in clauses (i) through (xi) above)
not to exceed $5,000,000 in the aggregate at any one time outstanding.
"Permitted Investments" means, for any Person, Investments
made on or after the date of this Indenture consisting of:
(i) Investments by the Company, or by a Restricted Subsidiary
thereof, in the Company or a Restricted Subsidiary;
(ii) Temporary Cash Investments;
25
-19-
(iii) Investments by the Company, or by a Restricted
Subsidiary thereof, in a Person, if as a result of such Investment (a)
such Person becomes a Restricted Subsidiary of the Company, (b) such
Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary thereof or (c)
such business or assets are owned by the Company or a Restricted
Subsidiary;
(iv) an Investment that is made by the Company or a
Restricted Subsidiary thereof in the form of any stock, bonds, notes,
debentures, partnership or joint venture interests or other securities
that are issued by a third party to either or both of the Company or a
Restricted Subsidiary solely as partial consideration for the
consummation of an Asset Sale that is otherwise permitted by Section
4.10;
(v) Investments consisting of (a) purchases and acquisitions
of inventory, supplies, materials and equipment, or (b) licenses or
leases of intellectual property and other assets in each case in the
ordinary course of business;
(vi) Investments consisting of (a) loans and advances to
employees for reasonable travel, relocation and business expenses in
the ordinary course of business and loans to directors or employees of
Ranger, the Company or its Subsidiaries for the sole purpose of
purchasing equity of Ranger, the principal amount of which loans and
advances permitted by this clause (vi)(a) shall not exceed $1,500,000
in the aggregate at any one time outstanding (excluding any such loans
or advances outstanding on the date of this Indenture), (b) extensions
of trade credit in the ordinary course of business, and (c) prepaid
expenses incurred in the ordinary course of business;
(vii) without duplication, Investments consisting of
Indebtedness permitted pursuant to clause (v) of the definition of
"Permitted Indebtedness;"
(viii) Investments existing on the date of this Indenture;
(ix) Investments of the Company under Interest Rate
Agreements;
26
-20-
(x) Investments under Commodity Hedge Agreements entered
into in the ordinary course of business consistent with reasonable
business requirements and not for speculation;
(xi) Investments consisting of endorsements for collection or
deposit in the ordinary course of business;
(xii) Investments in Permitted Joint Ventures and Restricted
Joint Ventures, or in a Person which as a result of such Investment
becomes a Permitted Joint Venture or Restricted Joint Venture; provided
that (A) at the time such Investment is made, no Default or Event of
Default shall have occurred and be continuing (or would result
therefrom); and (B) after giving effect to such Investment, the
aggregate Investment made by the Company and its Restricted Group
Members in Permitted Joint Ventures and Restricted Joint Ventures does
not exceed 5% of the Company's consolidated assets (other than goodwill
and other intangibles); provided, further, that the amount available
for Investments to be made pursuant to this clause (xii) shall be
increased from time to time to the extent any return on capital is
received by the Company or a Wholly-Owned Subsidiary on an Investment
made in reliance on this clause (xii), in each case, up to, but not
exceeding, the amount of the original Investment but only to the extent
such return on capital is excluded from Consolidated Net Income;
(xiii) Investments consisting of stock, obligations or
securities received as part of or in connection with the bankruptcy,
winding up, liquidation or reorganization of a Person that is or was a
customer of the Company or any of its Subsidiaries, unless such stock,
obligations or securities are received in consideration for an
Investment made in such Person in connection with or anticipation of
such bankruptcy, winding up or liquidation;
(xiv) Investments, to the extent that the consideration
provided by the Company or any Restricted Group Member consists solely
of Capital Stock (other than Disqualified Capital Stock) of the
Company; and
(xv) Investments (other than Investments specified in clauses
(i) through (xiv) above) in an aggregate amount, as valued at the time
each such Investment is made, not exceeding $1,000,000 for all such
Investments from and after the date of this Indenture; provided that
the amount
27
-21-
available for Investments to be made pursuant to this clause (xv) shall
be increased from time to time to the extent any return on capital is
received by the Company or a Wholly-Owned Subsidiary on an Investment
made in reliance on this clause (xv), in each case, up to, but not
exceeding, the amount of the original Investment but only to the extent
such return on capital is excluded from Consolidated Net Income.
"Permitted Joint Venture" means any joint venture arrangement
(which may be structured as a corporation, partnership, trust, limited liability
company or any other Person) if (a) no Affiliate (other than a Restricted
Subsidiary of the Company) of the Company or a Restricted Subsidiary has an
Investment in such Person, (b) such Person is engaged in the business of
providing aviation services or aerospace support, (c) the Company, directly or
through its Restricted Subsidiaries, at all times owns at least 25% of the total
outstanding shares of Capital Stock of such Person entitled to participate in
distributions in respect of the earnings, sale or liquidation of such Person,
(d) the Company, directly or through its Restricted Subsidiaries, is entitled to
(A) in the case of an Investment in Capital Stock, receive dividends or other
distributions on its Investment at the same time as or prior to, and on a basis
at least pro rata with, any other holder or holders of Capital Stock of such
Person and (B) in the case of an Investment other than in Capital Stock, receive
interest thereon at a rate per annum not less than the rate on the Notes and, on
the liquidation or dissolution of such Person, receive repayment of the
principal thereof prior to the payment of any dividends or distributions on
Capital Stock of such Person, (e) the Company, directly or through its
Restricted Subsidiaries, either (x) controls, under an operating and management
agreement or otherwise, the day-to-day management and operation of such Person
and any facility of the Person in which the Investment is made or (y) has
significant influence over the management and operation of such Person and any
facility of such Person in all material respects (significant influence to
include the right to control or veto any material act or decision) in connection
with such management or operation, and (f) no default with respect to any
Indebtedness of such Person or any Subsidiary of such Person (including any
right which the holders thereof may have to take enforcement action against such
Person) would permit (upon notice, lapse of time or both) any holder of any
material Indebtedness of the Company or its Restricted Subsidiaries to declare a
default on such Indebtedness or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity. If, at any time, a Permitted
28
-22-
Joint Venture fails to comply with clauses (a) through (f) above, such Permitted
Joint Venture shall constitute an Investment and must comply with Section 4.09
(but only with respect to the Company's then net Investment in such Permitted
Joint Venture).
"Permitted Liens" means (i) Liens on property or assets of, or
any shares of stock of or secured debt of, any corporation existing at the time
such corporation becomes a Restricted Subsidiary of the Company or at the time
such corporation is merged into the Company or any of its Restricted
Subsidiaries; provided that such Liens are not incurred in connection with, or
in contemplation of, such corporation becoming a Restricted Subsidiary of the
Company or merging into the Company or any of its Restricted Subsidiaries, (ii)
Liens securing Refinancing Indebtedness; provided that any such Lien does not
extend to or cover any Property, shares or debt other than the Property, shares
or debt securing the Indebtedness so refunded, refinanced or extended, (iii)
Liens in favor of the Company or any of its Restricted Group Members, (iv) Liens
securing industrial revenue bonds, (v) Liens to secure Purchase Money
Indebtedness and Capitalized Lease Obligations that are permitted under the
definition of "Permitted Indebtedness" in an aggregate amount at any one time
outstanding not to exceed 5% of the Company's consolidated assets (other than
goodwill and other intangibles); provided that (a) with respect to any Purchase
Money Indebtedness, any such Lien is created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the cost
(including sales and excise taxes, installation and delivery charges and other
direct costs of, and other direct expenses paid or charged in connection with,
such purchase or construction) of such Property, (b) with respect to any
Purchase Money Indebtedness, the principal amount of the Indebtedness secured by
such Lien does not exceed 100% of such costs, and (c) such Lien does not extend
to or cover any Property other than the item of Property that is the subject of
such Purchase Money Indebtedness or Capitalized Lease Obligation, as the case
may be, and any improvements on such item, (vi) statutory liens or landlords',
carriers', warehousemen's, mechanics', suppliers', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which do not secure
any Indebtedness and with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings, if a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor, (vii) Liens for taxes, assessments or
governmental charges that are being contested in good faith by appropriate
proceedings, (viii) Liens on Collateral
29
-23-
(as defined in the Senior Credit Facility as in effect on the Issue Date)
securing Permitted Indebtedness under the Senior Credit Facility, (ix) Liens on
accounts receivable and inventory of non-Domestic Wholly-Owned Subsidiaries or
Restricted Joint Ventures securing Permitted Indebtedness under the working
capital facilities described in clause (iii) of the definition of "Permitted
Indebtedness," (x) Liens securing Indebtedness of the Company or any Guarantor
incurred in reliance upon clause (xii) of the definition of "Permitted
Indebtedness"; (xi) Liens (other than Liens specified in clauses (viii) through
(x) above) securing Indebtedness of the Company or any Guarantor in an aggregate
amount not to exceed $15,000,000 at any one time outstanding incurred pursuant
to a credit facility otherwise permitted by the terms of this Indenture; (xii)
Liens existing on the date of this Indenture, (xiii) any extensions,
substitutions, replacements or renewals of the foregoing, (xiv) Liens incurred
in the ordinary course of business in connection with worker's compensation,
unemployment insurance or other forms of government insurance or benefits, or to
secure the performance of letters of credit, bids, tenders, statutory
obligations, surety and appeal bonds, leases, government contracts and other
similar obligations (other than obligations for borrowed money) entered into in
the ordinary course of business, (xv) any attachment or judgment Lien not
constituting an Event of Default under this Indenture that is being contested in
good faith by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP (if so required), (xvi) Liens arising from
the filing, for notice purposes only, of financing statements in respect of
operating leases, (xvii) Liens arising by operation of law in favor of
depositary banks and collecting banks, incurred in the ordinary course of
business, (xviii) Liens consisting of restrictions on the transfer of securities
pursuant to applicable federal and state securities laws, (xix) interests of
lessors and licensors under leases and licenses to which the Company or any of
its Restricted Group Members is a party, (xx) with respect to any real property
occupied by the Company or any of its Restricted Group Members, all easements,
rights of way, licenses and similar encumbrances on or defects of title that do
not materially impair the use of such property for its intended purposes, and
(xxi) Liens securing Indebtedness or other obligations in an aggregate amount
not to exceed $250,000 at any one time outstanding.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or gov-
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ernment including any agency or political subdivision thereof).
"Physical Notes" means certificated Notes in registered form
in substantially the form set forth in Exhibit A.
"PIK Interest" means, with respect to any Indebtedness, any
interest thereon paid or payable in the form of additional Indebtedness.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders
of other Capital Stock issued by such Person.
"Private Exchange Notes" shall have the meaning assigned
thereto in the Registration Rights Agreement.
"Private Placement Legend" means the legend initially set
forth on the Rule 144A Notes and on any Physical Notes (other than Regulation S
Notes) delivered prior to the issuance of the Exchange Notes in the form set
forth in Exhibit B.
"Property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"Public Offering" means an underwritten public offering and
sale by the Company or Ranger of shares of its common stock (however designated
and whether voting or non-voting) and any and all rights, warrants or options to
acquire such common stock pursuant to a registration statement registered
pursuant to the Securities Act.
"Purchase Money Indebtedness" means any Indebtedness incurred
by a Person to finance (within 90 days from incurrence) the cost (including the
cost of construction) of an item of Property acquired in the ordinary course of
business, the principal amount of which Indebtedness does not exceed the sum of
(i) 100% of such cost and (ii) reasonable fees and expenses of such Person
incurred in connection therewith.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A promulgated under the Securities Act.
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"Ranger" means Ranger Aerospace Corporation, a Delaware
corporation.
"Redeemable Dividend" means, for any dividend or distribution
with regard to Disqualified Capital Stock, the quotient of the dividend or
distribution divided by the difference between one and the maximum statutory
federal income tax rate (expressed as a decimal number between 1 and 0) then
applicable to the Company of such Disqualified Capital Stock.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to the terms of the
Notes.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances or extends any Indebtedness of the Company outstanding on the Issue
Date or other Indebtedness permitted to be incurred by the Company or its
Restricted Group Members pursuant to the terms of this Indenture, but only to
the extent that (i) the Refinancing Indebtedness is subordinated to the Notes to
at least the same extent as the Indebtedness being refunded, refinanced or
extended, if at all, (ii) the Refinancing Indebtedness is scheduled to mature
either (a) no earlier than the Indebtedness being refunded, refinanced or
extended, or (b) after the maturity date of the Notes, (iii) the portion, if
any, of the Refinancing Indebtedness that is scheduled to mature on or prior to
the maturity date of the Notes has a weighted average life to maturity at the
time such Refinancing Indebtedness is incurred that is equal to or greater than
the weighted average life to maturity of the portion of the Indebtedness being
refunded, refinanced or extended that is scheduled to mature on or prior to the
maturity date of the Notes, (iv) such Refinancing Indebtedness is in an
aggregate principal amount that is equal to or less than the sum of (a) the
aggregate principal amount then outstanding under the Indebtedness being
refunded, refinanced or extended, (b) the amount of accrued and unpaid interest,
if any, and premiums owed, if any, not in excess of preexisting prepayment
provisions on such Indebtedness being refunded, refinanced or extended and (c)
the amount of customary fees, expenses and costs related to the incurrence of
such Refinancing Indebtedness, and (v) such Refinancing Indebtedness is incurred
by the same Person that initially incurred the Indebtedness being refunded,
refinanced or extended.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of August 18, 1998 among the
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Company, the Guarantors and CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp., as Initial Purchaser.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Responsible Officer," when used with respect to the Trustee,
means an officer or assistant officer assigned to the corporate trust department
of the Trustee (or any successor group of the Trustee) including any vice
president, assistant vice president, assistant secretary, treasurer or assistant
treasurer or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Group Members" means, collectively, each
Restricted Subsidiary of the Company, each Restricted Joint Venture and each
Restricted Subsidiary of a Restricted Joint Venture.
"Restricted Joint Venture" means a Permitted Joint Venture
that has been designated by the Board of Directors of the Company as a
Restricted Joint Venture based on its good faith determination, evidenced by a
board resolution, that the Company has, directly or indirectly, the requisite
control over such Permitted Joint Venture to prevent it from incurring
Indebtedness, or taking any other action at any time, in contravention of any of
the provisions of this Indenture that are applicable to Restricted Joint
Ventures; provided that, immediately after giving effect to such designation,
(i) the Indebtedness and Liens of such Permitted Joint Venture outstanding
immediately after such designation would, if incurred at such time, have been
permitted to be incurred for all purposes of this Indenture; and (ii) no Default
or Event of Default shall have occurred and be continuing. The Company shall
deliver an Officers' Certificate to the Holders upon designating any Permitted
Joint Venture as a Restricted Joint Venture. As of the Issue Date, Omni Aircraft
will not be a Restricted Joint Venture.
"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or any other distribution or payment on
Capital Stock of the Company or any Restricted Group Member or any payment made
to the direct or indirect holders (in their capacities as such) of Capital Stock
33
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of the Company or any Restricted Group Member (other than (x) dividends or
distributions payable solely in Capital Stock (other than Disqualified Capital
Stock) or in options, warrants or other rights to purchase Capital Stock (other
than Disqualified Capital Stock), and (y) in the case of Restricted Group
Members, dividends or distributions payable to the Company or to a Wholly-Owned
Subsidiary of the Company), (ii) the purchase, redemption or other acquisition
or retirement for value of any Capital Stock of the Company or any of its
Restricted Group Members (other than Capital Stock owned by the Company or a
Wholly-Owned Subsidiary of the Company, excluding Disqualified Capital Stock) or
any option, warrants or other rights to purchase such Capital Stock, (iii) the
making of any principal payment on, or the purchase, defeasance, repurchase,
redemption or other acquisition or retirement for value, prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund payment, of any
Indebtedness which is subordinated in right of payment to the Notes other than
subordinated Indebtedness acquired in anticipation of satisfying a scheduled
sinking fund obligation, principal installment or final maturity (in each case
within one year of the date of acquisition), (iv) the making of any Investment
or guarantee of any Investment in any Person other than a Permitted Investment,
(v) any designation of a Restricted Group Member as an Unrestricted Subsidiary
or a Permitted Joint Venture on the basis of the Investment by the Company
therein and (vi) forgiveness of any Indebtedness of an Affiliate of the Company
(other than a Restricted Group Member) to the Company or a Restricted Group
Member (other than the cancellation of loans to directors or employees of
Ranger, the Company or its Subsidiaries made in accordance with clause (vi) of
the definition of "Permitted Investments" in connection with the return to
Ranger of the equity of Ranger originally purchased by such director as employee
with the proceeds of such loan). For purposes of determining the amount expended
for Restricted Payments, cash distributed or invested shall be valued at the
face amount thereof and property other than cash shall be valued at its fair
market value determined in good faith by the Company's Board of Directors.
"Restricted Subsidiary" means a Subsidiary of the Company
other than an Unrestricted Subsidiary and includes all of the Subsidiaries of
the Company existing at the date of this Indenture. The Board of Directors of
the Company may designate any Unrestricted Subsidiary or any Person that is to
become a Subsidiary as a Restricted Subsidiary if immediately after giving
effect to such action (and treating any Acquired Indebtedness as having been
incurred at the time of such action), (i) the Company could have incurred at
least $1.00 of addi-
34
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tional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.06
and (ii) no Default or Event of Default shall have occurred and be continuing.
The Company shall deliver an Officers' Certificate to the Holders upon
designating any Unrestricted Subsidiary as a Restricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Sale and Lease-Back Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Restricted Group
Member of any real or tangible personal Property, which Property has been or is
to be sold or transferred by the Company or such Restricted Group Member to such
Person in contemplation of such leasing.
"S&P" means Standard & Poor's Corporation and its successors.
"SEC" means the United States Securities and Exchange
Commission as constituted from time to time or any successor performing
substantially the same functions.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means the Credit and Security
Agreement dated as of April 2, 1998 between the Company and Key Corporate
Capital Inc., together with the documents related thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings
thereunder or adding Subsidiaries as additional borrowers or guarantors
thereunder (provided that such increase in borrowings or adding Subsidiaries of
the Company as additional borrowers or guarantors is permitted by Section 4.06)
all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"Subsidiary" of any specified Person means any corporation,
partnership, limited liability company, joint venture, association or other
business entity, whether now existing or hereafter organized or acquired, (i) in
the case of a corporation, of which more than 50% of the total voting power of
the
35
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Capital Stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, officers or trustees thereof is held by such
first-named Person or any of its Subsidiaries; or (ii) in the case of a
partnership, limited liability company, joint venture, association or other
business entity, with respect to which such first-named Person or any of its
Subsidiaries has the power to direct or cause the direction of the management
and policies of such entity by contract or otherwise or if in accordance with
GAAP such entity is consolidated with the first-named Person for financial
statement purposes.
"Temporary Cash Investments" means (i) Investments in
marketable direct obligations issued or guaranteed by the United States of
America, or of any governmental agency or political subdivision thereof,
maturing within 365 days of the date of purchase; (ii) Investments in
certificates of deposit and eurodollar time deposits issued by a bank organized
under the laws of the United States of America, any state thereof (or the
District of Columbia) or any foreign country recognized by the United States, in
each case having capital, surplus and undivided profits at the time of
investment totaling more than $500,000,000 (or the foreign currency equivalent
thereof) and rated at the time of investment at least A by S&P and A-2 by
▇▇▇▇▇'▇ (or similar equivalent foreign ratings), maturing within 365 days of
purchase; (iii) Investments not exceeding 365 days in duration in money market
funds that invest substantially all of such funds' assets in the Investments
described in the preceding clauses (i) and (ii); (iv) Investments in commercial
paper with a maturity of 180 days or less issued by a corporation (except an
Affiliate of the Company) organized under the laws of any state of the United
States (or the District of Columbia) or any foreign country recognized by the
United States and at the time of investment rated at least A-1 by S&P or at
least P-1 by ▇▇▇▇▇'▇ (or similar equivalent foreign ratings) and (v) Investments
in repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (i) above entered into with a bank
meeting the qualifications described in clause (ii) above.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
▇▇.▇▇. 77aaa-77bbbb) as in effect on the date of this Indenture (except as
provided in Section 8.03 hereof).
"Tioga" means Tioga Capital Corporation.
36
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"Tioga Letter" means the letter from Tioga to the Company
regarding payment of advisory fees, dated April 2, 1998.
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary and (b) any Subsidiary of the Company which is
classified after the Issue Date as an Unrestricted Subsidiary by a resolution
adopted by the Board of Directors of the Company; provided that a Subsidiary
organized or acquired after the Issue Date may be so classified as an
Unrestricted Subsidiary only if such classification is in compliance with
Section 4.09. The Purchaser shall be given prompt notice by the Company of each
resolution adopted by the Board of Directors of the Company under this
provision, together with a copy of each such resolution adopted.
"U.S. Government Obligations" means (a) securities that are
direct obligations of the United States of America for the payment of which its
full faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"Wholly-Owned Subsidiary" of a specified Person means any
Subsidiary (or, if such specified Person is the Company, a Restricted
Subsidiary), all of the outstanding voting securities (other than, in respect of
non-Domestic Subsidiaries, directors' qualifying shares or immaterial amounts of
shares held
37
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by foreign nationals to the extent mandated by or advantageous under
applicable law) of which are owned, directly or indirectly, by such Person.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the
sections indicated as follows:
Term Defined in Section
---- ------------------
"Affiliate Transaction"................................. 4.11(a)
"Agent Members"......................................... 2.16(a)
"Bankruptcy Law"........................................ 6.01
"Business Day".......................................... 11.07
"CEDEL"................................................. 2.16(a)
"Change of Control Offer"............................... 4.18(a)
"Change of Control Payment Date"........................ 4.18(b)
"Change of Control Purchase Price"...................... 4.18(a)
"Covenant Defeasance"................................... 9.03
"Custodian"............................................. 6.01
"Euroclear"............................................. 2.16(a)
"Event of Default"...................................... 6.01
"Excess Proceeds Offer"................................. 4.10(a)
"Global Notes".......................................... 2.16(a)
"Legal Defeasance"...................................... 9.02
"Legal Holiday"......................................... 11.07
"Offer Period".......................................... 4.10(b)
"Other Notes"........................................... 2.02
"Paying Agent".......................................... 2.04
"Purchase Date"......................................... 4.10(b)
"Registrar"............................................. 2.04
"Regulation S Global Notes"............................. 2.16(a)
"Regulation S Notes".................................... 2.02
"Reinvestment Date"..................................... 4.10(a)
"Restricted Global Note"................................ 2.16(a)
"Restricted Period"..................................... 2.16(f)
"Rule 144A Notes"....................................... 2.02
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this In-
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denture. The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor on the indenture securities" means the Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings therein assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
(5) words used herein implying any gender shall apply to every gender;
and
(6) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to
any Note, such mention shall be deemed to include mention of the payment
of Additional Interest to the extent that, in such context, Additional
Interest is, was or would be payable in respect thereof.
39
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ARTICLE 2
THE NOTES
Section 2.01. Amount of Notes.
The Trustee shall authenticate Notes for original issue on the
Issue Date in the aggregate principal amount of $80,000,000, upon a written
order of the Company in the form of an Officers' Certificate of the Company.
Such written order shall specify the amount of Notes to be authenticated and the
date on which the Notes are to be authenticated.
Upon receipt of a Company Request and an Officers' Certificate
certifying that a registration statement relating to an exchange offer specified
in the Registration Rights Agreement is effective and that the conditions
precedent to a private exchange thereunder have been met, the Trustee shall
authenticate an additional series of Notes in an aggregate principal amount not
to exceed $80,000,000 for issuance in exchange for the Notes tendered for
exchange pursuant to such exchange offer registered under the Securities Act not
bearing the Private Placement Legend or pursuant to a Private Exchange. Exchange
Notes or Private Exchange Notes may have such distinctive series designations
and such changes in the form thereof as are specified in the Company Request
referred to in the preceding sentence.
Section 2.02. Form and Dating.
The Notes and the Trustee's certificate of authentication with
respect thereto shall be substantially in the form set forth in Exhibit A, which
is incorporated in and forms a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule or usage to which the
Company is subject. Any such notations, legends or endorsements shall be
furnished to the Trustee in writing. Without limiting the generality of the
foregoing, Notes offered and sold to Qualified Institutional Buyers in reliance
on Rule 144A ("Rule 144A Notes") shall bear the legend and include the form of
assignment set forth in Exhibit B, Notes offered and sold in offshore
transactions in reliance on Regulation S ("Regulation S Notes") shall bear the
legend and include the form of assignment set forth in Exhibit C and Notes
offered and sold to Institutional Accredited Investors in transactions exempt
from registration under the Securities Act not made in reliance on Rule 144A or
Regulation S ("Other Notes") shall be represented
40
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by Physical Notes bearing the Private Placement Legend. Each Note shall be dated
the date of its authentication.
The terms and provisions contained in the Notes shall
constitute, and are expressly made, a part of this Indenture and, to the extent
applicable, the Company, the Guarantor and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
agree to be bound thereby.
The Notes may be presented for registration of transfer and
exchange at the offices of the Registrar in the Borough of Manhattan, The City
of New York, State of New York.
Section 2.03. Execution and Authentication.
Two Officers shall sign, or one Officer shall sign and one
Officer for the Company and each Guarantor (each of whom shall, in each case,
have been duly authorized by all requisite corporate actions) shall attest to,
the Notes for the Company and the Guarantees for each Guarantor by manual or
facsimile signature.
If an Officer whose signature is on a Note was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Note shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Note to the Trustee
for cancellation as provided in Section 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Notes. Unless otherwise provided
in the appointment, an authenticating agent may authenticate the Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
41
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Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
Each Paying Agent is designated as an authenticating agent for purposes of this
Indenture.
The Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
Section 2.04. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Notes may be presented for registration of transfer or for exchange (the
"Registrar"), an office or agency where Notes may be presented for payment (the
"Paying Agent") and an office or agency where notices and demands to or upon the
Company, if any, in respect of the Notes and this Indenture may be served. The
Company hereby initially designate the office of State Street Bank and Trust
Company, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust Division,
as their office or agency in the Borough of Manhattan, The City of New York. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may have one or more additional Paying Agents. The term "Paying
Agent" includes any additional Paying Agent. Neither the Company nor any
Affiliate thereof may act as Paying Agent. The Company may change any Paying
Agent or Registrar without notice to any Noteholder.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to compensation in accordance with Section 7.07.
The Company initially designates the Corporate Trust Office of
the Trustee as Registrar, Paying Agent and agent for service of notices and
demands in connection with the Notes and this Indenture.
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Section 2.05. Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Noteholders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium or interest on the Notes (whether such money has been
paid to it by the Company or any other obligor on the Notes), and the Company
and the Paying Agent shall notify the Trustee of any default by the Company (or
any other obligor on the Notes) in making any such payment. Money held in trust
by the Paying Agent need not be segregated except as required by law and in no
event shall the Paying Agent be liable for any interest on any money received by
it hereunder. The Company at any time may require the 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 Event of Default specified
in Section 6.01(1) or (2), upon written request to the Paying Agent, require
such Paying Agent to pay forthwith all money so held by it to the Trustee and to
account for any funds disbursed. Upon making such payment, the Paying Agent
shall have no further liability for the money delivered to the Trustee.
Section 2.06. Noteholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Noteholders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least five 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 the Noteholders.
Section 2.07. Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to
the Registrar with a request from the Holder of such Notes to register a
transfer or to exchange them for an equal principal amount of Notes of other
authorized denominations, the Registrar shall register the transfer as
requested. Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar, duly executed by
the Holder thereof or his attorneys duly authorized in writing. To permit
registrations of transfers and exchanges, the Company shall issue and execute
and the Trustee shall authenticate new Notes (and the Guarantors shall execute
the Guarantees thereon evidencing such
43
-37-
transfer or exchange at the Registrar's request. No service charge shall be made
to the Noteholder for any registration of transfer or exchange. The Company may
require from the Noteholder payment of a sum sufficient to cover any transfer
taxes or other governmental charge that may be imposed in relation to a transfer
or exchange, but this provision shall not apply to any exchange pursuant to
Section 2.11, 3.06, 4.10, 4.18 or 8.05 (in which events the Company shall be
responsible for the payment of such taxes). The Trustee shall not be required to
exchange or register a transfer of any Note for a period of 15 days immediately
preceding the selection of Notes to be redeemed or any Note selected for
redemption.
Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of the beneficial interests in such Global
Note may be effected only through a book entry system maintained by the Holder
of such Global Note (or its agent), and that ownership of a beneficial interest
in the Global Note shall be required to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such ▇▇▇▇▇▇'s Note in violation of any provision of this Indenture
and/or applicable U.S. Federal or state securities law.
Except as expressly provided herein, neither the Trustee nor
the Registrar shall have any duty to monitor the Company's compliance with or
have any responsibility with respect to the Company's compliance with any
Federal or state securities laws.
Section 2.08. Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the
Trustee, or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note (and the Guarantors shall execute Guarantees
thereon) if the Holder of such Note furnishes to the Company and the Trustee
evidence reasonably acceptable to them of the ownership and the destruction,
loss or theft of such Note and if the requirements of Section 8-405 of the New
York Uniform Commercial Code as in effect on the date of this Indenture are met.
If required by the Trustee or the Company, an indemnity bond shall be posted,
sufficient in the judgment of both to protect the Company, the Trustee or any
Paying Agent from any loss that any of them may suffer if such Note is replaced.
The Company may charge such
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Holder for the Company's reasonable out-of-pocket expenses in replacing such
Note and the Trustee may charge the Company for the Trustee's expenses
(including, without limitation, attorneys' fees and disbursements) in replacing
such Note. Every replacement Note shall constitute an additional contractual
obligation of the Company.
Section 2.09. Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those canceled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 9.01
and 9.02, on or after the date on which the conditions set forth in Section 9.01
or 9.02 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this Section 2.09 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because an Issuer or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives written notice that the replaced Note
is held by a bona fide purchaser in whose hands such Note is a legal, valid and
binding obligation of the Company.
If the Paying Agent holds, in its capacity as such, on any
Maturity Date or on any optional redemption date, money sufficient to pay all
accrued interest and principal with respect to the Notes payable on that date
and is not prohibited from paying such money to the Holders thereof pursuant to
the terms of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
Section 2.10. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any declaration of acceleration or notice of
default or direction, waiver or consent or any amendment, modification or other
change to this Indenture, Notes owned by an Issuer or any Affiliate of an Issuer
shall be disregarded as though they were not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such declaration, notice, direction, waiver or consent or any amendment,
modification or other change to this Indenture, only Notes as to which a
Responsible Officer of the Trustee has received an Officers' Certificate stating
that such Notes are so owned shall be so dis-
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regarded. Notes so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes the pledgee's right so to act with
respect to the Notes and that the pledgee is not the Company, any other obligor
or guarantor on the Notes or any of their respective Affiliates.
Section 2.11. Temporary Notes.
Until definitive Notes are prepared and ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company consider appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
Section 2.12. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall (subject to the
record-retention requirements of the Exchange Act) destroy canceled Notes and
deliver a certificate of destruction thereof to the Company. The Company may not
reissue or resell, or issue new Notes to replace, Notes that the Company have
redeemed or paid, or that have been delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults on a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, pursuant to Section 4.01 hereof, to
the Persons who are Noteholders on a subsequent special record date, which date
shall be at least five Business Days prior to the payment date. The Company
shall fix such special record date and payment date and provide the Trustee at
least 20 days notice of the proposed amount of defaulted interest to be paid and
the special payment date and at the same time the Company shall deposit with the
Trustee the aggregate amount proposed to be paid in respect of such defaulted
interest. At least 15 days before such special
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record date, the Company shall mail to each Noteholder a notice that states the
special record date, the payment date and the amount of defaulted interest, and
interest payable on defaulted interest, if any, to be paid. The Company may make
payment of any defaulted interest in any other lawful manner not inconsistent
with the requirements (if applicable) of any securities exchange on which the
Notes may be listed and, upon such notice as may be required by such exchange,
if, after written notice given by the Company to the Trustee of the proposed
payment pursuant to this sentence, such manner of payment shall be deemed
practicable by the Trustee.
Section 2.14. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and
if so, such CUSIP number shall be included in notices of redemption or exchange
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any such CUSIP number used by the Company in
connection with the issuance of the Notes and of any change in the CUSIP number.
Section 2.15. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest
Payment Date and Maturity Date, the Company shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date or Maturity Date, as the case may be, in
a timely manner which permits the Trustee to remit payment to the Holders on
such Interest Payment Date or Maturity Date, as the case may be. The principal
and interest on Global Notes shall be payable to the Depository or its nominee,
as the case may be, as the sole registered owner and the sole holder of the
Global Notes represented thereby. The principal and interest on Physical Notes
shall be payable at the office of the Paying Agent. The Company shall deliver an
Officers' Certificate to the Trustee, at least 5 business days before any
applicable payment date, setting forth the amount of Additional Interest due per
$1,000 aggregate principal amount of Notes.
Section 2.16. Book-Entry Provisions for Global Notes.
(a) Rule 144A Notes initially shall be represented by one or
more notes in registered, global form without inter-
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est coupons (collectively, the "Restricted Global Note"). Regulation S Notes
initially shall be represented by one or more notes in registered, global form
without interest coupons (collectively, the "Regulation S Global Note," and,
together with the Restricted Global Note and any other global notes representing
Notes, the "Global Notes"). The Global Notes shall bear legends as set forth in
Exhibit D. The Global Notes initially shall (i) be registered in the name of the
Depository or the nominee of such Depository, in each case for credit to an
account of an Agent Member (or, in the case of the Regulation S Global Notes,
Agent Members of the Depository holding for Euroclear System ("Euroclear") and
Cedel Bank, S.A. ("CEDEL")), (ii) be delivered to the Trustee as custodian for
such Depository and (iii) bear legends as set forth in Exhibit B with respect to
Restricted Global Notes and Exhibit C with respect to Regulation S Global Notes.
Members of, or direct or indirect participants in, the
Depository ("Agent Members") shall have no rights under this Indenture with
respect to any Global Note held on their behalf by the Depository, or the
Trustee as its custodian, or under the Global Notes, and the Depository may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of the Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(b) Transfers of Global Notes shall be limited to transfer in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository and the provisions of Section 2.17. In addition, a Global Note
shall be exchangeable for Physical Notes if (i) the Depository (x) notifies the
Company that it is unwilling or unable to continue as depository for such Global
Note and the Company thereupon fail to appoint a successor depository or (y) has
ceased to be a clearing agency registered under the Exchange Act, (ii) the
Company, at its option, notifies the Trustee in writing that it elects to cause
the issuance of such Physical Notes or (iii) there shall have occurred and be
continuing a Default or an Event of Default with respect to the Notes. In all
cases, Physical Notes delivered in exchange for
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any Global Note or beneficial interests therein shall be registered in the
names, and issued in any approved denominations, requested by or on behalf of
the Depository (in accordance with its customary procedures).
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Company
shall execute, and the Trustee shall upon receipt of a written order from the
Company authenticate and make available for delivery, one or more Physical Notes
of like tenor and amount.
(d) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in writing in exchange for its
beneficial interest in the Global Notes, an equal aggregate principal amount of
Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered
in exchange for an interest in a Global Note pursuant to paragraph (b), (c) or
(d) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of
Section 2.17, bear the Private Placement Legend or, in the case of the
Regulation S Global Note, the legend set forth in Exhibit C, in each case,
unless the Company determines otherwise in compliance with applicable law.
(f) On or prior to the 40th day after the later of the
commencement of the offering of the Notes represented by a Regulation S Global
Note and the original issue date of such Notes (such period through and
including such 40th day, the "Restricted Period"), a beneficial interest in the
Regulation S Global Note may be held only through Euroclear or CEDEL, as
indirect participants in DTC, unless transferred to a Person who takes delivery
in the form of an interest in the corresponding Restricted Global Note, only
upon receipt by the Trustee of a written certification from the transferor to
the effect that such transfer is being made (i)(a) to a Person who the
transferor reasonably believes is a Qualified Institutional Buyer in a
transaction meeting the requirements of Rule 144A or (b) pur-
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suant to another exemption from the registration requirements under the
Securities Act which is accompanied by an opinion of counsel regarding the
availability of such exemption and (ii) in accordance with all applicable
securities laws of any state of the United States or any other jurisdiction.
(g) Beneficial interests in the Restricted Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in accordance
with Rule 903 or 904 of Regulation S or Rule 144 (if available) and that, if
such transfer occurs prior to the expiration of the Restricted Period, the
interest transferred shall be held immediately thereafter through Euroclear or
CEDEL.
(h) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such Global Note
and become an interest in such other Global Note and, accordingly, shall
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(i) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
Section 2.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors
and Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted Note
to any Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Note, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after August
13, 2000 or such other date as such Note shall be freely transferable
under Rule 144 as certified in an Officers' Certificate or (y) (1) in
the case of a transfer to an Institutional Accredited In-
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vestor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar a certificate substantially
in the form of Exhibit E hereto or (2) in the case of a transfer to a
Non-U.S. Person (including a QIB), the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
Exhibit F hereto; provided that in the case of a transfer of a Note
bearing the Private Placement Legend for a Note not bearing the Private
Placement Legend, the Registrar has received an Officers' Certificate
authorizing such transfer; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be transferred,
and (b) the Registrar shall reflect on its books and records the date and an
increase in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note transferred or
the Company shall execute and the Trustee shall authenticate and make available
for delivery one or more Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed registration of transfer of a
Note constituting a Restricted Note to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on such Holder's Note stating, or has otherwise advised
the Company and the Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on such Holder's Note stating, or
has otherwise advised the Company and the Registrar in writing, that it
is purchasing the Note for its own account or an account with respect
to which it exercises sole investment discretion and that it and any
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such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Notes to be transferred consist of Physical Notes which after transfer
are to be evidenced by an interest in the Restricted Global Note, upon
receipt by the Registrar of instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of the Restricted Global Note in an amount equal to
the principal amount of the Physical Notes to be transferred, and the
Trustee shall cancel the Physical Notes so transferred.
(c) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Notes not bearing the Private Placement
Legend, the Registrar shall deliver Notes that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of Notes
bearing the Private Placement Legend, the Registrar shall deliver only Notes
that bear the Private Placement Legend unless (i) it has received the Officers'
Certificate required by paragraph (a)(i)(x) of this Section 2.17, (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the
Company to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act or (iii) such Note has been sold pursuant to an effective
registration statement under the Securities Act and the Registrar has received
an Officers' Certificate from the Company to such effect.
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it shall transfer such Note only as provided in this
Indenture.
The Registrar shall retain for a period of two years copies of
all letters, notices and other written communications received pursuant to
Section 2.16 or this Section 2.17. The
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Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable notice to the Registrar.
Section 2.18. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to paragraph 5
of the Notes, at least 45 days prior to the Redemption Date or during such other
period as the Trustee may agree to (which agreement shall not unreasonably be
withheld) the Company shall notify the Trustee in writing of the Redemption
Date, the principal amount of Notes to be redeemed and the redemption price, and
deliver to the Trustee an Officers' Certificate stating that such redemption
shall comply with the conditions contained in paragraph 6 of the Notes, as
appropriate.
Section 3.02. Selection by Trustee of Notes to Be Redeemed.
In the event that fewer than all of the Notes are to be
redeemed, the Trustee shall select the Notes to be redeemed, if the Notes are
listed on a national securities exchange, in accordance with the rules of such
exchange or, if the Notes are not so listed, either on a pro rata basis or by
lot, or such other method as it shall deem fair and equitable; provided,
however, that the Company shall have previously notified the Trustee in writing
of any such exchange on which the Notes are listed, and provided, further, that
if a partial redemption is made with the proceeds of a Public Equity Offering,
selection of the Notes or portion thereof for redemption shall be made by the
Trustee on a pro rata basis, unless such a method is prohibited. The Trustee
shall promptly notify the Company of the Notes selected for redemption and, in
the case of any Notes selected for partial redemption, the principal amount
thereof to be redeemed. The Trustee may select for redemption portions of
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the principal of the Notes that have denominations larger than $1,000. Notes and
portions thereof the Trustee selects shall be redeemed in amounts of $1,000 or
whole multiples of $1,000. For all purposes of this Indenture unless the context
otherwise requires, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days, and no more than 60 days, before a
Redemption Date, the Company shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Notes to be redeemed at his or
her last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.03 hereof.
The notice shall identify the Notes to be redeemed (including
the CUSIP numbers thereof) and shall state:
(1) the Redemption Date and the amount of premium and
accrued interest to be paid;
(2) the redemption price and the amount of premium and
accrued interest to be paid;
(3) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date;
(7) the provision of paragraph 6 of the Notes pursuant to
which the Notes called for redemption are being redeemed; and
(8) the aggregate principal amount of Notes that are being
redeemed.
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At the Company's written request made at least five Business
Days prior to the date on which notice is to be given, the Trustee shall give
the notice of redemption in the Company's name and at the Company's sole
expense.
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the redemption price, including any premium, plus interest accrued
to the Redemption Date. Upon surrender to the Paying Agent, such Notes shall be
paid at the redemption price, including any premium, plus interest accrued to
the Redemption Date, provided that if the Redemption Date is after a regular
record date and on or prior to the Interest Payment Date, the accrued interest
shall be payable to the Holder of the redeemed Notes registered on the relevant
record date, and provided, further, that if a Redemption Date is a Legal
Holiday, payment shall be made on the next succeeding Business Day and no
interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
Section 3.05. Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each
Redemption Date, the Company shall deposit with the Paying Agent in immediately
available funds money sufficient to pay the redemption price of and accrued
interest on all Notes to be redeemed on that date other than Notes or portions
thereof called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay
the redemption price of and accrued interest on Notes called for redemption
shall have been made available in accordance with the preceding paragraph, the
Notes called for redemption shall cease to accrue interest and the only right of
the Holders of such Notes shall be to receive payment of the redemption price of
and, subject to the first proviso in Section 3.04, accrued and unpaid interest
on such Notes to the Redemption Date. If any Note surrendered for redemption
shall not be so paid, interest shall be paid, from the Redemption Date until
such redemption payment is made, on the unpaid principal of the Note and any
interest not paid on such unpaid principal, in each case, at the rate and in the
manner provided in the Notes.
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Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee
shall authenticate for a Holder a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of and interest (including
all Additional Interest as provided in the Registration Rights Agreement) on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay such installment.
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
Section 4.02. SEC Reports.
(a) The Company and the Guarantors shall file with the SEC all
information, documents and reports to be filed with the SEC pursuant to Section
13 or 15(d) of the Exchange Act, in the case of the Company, whether or not the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, and in the case of the Guarantors, only to the extent subject to
such filing requirements; provided, however, that the Company shall not be
required to make any such filings prior to the date on which the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 1998
would have been required to be filed, if, at the time such filings would have
been required to be made with the SEC, either (i) the Company shall have
provided to each Holder of the Notes the information that would have been
required to be filed or (ii) the Exchange Registration Statement (as such term
is defined in the Registration Rights Agreement) has been filed with the SEC but
has not yet been declared effective and copies of the Ex-
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change Registration Statement and any amendments thereto (to the extent such
Registration Statement and/or amendments contain additional information not
disclosed in the Offering Memorandum that would have been the subject of a
filing required to be made under Section 13 or 15(d) of the Exchange Act) have
been provided to each Holder of the Notes, provided that any exhibits to the
Exchange Registration Statement (or any amendments thereto) need not be
delivered to any Holder of the Notes, but sufficient copies thereof shall be
furnished to the Trustee as reasonably requested to permit the Trustee to
deliver any such exhibits to any Holder of the Notes upon request. The Company
and the Guarantors (at their own expense) shall file with the Trustee within 15
days after they file them with the SEC, 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 SEC may by rules and regulations prescribe) which the
Company and the Guarantors file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. Upon qualification of this Indenture under the TIA, the
Company shall also comply with the provisions of TIA ss. 314(a). Delivery of
such reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
their covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
(b) At the Company's expense, regardless of whether the
Company is required to furnish such reports and other information referred to in
paragraph (a) above to their equityholders pursuant to the Exchange Act, the
Company shall cause such reports and other information to be mailed to the
Holders at their addresses appearing in the register of Notes maintained by the
Registrar within 15 days after they file them with the SEC.
(c) The Company shall, upon request, provide to any Holder of
Notes or any prospective transferee of any such Holder any information
concerning the Company (including financial statements) necessary in order to
permit such Holder to sell or transfer Notes in compliance with Rule 144A under
the Securities Act; provided, however, that the Company shall not be required to
furnish such information in connection with any request made on or after the
date which is two years from the later of (i) the date such Note (or any
predecessor Note) was acquired from the Company or (ii) the date such Note (or
any predecessor Note) was last acquired from an "affiliate" of the
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Company within the meaning of Rule 144 under the Securities Act.
Section 4.03. Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Guarantors covenant (to the extent
that it may lawfully do so) that it shall not at any time insist upon, or plead
(as a defense or otherwise) or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension or any usury law or other law
which would prohibit or forgive each of the Company or the Guarantors from
paying all or any portion of the principal of, premium, if any, and/or interest
on the Notes as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that they may lawfully do so) each of the Company
and the Guarantors hereby expressly waive all benefit or advantage of any such
law, and covenant that they will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year and on or before 45 days after the end of the
first, second and third quarters of each fiscal year, an Officers' Certificate
stating that a review of the activities of the Company and its Subsidiaries
during such fiscal year or fiscal quarter, as the case may be, has been made
under the supervision of the signing Officers with a view to determining whether
the Company has kept, observed, performed and fulfilled their obligations under
this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and are not in default in the performance or observance of any of the
terms, provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which
he or she may have knowledge and what action they are taking or propose to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the
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event and what action the Company is taking or proposes to take with respect
thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.02 above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention which would lead them to believe that the
Company has violated any provisions of this Article 4 or Article 5 of this
Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly for any failure to obtain knowledge of any such
violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
(d) The Company's fiscal year currently ends on March 31. The
Company shall provide notice to the Trustee of any change in fiscal year.
Section 4.05. Taxes.
The Company shall, and shall cause each of its Subsidiaries
to, pay prior to delinquency all material taxes, assessments, and governmental
levies except as contested in good faith and by appropriate proceedings.
Section 4.06. Limitation on Additional Indebtedness.
The Company shall not, and shall not permit any Restricted
Group Member of the Company to, directly or indirectly, incur any Indebtedness
(including Acquired Indebtedness and including Disqualified Capital Stock);
provided that the Company may incur Indebtedness (including Acquired
Indebtedness or Disqualified Capital Stock) if (a) after giving effect to the
incurrence of such Indebtedness and the receipt and application of the proceeds
thereof, the Company's Consolidated Fixed Charge Coverage Ratio is at least 2.0
to 1 if the Indebtedness is incurred prior to December 31, 1999 and 2.25 to 1 if
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the Indebtedness is incurred thereafter and (b) no Default or Event of Default
shall have occurred and be continuing at the time or as a consequence of the
incurrence of such Indebtedness.
Notwithstanding the foregoing, (a) the Company and its
Restricted Group Members may incur Permitted Indebtedness; (b) nothing in this
Section 4.06 shall prohibit or restrict the ability of Ranger to incur
Indebtedness directly except to the extent such Indebtedness is guaranteed by
the Company or any Restricted Group Member; and (c) the issuance of Indebtedness
representing only PIK Interest shall not constitute an incurrence of
Indebtedness for purposes of this covenant.
The Company shall not, and shall not permit any of its
Restricted Group Members to, incur any Indebtedness which by its terms (or by
the terms of any agreement governing such Indebtedness) is subordinated in right
of payment to any other Indebtedness of the Company or such Restricted Group
Member unless such Indebtedness is also by its terms (or by the terms of any
agreement governing such Indebtedness) made expressly subordinate in right of
payment to the Notes pursuant to subordination provisions that are substantively
identical to the subordination provisions of such Indebtedness (or such
agreement) that are most favorable to the holders of any other Indebtedness of
the Company or such Restricted Group Member, as the case may be.
Any Indebtedness of an Unrestricted Subsidiary or Permitted
Joint Venture that is not incurred by such Unrestricted Subsidiary or Permitted
Joint Venture on a basis that is entirely non-recourse to the Company and its
Restricted Group Members shall, for purposes of this covenant and all
determinations, hereunder with respect to both the original incurrence of such
Indebtedness and any subsequent determinations, hereunder relating to any other
Indebtedness, be deemed Indebtedness of a Restricted Group Member to the extent
of such recourse.
Section 4.07. Limitation on Preferred Stock of Restricted Group
Members.
The Company shall not permit (a) any Restricted Subsidiary to
issue any Preferred Stock (other than to the Company or one or more of its
Domestic Wholly-Owned Subsidiaries) or permit any Person (other than the Company
or one or more of its Domestic Wholly-Owned Subsidiaries) to hold any such
Preferred Stock or (b) any Restricted Joint Venture to issue any Pre-
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ferred Stock (other than to the partners, owners or other equity holders in such
Restricted Joint Venture) or permit any Person (other than the partners, owners
or other equity holders in such Restricted Joint Venture) to hold any such
Preferred Stock.
Section 4.08. Limitation on Capital Stock of Restricted
Group Members.
The Company shall not (i) sell, pledge, hypothecate or
otherwise convey or dispose of any of its Capital Stock of a Restricted Group
Member (other than under the Senior Credit Facility or one or more of the credit
facilities permitted to be secured pursuant to clause (xi) of the definition of
"Permitted Liens") or (ii) permit any of its Restricted Group Members to issue
any Capital Stock, other than to the Company or a Wholly-Owned Subsidiary of the
Company or, in the case of a Restricted Joint Venture to its partners, owners or
other equity holders. The foregoing restrictions shall not apply to (a) an Asset
Sale made in compliance with Section 4.10, (b) the issuance to or ownership by
directors of directors' qualifying shares or the ownership by foreign nationals
of Capital Stock of any Restricted Group Member to the extent mandated by
applicable law, (c) the issuance of Capital Stock of a Subsidiary that becomes a
Restricted Joint Venture or Permitted Joint Venture as a result thereof, (d) the
issuance of Preferred Stock in accordance with Section 4.07 or (e) the issuance
of Capital Stock by a Restricted Joint Venture so long as the proceeds thereof
are either distributed proportionately to the other partners, owners or other
equity holders in such Restricted Joint Venture, used to repurchase the entire
equity interests of one or more other partners, owners or other equity holders
or applied in accordance with Section 4.10(iii)(B).
Section 4.09. Limitation on Restricted Payments.
The Company shall not make, and shall not permit any of its
Restricted Group Members to, directly or indirectly, make, any Restricted
Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(b) immediately after giving pro forma effect to such
Restricted Payment, the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.06;
and
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(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of (1) 50% of the cumulative Consolidated Net
Income of the Company subsequent to the Issue Date (or minus 100% of any
cumulative deficit in Consolidated Net Income during such period) plus (2)
100% of the aggregate Net Proceeds and the fair market value of securities
or other property received by the Company from the issue or sale, after
the Issue Date, of Capital Stock (other than Disqualified Capital Stock or
Capital Stock of the Company issued to any Subsidiary of the Company or a
Restricted Joint Venture) of the Company or any Indebtedness or other
securities of the Company convertible into or exercisable or exchangeable
for Capital Stock (other than Disqualified Capital Stock) of the Company
which has been so converted or exercised or exchanged, as the case may be,
plus (3) without duplication of any amounts included in clauses (1) and
(2) above, 100% of the aggregate net proceeds of any equity contribution
received by the Company from a holder of the Company's Capital Stock,
excluding, in the case of clauses (2) and (3) above, any Net Proceeds from
a Public Offering to the extent used to redeem the Notes plus (4)
$2,500,000. For purposes of determining under this clause (c) the amount
expended for Restricted Payments, cash distributed shall be valued at the
face amount thereof and property other than cash shall be valued at its
fair market value determined, in good faith, by the Board of Directors of
the Company.
The provisions of this Section 4.09 shall not prohibit: (i) the payment
of any distribution within 60 days after the date of declaration thereof, if at
such date of declaration such payment would comply with the provisions of this
Agreement; (ii) the repurchase redemption or other acquisition or retirement of
any shares of Capital Stock of the Company or Indebtedness of the Company
subordinated to the Notes, by conversion into, or by or in exchange for, shares
of Capital Stock (other than Disqualified Capital Stock), or out of, the Net
Proceeds of the substantially concurrent sale (other than to a Subsidiary of
the Company or a Restricted Joint Venture) of other shares of Capital Stock of
the Company (other than Disqualified Capital Stock); (iii) the redemption or
retirement of Indebtedness of the Company subordinated to the Notes in exchange
for, by conversion into, or out of the Net Proceeds of, a substantially
concurrent sale or incurrence of Indebtedness (other than any Indebtedness owed
to a Subsidiary or a Restricted Joint Venture) of the Company that (A) is
contractu-
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ally subordinated in right of payment to the Notes to at least the
same extent as the subordinated Indebtedness being redeemed or retired, (B) is
scheduled to mature either (I) no earlier than the Indebtedness being redeemed
or retired, or (II) after the maturity date of the Notes, (C) the portion, if
any, of which Indebtedness that is scheduled to mature on or prior to the
maturity date of the Notes has a weighted average life to maturity at the time
such Indebtedness is incurred that is equal to or greater than the weighted
average life to maturity of the portion of the Indebtedness being redeemed or
retired that is scheduled to mature on or prior to the maturity date of the
Notes, and (D) is in an aggregate principal amount that is equal to or less
than the sum of (x) the aggregate principal then outstanding under the
Indebtedness being redeemed or retired, (y) the amount of accrued and unpaid
interest, if any, and premiums owed, if any, not in excess of preexisting
prepayment provisions on such Indebtedness being redeemed or retired and (z)
the amount of customary fees, expenses and costs related to the incurrence of
such Indebtedness; (iv) the retirement of any shares of Disqualified Capital
Stock of the Company by conversion into, or by exchange for, shares of
Disqualified Capital Stock of the Company, or out of the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company or a
Restricted Joint Venture) of other shares of Disqualified Capital Stock of the
Company that (A) is subordinated to the Notes to at least the same extent as
the Disqualified Capital Stock being retired, (B) is scheduled to be
mandatorily redeemed, if at all, either (I) no earlier than the Disqualified
Capital Stock being retired, or (II) after the maturity date of the Notes, (C)
the portion, if any, of which Disqualified Capital Stock that is scheduled to
be mandatorily redeemed on or prior to the maturity date of the Notes has a
weighted average life to mandatory redemption at the time such Disqualified
Capital Stock is issued that is equal to or greater than the weighted average
life to mandatory redemption of the portion of the Disqualified Capital Stock
being retired that is scheduled to be mandatorily redeemed on or prior to the
maturity date of the Notes, and has an aggregate liquidation preference that is
equal to or less than the sum of (a) the aggregate liquidation preference then
outstanding of the Disqualified Capital Stock being retired, (b) the amount of
accrued and unpaid dividends, if any, and premiums owed, if any, not in excess
of preexisting redemption provisions on such Disqualified Capital Stock being
retired and (c) the amount of customary fees, expenses and costs related to the
issuance of such Disqualified Capital Stock; (v) payments to the Initial
Purchaser, Tioga or their respective Affiliates representing customary
investment banking fees for services rendered; (vi)
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payments to ▇▇▇▇▇▇▇ representing insurance premiums not in excess of prevailing
market rates; (vii) payments to Tioga of a chairman's fee pursuant to the
investment agreement in effect on the Issue Date; (viii) the payment of
distributions to Ranger solely for the purpose of enabling Ranger to pay its
reasonable, ordinary course operating and administrative expenses and taxes,
the amount of which in any fiscal year shall not exceed $200,000; and (ix) so
long as no Default or Event of Default shall have occurred and be continuing at
the time of or immediately after giving effect to such payment, the payment of
distributions to Ranger for the sole purpose of purchasing, redeeming or
otherwise acquiring for value shares of Capital Stock of Ranger (other than
Disqualified Capital Stock) or options on such shares held by Ranger's, the
Company's or its Subsidiaries' officers or employees or former officers or
employees (or their estates or beneficiaries under their estates) upon the
death, disability, retirement or termination of employment of such current or
former officers or employees pursuant to the terms of an employee benefit plan
or any other agreement pursuant to which such shares of Capital Stock or
options were issued or pursuant to a severance, buy-sell or right of first
refusal agreement with such current or former officer or employee; provided
that the aggregate cash consideration paid, or distributions or payments made,
pursuant to this clause (ix) shall not exceed $250,000 in any fiscal year;
provided, further, that the Company may carry over and make for one fiscal
year, in addition to the amounts permitted for such fiscal year, the amount of
such distributions permitted to have been made, but not made, in the
immediately preceding fiscal year; provided, further, that such distributions
in any fiscal year of the Company shall be deemed made first from the
aforementioned permitted amount for such fiscal year and then from any amount
carried over into such fiscal year in accordance with this proviso.
Notwithstanding the foregoing, the amount of any payments made in reliance on
clauses (i) and (ix) above shall reduce the amount otherwise available for
Restricted Payments pursuant to subparagraphs (a)-(c) above.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Purchaser on behalf of the Holders an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by this Section 4.09 were
computed, which calculations may be based upon the Company's latest available
financial statements, and, to the extent that the absence of a Default or an
Event of Default is a condition to the making of such Restricted Payment, that
no Default or Event of Default exists and is continuing and no Default or Event
of
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Default shall occur immediately after giving effect to any Restricted
Payments.
Section 4.10. Limitation on Certain Asset Sales.
(a) The Company shall not, and shall not permit any of its Restricted
Group Members to, consummate an Asset Sale unless (i) the Company or such
Restricted Group Member, as the case may be, receives consideration at the time
of such sale or other disposition at least equal to the fair market value
thereof (as determined in good faith by the Board of Directors of the Company,
and evidenced by a board resolution); (ii) not less than 75% of the
consideration received by the Company or its Subsidiaries, as the case may be,
is in the form of cash or Temporary Cash Investments; and (iii) the Asset Sale
Proceeds received by the Company or such Restricted Group Member are applied
(A) first, to the extent the assets that are the subject of such Asset Sale
constitute collateral securing only the Senior Credit Facility or Purchase
Money Indebtedness and the Company is required to prepay, repay or purchase
debt or to reduce an unused commitment to lend under the Senior Credit Facility
or such Purchase Money Indebtedness, as the case may be, within 180 days
following the receipt of the Asset Sale Proceeds from any Asset Sale, but only
to the extent that any such repayment shall result in a permanent reduction of
the commitments thereunder in an amount equal to the principal amount so
repaid; (B) second, to the extent the Company elects, to an investment in
assets used or useful in businesses similar or ancillary to the business of the
Company or such Restricted Group Member as conducted at the time of such Asset
Sale, provided that such investment occurs on or prior to the 365th day
following receipt of such Asset Sale Proceeds (the "Reinvestment Date"); and
(C) third, if, on the Reinvestment Date with respect to any Asset Sale, the
Available Asset Sale Proceeds exceed $5,000,000, the Company shall apply an
amount equal to such Available Asset Sale Proceeds to an offer to repurchase
the Notes, at a purchase price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of repurchase (an
"Excess Proceeds Offer").
(b) If the Company is required to make an Excess Proceeds Offer, the
Company shall mail, within 30 days following the Reinvestment Date, a notice to
the Holders stating, among other things: (1) that such Holders have the right
to require the Company to apply the Available Asset Sale Proceeds to repurchase
such Notes at a purchase price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase; (2)
the purchase date
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(the "Purchase Date"), which shall be no earlier than 30 days and not later
than 60 days from the date such notice is mailed; (3) the instructions,
determined by the Company, that each Holder must follow in order to have such
Notes repurchased; and (4) the calculations used in determining the amount of
Available Asset Sale Proceeds to be applied to the repurchase of such Notes.
The Excess Proceeds Offer shall remain open for a period of 20 business days
following its commencement (the "Offer Period"). The notice, which shall govern
the terms of the Excess Proceeds Offer, shall state:
(1) that the Excess Proceeds Offer is being made pursuant to this
covenant and the length of time the Excess Proceeds Offer shall remain
open;
(2) the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(4) that any Note accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrue interest on and after the Purchase
Date and the payment of the purchase price to the Holder thereof;
(5) that Holders electing to have a Note purchased pursuant to any
Excess Proceeds Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Company, a depositary, if appointed by the Company,
or a paying agent at the address specified in the notice prior to the
close of business on the business day preceding the Purchase Date;
(6) that Holders shall be entitled to withdraw their election if the
Company, depositary or paying agent, as the case may be, receives, not
later than the expiration of the Offer Period, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Note the Holder delivered for purchase and a statement that such ▇▇▇▇▇▇ is
withdrawing its election to have the Note purchased;
(7) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Available Asset Sale Proceeds the Company shall select
the Notes to be purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Company so that only Notes in
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denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(8) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered.
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, Notes
or portions thereof tendered pursuant to the Excess Proceeds Offer, and shall
promptly (but in any case not later than five days after the Purchase Date)
mail or deliver to each tendering Holder an amount equal to the purchase price
of the Note tendered by such Holder and accepted by the Company for purchase,
and the Company shall promptly issue a new Note and the Guarantors shall
endorse the guarantee thereon and the Company shall mail or make available for
delivery such new Note to such Holder equal in principal amount to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Excess Proceeds Offer on the
Purchase Date by sending a press release to the Dow ▇▇▇▇▇ News Service or
similar business news service in the United States. If an Excess Proceeds Offer
is not fully subscribed, the Company may retain that portion of the Available
Asset Sale Proceeds not required to repurchase Notes and use such portion for
general corporate purposes, and such retained portion shall not be considered
in the calculation of "Available Asset Sale Proceeds" with respect to any
subsequent offer to purchase Notes.
In the event of the transfer of substantially all of the property and
assets of the Company and its Restricted Group Members as an entirety to a
Person in a transaction permitted by Section 5.01, the successor Person shall
be deemed to have sold the properties and assets of the Company and its
Restricted Group Members not so transferred for purposes of this covenant and
shall comply with the provision of this covenant with respect to such deemed
sale as if it were an Asset Sale.
Section 4.11. Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its Restricted
Group Members to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate or holder of 10% or more of the Company's
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Common Stock (an "Affiliate Transaction") or extend, renew, waive or otherwise
modify the terms of any Affiliate Transaction entered into prior to the date of
this Indenture if such extension, renewal, waiver or other modification is more
disadvantageous to the Holders in any material respect than the original
agreement as in effect on the date of this Indenture unless (i) such Affiliate
Transaction is between or among the Company and/or its Wholly-Owned
Subsidiaries; or (ii) the terms of such Affiliate Transaction are at least as
favorable as the terms which could be obtained by the Company or such
Restricted Group Member, as the case may be, in a comparable transaction made
on an arm's-length basis between unaffiliated parties. In any Affiliate
Transaction involving an amount or having a value in excess of $1,000,000 which
is not permitted under clause (i) above, the Company shall obtain a resolution
of the Board of Directors certifying that such Affiliate Transaction complies
with clause (ii) above. In any Affiliate Transaction with a value in excess of
$5,000,000 which is not permitted under clause (i) above the Company shall
obtain a written opinion as to the fairness of such a transaction from an
independent investment banking firm.
(b) The limitations set forth in this Section 4.11 shall not apply to
(i) any Restricted Payment that is not prohibited by Section 4.09, (ii) any
transaction pursuant to an agreement, arrangement or understanding existing on
the date of this Indenture, (iii) any transaction, approved by the Board of
Directors of the Company, with an officer or director of the Company or of any
Subsidiary in his or her capacity as officer or director entered into in the
ordinary course of business or (iv) transactions permitted by Section 5.01.
Section 4.12. Limitations on Liens.
The Company shall not, and shall not permit any of its Restricted
Group Members to, create, incur or otherwise cause or suffer to exist or become
effective any Liens of any kind (other than Permitted Liens) upon any property
or asset of the Company or any Restricted Group Member or any shares of stock
or debt of any Restricted Group Member which owns property or assets, now owned
or hereafter acquired, unless (i) if such Lien secures Indebtedness which is
pari passu with the Notes, then the Notes are secured on an equal and ratable
basis with the obligations so secured until such time as such obligation is no
longer secured by a Lien or (ii) if such Lien secures Indebtedness which is
subordinated to the Notes, any such Lien is subordinated to the Lien granted to
the Holders of the
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Notes to the same extent as such subordinated Indebtedness is subordinated to
the Notes.
Section 4.13. Limitations on Investments.
The Company shall not, and shall not permit any of its Restricted
Group Members to, make any Investment other than (i) a Permitted Investment or
(ii) an Investment that is made as a Restricted Payment in compliance with
Section 4.09, after the Issue Date.
Section 4.14. Limitation on Creation of Certain Subsidiaries.
The Company shall not create or acquire, nor permit any of its
Restricted Group Members to create or acquire, any Domestic Restricted
Subsidiary unless such Domestic Restricted Subsidiary has executed a guarantee
in the form set forth in this Indenture, pursuant to which such Domestic
Restricted Subsidiary shall become a Guarantor. As of the Issue Date, the
Company has no Domestic Restricted Subsidiaries, other than the Guarantors.
Section 4.15. Limitation on Sale and Lease-Back Transactions.
The Company shall not, and shall not permit any Restricted Group
Member to, enter into any Sale and Lease-Back Transaction unless (i) the
consideration received in such Sale and Lease-Back Transaction is at least
equal to the fair market value of the property sold, as determined, in good
faith, by the Board of Directors of the Company and evidenced by a board
resolution, (ii) the Company could incur the Attributable Indebtedness in
respect of such Sale and Lease-Back Transaction in compliance with Section 4.08
and (iii) such Sale and Lease-Back Transaction is permitted by, and the
proceeds thereof are applied in compliance with Section 4.10.
Section 4.16. Payments for Consent.
Neither the Company nor any of its Restricted Group Members shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid or agreed to be paid to all Holders of the Notes which so consent,
waive or agree to amend in the time
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frame set forth in solicitation documents relating to such consent, waiver or
agreement.
Section 4.17. Legal Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
legal existence, and the corporate, partnership or other existence of each
Restricted Group Member, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Group Member and the rights (charter and statutory), licenses and franchises of
the Company and its Restricted Group Member; provided, however, that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Restricted Group
Member if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Group Member, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.
Section 4.18. Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall
make an offer to purchase (the "Change of Control Offer") each Holder's
outstanding Notes at a purchase price (the "Change of Control Purchase Price")
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the Change of Control Payment Date (as defined below) in accordance
with the procedures set forth below.
(b) Within 30 days of the occurrence of a Change of Control, the
Company shall (i) cause a notice of the Change of Control Offer to be sent at
least once to the Dow ▇▇▇▇▇ News Service or similar business news service in
the United States and (ii) send by first-class mail, postage prepaid, to the
Trustee and to each holder of the Notes, at the address appearing in the
register maintained by the registrar of the Notes, a notice stating:
(i) that a Change of Control Offer is being made and that all
Notes validly tendered prior to the expiration date stated in such
notice shall be accepted for payment;
(ii) the purchase date, which shall be no earlier than 20
business days from the date such notice is mailed (the "Change of
Control Payment Date"), and the Purchase
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Price, which shall be 101% of outstanding principal together
with accrued interest to the Offer Payment Date;
(iii) that any Note not timely tendered in accordance with such
notice shall remain outstanding and shall continue to accrue
interest;
(iv) that any Note accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the Change of
Control Payment Date unless the Company shall default in the payment
of the repurchase price of the Notes;
(v) that if the Holders elect to have a Note purchased pursuant
to the Change of Control Offer they shall be required to surrender
the Note, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Note completed, to the Company prior to 5:00
p.m. New York time on the Change of Control Payment Date;
(vi) that the Holders shall be entitled to withdraw their
election if the Company receives, not later than 5:00 p.m. New York
time on the business day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter setting
forth the principal amount of Notes such Holders delivered for
purchase, and a statement that such Holders are withdrawing their
election to have such Note purchased; and
(vii) that if Notes are purchased only in part a new Note of
the same type shall be issued in principal amount equal to the
unpurchased portion of the Notes surrendered.
On or before the Change of Control Payment Date, the Company shall (x)
accept for payment Notes or portions thereof which are to be purchased in
accordance with the above, and (y) deposit at the payment office established by
the Company cash in U.S. dollars sufficient to pay the purchase price of all
Notes to be purchased.
(c) (i) If the Company or any Restricted Group Member thereof has
issued any outstanding (A) Indebtedness that is subordinated in right of
payment to the Notes or (B) Preferred Stock, and the Company or such Restricted
Group Member is required to make a change of control offer or to make a
distribution with respect to such subordinated Indebtedness or Preferred Stock
in the event of a change of control, the Company shall not consummate any such
offer or distribution with re-
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spect to such subordinated Indebtedness or Preferred Stock until such time
as the Company shall have paid the Change of Control Purchase Price in full to
the Holders of Notes that have accepted the Company's Change of Control Offer
and shall otherwise have consummated the Change of Control Offer made to
Holders of the Notes and (ii) the Company shall not issue Indebtedness that is
subordinated in right of payment to the Notes or Preferred Stock with change of
control provisions requiring the payment of such Indebtedness or Preferred
Stock prior to the payment of the Notes in the event of a Change in Control.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Notes pursuant to an offer hereunder. To the extent the provisions of any
securities laws or regulations conflict with the provisions under this Section
4.18, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.18 by virtue thereof.
Section 4.19. Maintenance of Office or Agency.
The Company shall 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 this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee as set forth in Section
11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. The
Company shall give prompt written notice to the Trustee of such designation or
rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Corporate Trust Office of
the Trustee as such office of the Company.
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Section 4.20. Maintenance of Properties; Insurance; Books and Records;
Compliance with Law.
(a) The Company shall, and shall cause each of its Restricted Group
Members to, at all times cause all properties used or useful in the conduct of
their business to be maintained and kept in good condition, repair and working
order (reasonable wear and tear excepted) and supplied with all necessary
equipment, and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereto.
(b) The Company shall, and shall cause each of its Restricted Group
Members to, maintain insurance (which may include self-insurance) in such
amounts and covering such risks as are usually and customarily carried with
respect to similar facilities according to their respective locations.
(c) The Company shall, and shall cause each of its Subsidiaries and
Restricted Joint Ventures to, keep proper books of record and account, in which
full and correct entries shall be made of all financial transactions and the
assets and business of the Company and each Subsidiary and Restricted Joint
Ventures, in accordance with GAAP consistently applied to the Company and its
Subsidiaries and Restricted Joint Ventures taken as a whole.
(d) The Company shall and shall cause each of its Subsidiaries and
Restricted Joint Ventures to comply with all statutes, laws, ordinances or
government rules and regulations to which they are subject, non-compliance with
which would materially adversely affect the business, earnings, assets or
financial condition of the Company and its Subsidiaries taken as a whole.
Section 4.21. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Group Members.
The Company shall not, and shall not permit any of its Restricted
Group Members to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Group Member to (a)(i) pay dividends or make any other distributions
to the Company or any Restricted Group Member (A) on its Capital Stock or (B)
with respect to any other interest or participation in, or measured by, its
profits or (ii) repay any Indebtedness or any other obligation owed to the
Company or any
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Restricted Group Member, (b) make loans or advances or capital contributions to
the Company or any of its Restricted Group Members or (c) transfer any of its
properties or assets to the Company or any of its Restricted Group Members,
except for such encumbrances or restrictions existing under or by reason of (i)
encumbrances or restrictions existing on the date of this Indenture to the
extent and in the manner such encumbrances and restrictions are in effect on
the date hereof (including without limitation pursuant to the Senior Credit
Facility), (ii) this Indenture, the Notes and the Guarantees, (iii) applicable
law, (iv) any instrument governing Acquired Indebtedness, which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person
(including any Subsidiary of the Person), so acquired, (v) customary
non-assignment provisions in leases or other agreements entered in the ordinary
course of business and consistent with past practices, (vi) Refinancing
Indebtedness; provided that such payment restrictions are no more restrictive
than those contained in the agreements governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded, (vii) customary
restrictions in security agreements or mortgages securing Indebtedness of the
Company or a Restricted Group Member to the extent such restrictions restrict
the transfer of the property subject to such security agreements and mortgages
or (viii) customary restrictions with respect to a Restricted Group Member
pursuant to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock or assets of such Restricted
Group Member.
Section 4.22. Further Assurance to the Trustee.
The Company shall, upon the reasonable request of the Trustee, execute
and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the provisions of
this Indenture.
Section 4.23. Limitation on Conduct of Business.
The Company and its Restricted Group Members shall not engage in any
business other than the business of providing aviation services or aerospace
support.
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ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets.
(a) The Company, nor shall not permit any Guarantor to, consolidate
with, merge with or into, or transfer all or substantially all of its assets
(as an entirety or substantially as an entirety in one transaction or a series
of related transactions) to, any Person unless: (i) the Company or such
Guarantor, as the case may be, shall be the continuing Person, or the Person
(if other than the Company or such Guarantor) formed by such consolidation or
into which the Company or such Guarantor, as the case may be, is merged or to
which the properties and assets of the Company or such Guarantor, as the case
may be, are transferred shall be a corporation (or in the case of the Company,
a corporation or a limited partnership) organized and existing under the laws
of the United States or any State thereof or the District of Columbia and shall
expressly assume, in writing by a supplemental indenture, executed and
delivered to the Trustee, in form and substance satisfactory to the Trustee,
all of the obligations of the Company or such Guarantor, as the case may be,
under the Notes and this Indenture, and the obligations under this Indenture
shall remain in full force and effect; provided that at any time the Company or
its successor is a limited partnership there shall be a co-issuer of the Notes
that is a corporation; (ii) immediately before and immediately after giving
effect to such transaction, no Default or Event of Default shall have occurred
and be continuing; (iii) immediately after giving effect to such transaction or
series of transactions on a pro forma basis the Consolidated Net Worth of the
Company or the surviving entity as the case may be is at least equal to the
Consolidated Net Worth of the Company immediately before such transaction or
series of transactions; and (iv) immediately after giving effect to such
transaction on a pro forma basis the Company or such Person could incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.06 hereof.
(b) In connection with any consolidation, merger or transfer of
assets contemplated by this Section 5.01, the Company shall deliver, or cause
to be delivered, to the Holders, in form and substance reasonably satisfactory
to the Trustee, an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and the supple-
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mental indenture in respect thereto comply with this Section 5.01 and that all
conditions precedent herein provided for relating to such transaction or
transactions have been complied with.
Section 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company or any Guarantor in accordance
with Section 5.01 above, the successor corporation formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or such Guarantor under this Indenture with the same effect as if
such successor corporation had been named as the Company or such Guarantor
herein, and thereafter the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if
(1) there is a default in the payment of any principal of, or
premium, if any, on the Notes when the same becomes due and payable
whether at maturity, upon acceleration, redemption or otherwise;
(2) there is a default in the payment of any interest on any
Note when the same becomes due and payable and the Default continues
for a period of 30 days;
(3) there is a default in the observance or performance of the
covenants set forth in Section 4.06, Section 4.09, Section 4.10 or
Section 4.18;
(4) the Company or any Guarantor defaults in the observance or
performance of any other covenant in the Notes or this Indenture for
60 days after written notice from the Trustee or the Holders of not
less than 25% in the aggregate principal amount of the Notes then
outstanding;
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(5) there is a default in the payment at final maturity of
principal in an aggregate amount of $5,000,000 or more with respect
to any Indebtedness of the Company or any Restricted Group Member, or
there is an acceleration of any such Indebtedness aggregating
$5,000,000 or more which default shall not be cured, waived or
postponed pursuant to an agreement with the holders of such
Indebtedness within 30 days after written notice by the Trustee or
any Holder, or which acceleration shall not be rescinded or annulled
within 10 days after written notice to the Company of such Default by
the Trustee or any Holder;
(6) the entry of a final judgment or judgments which can no
longer be appealed for the payment of money in excess of $5,000,000
against the Company or any Restricted Group Member thereof and such
judgment remains undischarged, for a period of 60 consecutive days
during which a stay of enforcement of such judgment shall not be in
effect;
(7) the Company or any Restricted Group Member pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become due;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Restricted
Subsidiary or for all or substantially all of the property of the
Company or any Restricted Subsidiary, or
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(C) orders the liquidation of the Company or any Restricted
Subsidiary,
and the order or decree remains unstayed and in effect for 60 days; or
(9) any of the Guarantees ceases to be in full force and effect
or any of the Guarantees is declared to be null and void and
unenforceable or any of the Guarantees is found to be invalid or any
of the Guarantors denies in writing its liability under its Guarantee
(other than by reason of release of a Guarantor in accordance with
the terms of this Indenture).
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
The Trustee may withhold notice to the Holders of the Notes of any
Default (except in payment of principal or premium, if any, or interest on the
Notes) if the Trustee considers it to be in the best interest of the Holders of
the Notes to do so. The Trustee shall not be charged with knowledge of any
Default, Event of Default, Change of Control or Asset Sale in payment of
Additional Interest unless written notice thereof shall have been given to a
Responsible Officer at the corporate trust office of the Trustee by the Company
or any other Person.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default arising under
Section 6.01(7) or (8)) occurs and is continuing, then the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Notes then
outstanding may declare to be immediately due and payable the entire principal
amount of all the Notes then outstanding plus accrued interest to the date of
acceleration and the same shall become immediately due and payable (plus, in
the event of any such declaration following a Default resulting from a willful
action of the Company with the intent to avoid the payment of any premium on
the Notes, which declaration occurs (a) before the fifth anniversary of the
Issue Date, a premium (expressed as a percentage of principal amount) equal to
the interest rate per annum then being paid on the Notes, or (b) on or after
the fifth anniversary of the Issue Date, a premium (expressed as a percentage
of principal amount) equal to the then applicable redemption premium);
provided, however, that after such acceleration but be-
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fore a judgment or decree based on acceleration is obtained by the Trustee,
the Holders of a majority in aggregate principal amount of outstanding Notes
may rescind and annul such acceleration if (i) all Events of Default, other
than nonpayment of principal, premium, if any, or interest that has become due
solely because of the acceleration, have been cured or waived as provided in
this Indenture, (ii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iii) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (iv) in
the event of the cure or waiver of an Event of Default of the type described in
Section 6.01(7) or (8), the Trustee shall have received an Officers'
Certificate and an Opinion of Counsel that such Event of Default has been cured
or waived. No such rescission shall affect any subsequent Default or impair any
right consequent thereto. In case an Event of Default resulting from Section
6.01(7) or (8) occurs, the principal, premium and interest amount with respect
to all of the Notes shall be due and payable immediately without any
declaration or other act on the part of the Trustee or the Holders of the
Notes.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture and may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
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Section 6.04. Waiver of Past Defaults and Events of Default.
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of a
majority in principal amount of the Notes then outstanding have the right to
waive any existing Default or Event of Default or compliance with any provision
of this Indenture or the Notes. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the Notes then
outstanding 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 by this Indenture. The Trustee, however, may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines may be unduly prejudicial to the rights of another
Noteholder not taking part in such direction, and the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, determines that the action so directed may not lawfully be taken or if
the Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed may involve it in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 6.06. Limitation on Suits.
Subject to Section 6.07 below, a Noteholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding make a written request to the Trustee
to pursue the remedy;
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(3) such Holder or Holders offer and if requested provide to
the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer, and, if requested
provision, of indemnity; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of
a majority in aggregate principal amount of the Notes then
outstanding.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal of, or premium, if
any, and interest of the Note (including Additional Interest) on or after the
respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of
the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest
specified in Section 6.01(1) or (2) hereof occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or the Guarantors (or any other obligor on the Notes) for
the whole amount of unpaid principal and accrued interest remaining unpaid,
together with interest on overdue principal and, to the extent that payment of
such interest is lawful, interest on overdue installments of interest, in each
case at the rate set forth in the Notes, and such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order
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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 the Noteholders allowed in any judicial proceedings
relative to the Company or the Guarantors (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same after deduction of its charges and
expenses to the extent that any such charges and expenses are not paid out of
the estate in any such proceedings and any custodian in any such judicial
proceeding is hereby authorized by each Noteholder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Noteholders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
or 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 Noteholder in any such proceedings.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07
hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes
for principal, premium, if any, and interest (including Additional
Interest, if any) as to each, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes;
and
THIRD: to the Company or, to the extent the Trustee collects
any amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10.
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Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
Section 6.12. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default actually known to a Responsible Officer of
the Trustee has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the same circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
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(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against
the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture but, in the case of any such certificates or
opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Sections 6.02, 6.05 or 6.06
hereof.
(4) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its rights, powers or duties
or to take or omit to take any action under this Indenture or take
any action at the request or direction of Holders if it shall have
reasonable grounds for believing that repayment of such funds is not
assured to it or it does not receive an indemnity satisfactory to it
in its sole discretion against such risk, liability, loss, fee or
expense which may be incurred by it in connection with such
performance.
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(d) Whether or not therein expressly so provided, paragraphs (a),
(b), (c) and (e) of this Section 7.01 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it in its sole discretion
against any loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
Section 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may rely on any document reasonably believed by
it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in
the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both,
which shall conform to the provisions of Section 11.05 hereof. The
Trustee shall be protected and shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate
or opinion.
(3) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
agent appointed by it with due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(5) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be
full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in
good faith
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and in accordance with the advice or opinion of such counsel.
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 make loans to, accept deposits from,
perform services for or otherwise deal with either of the Company or any
Guarantor, or any Affiliates thereof, with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. The Trustee,
however, shall be subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes or any Guarantee,
it shall not be accountable for the Company's or any Guarantor's use of the
proceeds from the sale of Notes or any money paid to the Company or any
Guarantor pursuant to the terms of this Indenture and it shall not be
responsible for any statement in the Notes, Guarantee or this Indenture other
than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Noteholder notice of the Default within
90 days after it occurs. Except in the case of a Default in payment of the
principal of, or premium, if any, or interest on any Note the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in good faith determine(s) that withholding the notice is in the interests of
the Noteholders.
Section 7.06. Reports by Trustee to Holders.
If required by TIA ss. 313(a), within 60 days after November 15 of any
year, commencing November 15, 1998, the Trustee shall mail to each Noteholder a
brief report dated as of such November 15 that complies with TIA ss. 313(a).
The Trustee also shall comply with TIA ss. 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA ss. 313(c) and TIA ss. 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by mail:
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(1) to all registered Holders of Notes, as the names and
addresses of such Holders appear on the Registrar's books; and
(2) to such Holder of Notes as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose.
A copy of each report at the time of its mailing to Noteholders shall
be filed with the SEC and each stock exchange on which the Notes are listed.
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
Section 7.07. Compensation and Indemnity.
The Company and the Guarantors shall pay to the Trustee and Agents
from time to time such compensation as shall be agreed in writing between
the Company and the Trustee for its services hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust). The Company and the Guarantors shall reimburse
the Trustee and Agents upon request for all reasonable disbursements, expenses
and advances incurred or made by it in connection with its duties under this
Indenture, including the reasonable compensation, disbursements and expenses of
the Trustee's agents and counsel.
The Company and the Guarantors shall, jointly and severally, indemnify
each of the Trustee and any predecessor Trustee for, and hold each of them
harmless against, any and all loss, damage, claim, liability or expense,
including without limitation taxes (other than taxes based on the income of the
Trustee or such Agent) and reasonable attorneys' fees and expenses incurred by
each of them in connection with the acceptance or performance of its duties
under this Indenture including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder (including, without
limitation, settlement costs). The Trustee or Agent shall notify the Company
and the Guarantors in writing promptly of any claim asserted against the
Trustee or Agent for which it may seek indemnity. However, the failure by the
Trustee or Agent to so notify the Company and the Guarantors shall not relieve
the Company and Guarantors of their obligations hereunder except to the extent
the Company and the Guarantors are prejudiced thereby.
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Notwithstanding the foregoing, the Company and the Guarantors need not
reimburse the Trustee for any expense or indemnify it against any loss or
liability incurred by the Trustee through its negligence or bad faith. To
secure the payment obligations of the Company and the Guarantors in this
Section 7.07, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee except such money or property held in
trust to pay principal of and interest on particular Notes. The obligations of
the Company and the Guarantors under this Section 7.07 to compensate, reimburse
and indemnify the Trustee, Agents and each predecessor Trustee and to pay or
reimburse the Trustee, Agents and each predecessor Trustee for expenses,
disbursements and advances shall be joint and several liabilities of the
Company and each of the Guarantors and shall survive the satisfaction,
discharge and termination of this Indenture, including any termination or
rejection hereof under any bankruptcy law or the resignation or removal of the
Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall include
any trustee appointed pursuant to Article 9.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company and the Guarantors
in writing. The Holders of a majority in principal amount of the outstanding
Notes may remove the Trustee by notifying the removed Trustee in writing and
may appoint a successor Trustee with the Company's written consent which
consent shall not be unreasonably withheld. The Company may remove the Trustee
at their election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property;
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(4) the Trustee otherwise becomes incapable of acting; or
(5) a successor corporation becomes successor Trustee
pursuant to Section 7.09 below.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify the holders of such
event and promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount
of the Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Noteholder. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Consolidation, Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee.
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Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1) and (2) in every respect. The Trustee shall
have a combined capital and surplus of at least $80,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA ss. 310(b), including the provision in ss. 310(b)(1).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
Section 7.12. Paying Agents.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(A) that it shall hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the
Notes (whether such sums have been paid to it by the Company or by
any obligor on the Notes) in trust for the benefit of Holders of the
Notes or the Trustee;
(B) that it shall at any time during the continuance of any
Event of Default, upon written request from the Trustee, deliver to
the Trustee all sums so held in trust by it together with a full
accounting thereof; and
(C) that it shall give the Trustee written notice within three
(3) Business Days of any failure of the Company (or by any obligor on
the Notes) in the payment of any installment of the principal of,
premium, if any, or interest on, the Notes when the same shall be due
and payable.
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ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a Board Resolution
of each of them, and the Trustee may amend, waive or supplement this Indenture
or the Notes without notice to or consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to comply with any requirements of the SEC under the TIA;
(4) to cure any ambiguity, defect or inconsistency;
(5) to make any other change that does not, in the opinion of the
Trustee materially and adversely affect the rights of any Noteholder
hereunder; or
(6) to add a Guarantor.
The Trustee is hereby authorized to join with the Company and the
Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
Section 8.02. With Consent of Holders.
The Company and the Guarantors, when authorized by a Board Resolution
of each of them, and the Trustee may modify or supplement this Indenture or the
Notes with the written consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Notes. The Holders of not less
than a majority in aggregate principal amount of the outstanding Notes may
waive compliance in a particular instance by the Company or the Guarantors with
any provision of this Indenture or the Notes. Subject to Section 8.04, without
the consent of
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each Noteholder affected, however, an amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment, supplement or waiver to this Indenture or the Notes;
(2) reduce the rate of or change the time for payment of
interest, included defaulted interest, on any Note;
(3) reduce the principal of or premium on or change the stated
maturity of any Note or change the date on which any Notes may be
subject to redemption or repurchase or reduce the redemption or
repurchase price therefor;
(4) make any Note payable in money other than that stated in
the Note or change the place of payment from New York, New York;
(5) waive a default in the payment of the principal of, or
interest on, or redemption payment with respect to, any Note
(including any obligation to make a Change of Control Offer or, after
the Company's obligation to purchase Notes arises thereunder, an
Excess Proceeds Offer or modify any of the provisions or definitions
with respect to such offers);
(6) make any changes in Sections 6.04 or 6.07 hereof or this
sentence of Section 8.02;
(7) amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of Control
Offer in the event of a Change of Control or make and consummate an
Asset Sale Offer with respect to any Asset Sale that has been
consummated or modify any of the provisions or definitions with
respect thereto;
(8) modify or change any provision of this Indenture or the
related definitions affecting the ranking of the Notes or any
Guarantee in a manner which adversely affects the Holders; or
(9) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with the
terms of this Indenture.
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After an amendment, supplement or waiver under this Section 8.02 or
Section 8.01 becomes effective, the Company shall mail to the Holders a notice
briefly describing the amendment, supplement or waiver.
Upon the written request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Noteholders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06 hereof, the Trustee shall
join with the Company and the Guarantors in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture, in which case the Trustee may, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
Section 8.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may
revoke the consent as to his Note or portion of a Note, if the Trustee receives
the written notice of revocation before the date the amendment, supplement,
waiver or other action becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver. If a record date is fixed, then, notwithstanding the
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or
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to revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date unless the consent of
the requisite number of Holders has been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described
in any of clauses (1) through (8) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note.
Section 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note,
the Trustee (in accordance with the specific written direction of the Company)
shall request the Holder of the Note (in accordance with the specific written
direction of the Company) to deliver it to the Trustee. In such case, the
Trustee shall place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue, the Guarantors
shall endorse, and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment supplement or
waiver.
Section 8.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver the Trustee shall be entitled to
receive and, subject to Section 7.01 hereof, shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel stating that
such amendment, supplement or waiver is authorized or permitted by this
Indenture and is a legal, valid and binding obligation of the Company and the
Guarantors, enforceable against the Company and the Guarantors in accordance
with its terms (subject to customary exceptions).
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ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.
The Company and the Guarantors may terminate their obligations under
the Notes, the Guarantees and this Indenture, except the obligations referred
to in the last paragraph of this Section 9.01, if there shall have been
canceled by the Trustee or delivered to the Trustee for cancellation all Notes
theretofore authenticated and delivered (other than any Notes that are asserted
to have been destroyed, lost or stolen and that shall have been replaced as
provided in Section 2.07 hereof) and the Company has paid all sums payable by
them hereunder or deposited all required sums with the Trustee.
After such delivery the Trustee upon Issuer request shall acknowledge
in writing the discharge of the Company's and the Guarantors' obligations under
the Notes, the Guarantees and this Indenture except for those surviving
obligations specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Sections 7.07, 9.05 and 9.06 hereof shall
survive.
Section 9.02. Legal Defeasance.
The Company may at its option, by Board Resolution of the Board of
Directors of the Company, be discharged from its obligations with respect to
the Notes and the Guarantors discharged from their obligations under the
Guarantees on the date the conditions set forth in Section 9.04 below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Notes and to have satisfied all its
other obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall, subject to
Section 9.06 hereof, execute instruments in form and substance reasonably
satisfactory to the Trustee and Company acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of outstanding Notes to receive solely
from the trust funds described in Section 9.04 hereof and as more fully set
forth in such Section, payments in re-
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spect of the principal of, premium, if any, and interest on such Notes when
such payments are due, (B) the Company's obligations with respect to such
Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09 and 4.20 hereof,
(C) the rights, powers, trusts, duties, and immunities of the Trustee hereunder
(including claims of, or payments to, the Trustee under or pursuant to Section
7.07 hereof) and (D) this Article 9. Subject to compliance with this Article 9,
the Company may exercise at its option under this Section 9.02 with respect to
the Notes notwithstanding the prior exercise of its option under Section 9.03
below with respect to the Notes.
Section 9.03. Covenant Defeasance.
At the option of the Company, pursuant to a Board Resolution of the
Board of Directors of the Company, the Company will be released from its
obligations under Sections 4.02, through 4.18, 4.20, 4.21 and 4.23 hereof and
clauses (a)(ii), (iii) and (iv) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section
9.04 hereof are satisfied (hereinafter, "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that the Company and the Guarantors may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section or portion
thereof, whether directly or indirectly by reason of any reference elsewhere
herein to any such specified Section or portion thereof or by reason of any
reference in any such specified Section or portion thereof to any other
provision herein or in any other document, but the remainder of this Indenture
and the Notes shall be unaffected thereby.
Section 9.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 9.02
or Section 9.03 hereof to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 hereof who shall agree to comply with
the provisions of this Article 9 applicable to it) as funds in trust
for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Notes, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment
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of principal and interest in respect thereof in accordance with
their terms shall provide, not later than the due date of any
payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, the principal of, premium, if any, and accrued
interest on the outstanding Notes at the maturity date of such
principal, premium, if any, or interest, or on dates for payment and
redemption of such principal, premium, if any, and interest selected
in accordance with the terms of this Indenture and of the Notes;
(2) no Event of Default or Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit, or
shall have occurred and be continuing at any time during the period
ending on the 91st day after the date of such deposit or, if longer,
ending on the day following the expiration of the longest preference
period under any Bankruptcy Law applicable to the Company in respect
of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest for purposes of the
TIA with respect to any securities of the Company;
(4) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute default under any
other agreement or instrument to which the Company is a party or by
which it is bound;
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel stating that, as a result of such Legal Defeasance or
Covenant Defeasance, neither the trust nor the Trustee shall be
required to register as an investment company under the Investment
Company Act of 1940, as amended;
(6) in the case of an election under Section 9.02 above, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling to the effect
that or (ii) there
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has been a change in any applicable Federal income tax law with
the effect that, and such opinion shall confirm that, the Holders of
the outstanding Notes or persons in their positions shall not
recognize income, gain or loss for Federal income tax purposes solely
as a result of such Legal Defeasance and shall be subject to Federal
income tax on the same amounts, in the same manner, including as a
result of prepayment, and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(7) in the case of an election under Section 9.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the outstanding Notes shall not
recognize income, gain or loss for Federal income tax purposes as a
result of such Covenant Defeasance and shall be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(8) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to either the Legal
Defeasance under Section 9.02 above or the Covenant Defeasance under
Section 9.03 hereof (as the case may be) have been complied with;
(9) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit under clause (1) was
not made by the Company with the intent of defeating, hindering,
delaying or defrauding any creditors of the Company or others;
(10) the Company shall have paid or duly provided for payment
under terms mutually satisfactory to the Company and the Trustee all
amounts then due to the Trustee pursuant to Section 7.07 hereof; and
(11) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel (to the extent
matters of law are involved), each stating that (x) all conditions
precedent herein provided for relating to either the legal defeasance
under paragraph 9.02 above or the covenant defeasance under paragraph
9.03 above, as the case may be, have been complied with and (y) if
any other Indebtedness of the Company shall then be outstanding or
committed, such legal defeasance or covenant defea-
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sance shall not violate the provisions of the agreements or
instruments evidencing such Indebtedness.
Section 9.05. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.04 hereof in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent, to the Holders of such
Notes, of all sums due and to become due thereon in respect of principal,
premium, if any, and accrued interest, but such money need not be segregated
from other funds except to the extent required by law.
The Company and the Guarantors shall (on a joint and several basis)
pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.04 hereof or the principal, premium, if any, and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon an Issuer
Request any money or U.S. Government Obligations held by it as provided in
Section 9.04 hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
Section 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof 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 and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 9 until such time as
the Trus-
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tee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 9.01 hereof; provided, however, that if
the Company or the Guarantors have made any payment of principal of, premium, if
any, or accrued interest on any Notes because of the reinstatement of their
obligations, the Company or the Guarantors, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
Section 9.07. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon written demand of the Company, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.01 hereof, to the
Company upon an Issuer Request (or, if such moneys had been deposited by the
Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
Section 9.08. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Company or the Guarantors in trust for the payment of the principal of,
or premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which
the principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon an Issuer Request, or if such moneys are then
held by the Company or the Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company
and the Guarantors for the payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Trustee or any such Paying Agent, before being
required to make any such repayment, may, at the expense of the Company and the
Guarantors, either mail to each Noteholder affected, at the address shown in
the register of the Notes maintained by the Registrar pursuant to Section 2.04
hereof, or cause to be published once a week for two successive weeks, in a
newspaper published in the English language, customarily published each
Business Day and of general circulation in the City of New York, New York, a
notice that such money re-
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mains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such mailing or publication, any unclaimed
balance of such moneys then remaining shall be repaid to the Company.
After payment to the Company or the Guarantors or the release of any money held
in trust by the Company or any Guarantors, as the case may be, Noteholders
entitled to the money must look only to the Company and the Guarantors for
payment as general creditors unless applicable abandoned property law
designates another person.
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Guarantee.
Subject to the provisions of this Article 10, each Guarantor, by
execution of the Guarantee, shall jointly and severally unconditionally
guarantee to each Holder and to the Trustee, (i) the due and punctual payment
of the principal of, and premium, if any, and interest on each Note, when and
as the same shall become due and payable, whether at maturity, by acceleration
or otherwise, the due and punctual payment of interest on the overdue principal
of, and premium, if any, and interest on the Notes, to the extent lawful, and
the due and punctual performance of all other Obligations of the Company to the
Holders or the Trustee (including without limitation amounts due the Trustee
under Section 7.07) all in accordance with the terms of such Note and this
Indenture, and (ii) in the case of any extension of time of payment or renewal
of any Notes or any of such other Obligations, that the same shall be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, at stated maturity, by acceleration or otherwise. Each
Guarantor, by execution of the Guarantee, shall agree that its obligations
thereunder and hereunder shall be absolute and unconditional, irrespective of,
and shall be unaffected by, any invalidity, irregularity or unenforceability of
any such Note or this Indenture, any failure to enforce the provisions of any
such Note or this Indenture, any waiver, modification or indulgence granted to
the Company with respect thereto by the Holder of such Note or the Trustee, or
any other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or such Guarantor.
Each Guarantor, by execution of the Guarantee, shall waive diligence,
presentment, demand for payment, filing of
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claims with a court in the event of merger or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest or notice with
respect to any such Note or the Indebtedness evidenced thereby and all demands
whatsoever, and shall covenant that this Guarantee shall not be discharged as
to any such Note except by payment in full of the principal thereof, premium if
any, and interest thereon and as provided in Section 9.01 hereof. Each
Guarantor, by execution of the Guarantee, shall further agree that, as between
such Guarantor, on the one hand, and the Holders and the Trustee, on the other
hand, (i) the maturity of the Obligations guaranteed hereby may be accelerated
as provided in Article 6 hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby, and (ii) in the
event of any declaration of acceleration of such Obligations as provided in
Article 6 hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of this
Guarantee. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article 6 hereof, the Trustee shall
promptly make a demand for payment on the Notes under the Guarantee provided
for in this Article 10 and not discharged.
A Guarantee shall not be valid or become obligatory for any purpose
with respect to a Note until the certificate of authentication on such Note
shall have been signed by or on behalf of the Trustee.
Section 10.02. Execution and Delivery of Guarantees.
A Guarantee shall be executed on behalf of a Guarantor by the manual
or facsimile signature of an Officer of such Guarantor.
If an Officer of a Guarantor whose signature is on the Guarantee no
longer holds that office, such Guarantee shall be valid nevertheless.
Section 10.03. Limitation of Guarantee.
The obligations of each Guarantor are limited to the maximum amount as
shall, after giving effect to all other contingent and fixed liabilities of
such Guarantor (including, without limitation, any guarantees of Senior
Indebtedness) and after giving effect to any collections from or payments made
by or on behalf of any other Guarantor in respect of the obligations of such
other Guarantor under its Guarantee or pursuant
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to its contribution obligations under this Indenture, result in the obligations
of such Guarantor under the Guarantee not constituting a fraudulent conveyance
or fraudulent transfer under federal or state law. Each Guarantor that makes a
payment or distribution under a Guarantee shall be entitled to a contribution
from each other Guarantor in a pro rata amount based on the Adjusted Net
Assets of each Guarantor.
Section 10.04. Release of Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee if:
(i) the Guarantor has sold all or substantially all of its
assets or the Company and its Restricted Subsidiaries have sold all
of the Capital Stock of the Guarantor owned by them, in each case in
a transaction in compliance with Sections 4.10 and 5.01 hereof; or
(ii) the Guarantor merges with or into or consolidates with, or
transfers all or substantially all of its assets to, the Company or
another Guarantor in a transaction in compliance with Section 5.01
hereof;
and in each such case, such Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 11.02. Notices.
Except for notice or communications to Holders, any notice or
communication shall be given in writing and delivered in person, sent by
facsimile, delivered by commercial courier
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service or mailed by first-class mail, postage prepaid, addressed as follows:
If to the Company or any Guarantor:
Aircraft Service International Group, Inc.
▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C., and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
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The Company, the Guarantors or the Trustee by written notice to the
others may designate additional or different addresses for subsequent notices
or communications.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication to a Noteholder is mailed in the
manner provided above, it shall be deemed duly given, whether or not the
addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
Section 11.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA ss. 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, the Company or such Guarantor
shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.05 below) stating that, in the
opinion of the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 11.05 below) stating that,
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in the opinion of such counsel, all such conditions precedent
have been complied with.
Section 11.05. Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he has
made such examination or investigation as is necessary to enable it or
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or meetings of
Noteholders. The Registrar and Paying Agent may make reasonable rules for their
functions.
Section 11.07. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on
which banking institutions are not required to be open in the State of New York
or the State of Delaware. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
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Section 11.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 11.10. No Recourse Against Others.
No recourse for the payment of the principal of or premium, if any, or
interest on any of the Notes, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company or any Guarantor in this Indenture or in any
supplemental indenture, or in any of the Notes, or because of the creation of
any Indebtedness represented thereby, shall be had against any stockholder,
officer, director or employee, as such, past, present or future, of the Company
or of any successor corporation or against the property or assets of any such
stockholder, officer, employee or director, either directly or through the
Company or any Guarantor, or any successor corporation thereof, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the Notes are solely obligations of the Company and the
Guarantors, and that no such personal liability whatever shall attach to, or is
or shall be incurred by, any stockholder, officer, employee or director of the
Company or any Guarantor, or any successor corporation thereof, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or the Notes
or implied therefrom, and that any and all such personal liability of, and any
and all claims against every stockholder, officer, employee and director, are
hereby expressly waived and released as a condition of, and as a con-
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sideration for, the execution of this Indenture and the issuance of the Notes.
It is understood that this limitation on recourse is made expressly for the
benefit of any such shareholder, employee, officer or director and may be
enforced by any of them.
Section 11.11. Successors.
All agreements of the Company and the Guarantors in this Indenture and
the Notes shall bind their respective successors. All agreements of the
Trustee, any additional trustee and any Paying Agents in this Indenture shall
bind its successor.
Section 11.12. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 11.13. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 11.14. Separability.
Each provision of this Indenture shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed all as of the date and year first written above.
AIRCRAFT SERVICE INTERNATIONAL
GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and CEO
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
AIRCRAFT SERVICE INTERNATIONAL GROUP,
INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and CEO
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
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FLORIDA AVIATION FUELING COMPANY,
INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and CEO
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
DISPATCH SERVICES, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and CEO
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Vice President
110
EXHIBIT A
[FORM OF FACE OF NOTE]
Number CUSIP
AIRCRAFT SERVICE INTERNATIONAL GROUP, INC.
11% SENIOR NOTE DUE 2005
AIRCRAFT SERVICE INTERNATIONAL GROUP, INC., a Delaware corporation
(the "Issuer", which term includes any successor corporation), for value
received promises to pay to [ ] or registered assigns the principal sum of
[ ] DOLLARS ($ ), on August 15, 2005.
Interest Payment Dates: February 15 and August 15, commencing
February 15, 1999.
Record Dates: February 1 and August 1
This Note shall not be valid or obligatory for any purpose until the
certificate of authentication shall have been executed by the Trustee by its
manual signature.
Reference is made to the further provisions of this Security contained
herein, which shall for all purposes have the same effect as if set forth at
this place.
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IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually or by facsimile by its duly authorized Officers.
AIRCRAFT SERVICE INTERNATIONAL
GROUP, INC.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
Certificate of Authentication:
This is one of the 11% Senior
Notes due 2005 referred to in
the within-mentioned Indenture
Dated: August 18, 1998
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
---------------------------------
Authorized Signatory
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(REVERSE SIDE)
AIRCRAFT SERVICE INTERNATIONAL GROUP, INC.
11% SENIOR NOTE DUE 2005
1. INTEREST.
AIRCRAFT SERVICE INTERNATIONAL GROUP, INC., a Delaware corporation
(the "Issuer"), promises to pay interest on the principal amount of this Note
semiannually on February 15 and August 15 of each year (each an "Interest
Payment Date"), commencing on February 15, 1999, at the rate of 11% per annum.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of the
original issuance of the Notes.
The Issuer shall pay interest on overdue principal, and on overdue
premium, if any, and overdue interest, to the extent lawful, at the rate equal
to 2% per annum in excess of the rate borne by the Notes.
2. METHOD OF PAYMENT.
The Issuer will pay interest on this Note provided for in Paragraph 1
above (except defaulted interest) to the person who is the registered Holder of
this Note at the close of business on the February 1 or August 1 preceding the
Interest Payment Date (whether or not such day is a Business Day). The Holder
must surrender this Note to a Paying Agent to collect principal payments. The
Issuer will pay principal, premium, if any, and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts; provided, however, that the Issuer may pay principal, premium,
if any, and interest by check payable in such money. The Issuer may mail an
interest check to the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, State Street Bank and Trust Company (the "Trustee") will
act as Paying Agent and Registrar. The Issuer may change any Paying Agent or
Registrar without notice to the
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Holders of the Notes. Neither the Issuer nor any of its Subsidiaries or
Affiliates may act as Paying Agent but may act as Registrar.
4. INDENTURE; RESTRICTIVE COVENANTS.
The Issuer issued this Note under an Indenture dated as of August 18,
1998 (the "Indenture") among the Issuer, the Guarantors and the Trustee. The
terms of this Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
▇▇.▇▇. 77aaa-77bbbb) as in effect on the date of the Indenture. This Note is
subject to all such terms, and the Holder of this Note is referred to the
Indenture and said Trust Indenture Act for a statement of them. All capitalized
terms in this Note, unless otherwise defined, have the meanings assigned to
them by the Indenture.
The Notes are limited in aggregate principal amount to $80,000,000.
The Notes are general unsecured obligations of the Company, pari passu in right
of payment to senior obligations of the Company and senior in right of payment
to any current or future subordinated obligations of the Company. The Indenture
imposes certain restrictions on, among other things, the incurrence of
indebtedness, the issuance of common and preferred stock of subsidiaries of the
Issuer, the payment of dividends and making of other restricted payments, the
transfer and sale of assets, certain transactions with affiliates, the creation
of liens, the making of certain investments, certain sale and leaseback
transactions, agreements restricting the ability of Restricted Group Members to
declare dividends and make distributions and the merger or consolidation of the
Company or any Guarantors.
5. OPTIONAL REDEMPTION.
The Issuer, at its option, may redeem the Notes, in whole or in part,
from time to time on or after August 15, 2003 upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount thereof), set forth below, together, in each case, with
accrued and unpaid interest, if any, to the Redemption Date, if redeemed during
the twelve month period beginning on August 15 of each year listed below:
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Year Redemption Price
---- ----------------
2003.................................................. 105.500%
2004 and thereafter................................... 100.000%
Notwithstanding the foregoing, the Issuer, at its option, may redeem
in the aggregate up to 33 1/3% of the original principal amount of Notes at any
time and from time to time prior to August 15, 2001 at a redemption price equal
to 111.000% of the aggregate principal amount so redeemed, together with accrued
and unpaid interest, if any, to the redemption date out of the Net Proceeds of
one or more Public Offerings; provided that at least $53.3 million of the
principal amount of Notes originally issued remain outstanding immediately after
the occurrence of any such redemption and that any such redemption occurs within
90 days following the closing of such Public Offering and provided, further,
that with respect to any Public Offering by Ranger, the net proceeds thereof are
contributed to the Issuer as common equity.
6. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at least 30
days but not more than 60 days prior to the redemption date to each Holder of
Notes to be redeemed at its registered address as it shall appear on the
register of the Notes maintained by the Registrar. On and after any Redemption
Date, interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Company shall fail to redeem any such Note.
7. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be used,
subject to further limitations contained therein, to make an offer to purchase
certain amounts of Notes in accordance with the procedures set forth in the
Indenture. The Company is also required to make an offer to purchase Notes upon
the occurrence of a Change of Control in accordance with procedures set forth in
the Indenture.
8. REGISTRATION RIGHTS.
Pursuant to the Registration Rights Agreement among the Issuer, the
Guarantors and CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp., as initial purchaser of the Notes, the
Issuer and the Guarantors will
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be obligated to consummate an exchange offer pursuant to which the Holder of
this Note shall have the right to exchange this Note for Notes of a separate
series issued under the Indenture (or a trust indenture substantially
identical to the Indenture in accordance with the terms of the Registration
Rights Agreement) which have been registered under the Securities Act, in like
principal amount and having substantially identical terms as the Notes. The
Holders shall be entitled to receive certain additional interest payments in the
event such exchange offer is not consummated and upon certain other conditions,
all pursuant to and in accordance with the terms of the Registration Rights
Agreement.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples thereof. A Holder may register the transfer or
exchange of Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any Note
selected for redemption or register the transfer of or exchange any Note for a
period of 15 days before the mailing of notice of redemption of Notes to be
redeemed or any Note after it is called for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of it
for all purposes.
11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any Note
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Issuer at its written request. After that, Holders entitled to money
must look to the Issuer for payment as general creditors unless an "abandoned
property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
modified, amended or supplemented by the Issuer,
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116
the Guarantors and the Trustee with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding and any existing
default or compliance with any provision may be waived in a particular instance
with the consent of the Holders of a majority in principal amount of the Notes
then outstanding. Without the consent of Holders, the Issuer, the Guarantors
and the Trustee may amend the Indenture or the Notes or supplement the
Indenture for certain specified purposes including providing for
uncertificated Notes in addition to certificated Notes, and curing any
ambiguity, defect or inconsistency, or making any other change that does not, in
the opinion of the Trustee, materially and adversely affect the rights of any
Holder.
13. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture and immediately before and
thereafter no Default exists and certain other conditions are satisfied, the
predecessor corporation will be released from those obligations.
14. DEFAULTS AND REMEDIES.
Events of Default are set forth in the Indenture. If an Event of
Default (other than an Event of Default pursuant to Section 6.01(7) or (8)) of
the Indenture occurs and is continuing, then the Trustee or the holders of not
less than 25% in aggregate principal amount of the Notes then outstanding may
declare to be immediately due and payable the entire principal amount of all the
Notes then outstanding plus accrued interest to the date of acceleration and the
same will become immediately due and payable (plus, in the event of any such
declaration following a Default resulting from a willful action of the Company
with the intent to avoid the payment of any premium on the Notes, which
declaration occurs (a) before the fifth anniversary of the Issue Date, a premium
(expressed as a percentage of principal amount) equal to the interest rate per
annum then being paid on the Notes, or (b) on or after the fifth anniversary of
the Issue Date, a premium (expressed as a percentage of principal amount) equal
to the then applicable redemption premium)); provided, however, that after such
acceleration but before a judgment or decree based on acceleration is obtained
by the Trustee, the holders of a majority in aggregate principal amount of
outstanding Notes may rescind and annul such acceleration if (i) all Events of
Default, other than nonpayment of principal, premium, if any, or interest that
has become due
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solely because of the acceleration, have been cured or waived as provided in
the Indenture, (ii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iii) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (iv) in
the event of the cure or waiver of an Event of Default of the type described in
Section 6.01(7) or (8) of the Indenture, the Trustee will have received an
Officers' Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived. No such rescission will affect any subsequent Default or
impair any right consequent thereto. In case an Event of Default resulting from
Section 6.01(7) or (8) of the Indenture occurs, the principal, premium and
interest amount with respect to all of the Notes will be due and payable
immediately without any declaration or other act on the part of the Trustee or
the holders of the Notes.
15. TRUSTEE DEALINGS WITH THE ISSUERS
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Issuer, any Guarantor or their Affiliates, and may otherwise deal with the
Issuer any Guarantor or their Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee or stockholder, as such, of the Issuer or any Guarantor shall not have
any liability for any obligations of the Issuer or any Guarantor under the Notes
or the Indenture or for any claim based on, in respect or by reason of, such
obligations or their creation. The Holder of this Note by accepting this Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
17. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Issuer with certain conditions set forth in the
Indenture.
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18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a Note
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors
Act).
19. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Note Identification Procedures, the Issuer has caused CUSIP Numbers to be
printed on the Notes and have directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of the Notes. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
20. GOVERNING LAW.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS NOTE.
THE ISSUER WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: AIRCRAFT
SERVICE INTERNATIONAL GROUP, INC., ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Chief Financial Officer.
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21. GUARANTEES BY FUTURE SUBSIDIARIES.
The Notes will be entitled to the benefits of certain Guarantees by
future subsidiaries made for the benefit of the Holders. Reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
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ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Issuer. The Agent may substitute
another to act for him.
Date: Your Signature:
--------------- -------------------------------------------
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:
------------------------------------------------------
121
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by
the Issuer pursuant to Section 4.10 or Section 4.18 of the Indenture, check the
appropriate box:
[ ] Section 4.10 [ ] Section 4.18
If you want to have only part of the Note purchased by the Issuer
pursuant to Section 4.10 or Section 4.18 of the Indenture, state the amount you
elect to have purchased:
$ ________________________
Date: ____________________
Your Signature:
--------------------------------------------------
(Sign exactly as your name appears on
the face of this Note)
-----------------------------
Signature Guaranteed
122
EXHIBIT B
[FORM OF LEGEND FOR 144A NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES THAT IT WILL NOT
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS NOTE AND THE LAST DATE ON
WHICH THE ISSUERS OR ANY AFFILIATE OF THE ISSUERS, WAS THE OWNER OF THIS NOTE
(OR ANY PREDECESSOR OF SUCH NOTE), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO AN ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT, (C) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE ACT, (D)
INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
COMPANY AND THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (E) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT OR (F)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT
(IF AVAILABLE) AND (2) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS
OF THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE ACT.
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[FORM OF ASSIGNMENT FOR 144A NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Issuer. The Agent may substitute
another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided by Rule
144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance
with (a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: _________________ Your Signature: ________________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: ______________________________________________________
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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: __________________ ________________________________
NOTICE: To be executed by
an executive officer
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EXHIBIT C
[FORM OF LEGEND FOR REGULATION S NOTE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS UNLESS REGISTERED UNDER THE SECURITIES
ACT OR EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
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[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Issuer. The Agent may substitute
another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided by Rule
144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance
with (a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: _________________ Your Signature: ________________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: _________________________________________________
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127
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: __________________ ________________________________
NOTICE: To be executed by
an executive officer
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128
EXHIBIT D
---------
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Note or Regulation S Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE
OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUERS
OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IT REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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EXHIBIT E
---------
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------, ----
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: AIRCRAFT SERVICE INTERNATIONAL GROUP, INC. (the "Company") 11%
Senior Notes due 2005 (the "Notes")
--------------------------------------------------------------
Dear Sirs:
In connection with our proposed purchase of Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the
Indenture dated as of August 18, 1998 relating to the Notes and we
agree to be bound by, and not to resell, pledge or otherwise transfer
the Notes except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the Notes have not been registered under
the Securities Act, and that the Notes may not be offered, sold,
pledged or otherwise transferred except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that if we should sell
any Notes, we will do so only (i) to the Company or any subsidiary
thereof, (ii) pursuant to an effective registration statement under
the Securities Act, (iii) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined in
Rule 144A), (iv) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has
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130
furnished on its behalf by a U.S. broker-dealer) to you a signed
letter containing certain representations and agreements relating to
the restrictions on transfer of the Notes, (v) outside the United
States to persons other than U.S. persons in offshore transactions
meeting the requirements of Rule 904 of Regulation S under the
Securities Act, or (vi) pursuant to any other exemption from
registration under the Securities Act (if available), and we further
agree to provide to any person purchasing any of the Notes from us a
notice advising such purchaser that resales of the Notes are
restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we
will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that
the Notes purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are
acting each are able to bear the economic risk of our or their
investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account
or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole
investment discretion.
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131
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
----------------------------
Authorized Signature
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EXHIBIT F
---------
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
----------, ----
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: AIRCRAFT SERVICE INTERNATIONAL GROUP, INC. (the "Company"), 11%
Senior Notes due 2005 (the "Notes")
--------------------------------------------------------------
Dear Sirs:
In connection with our proposed sale of $__________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. person
or to a person in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting
on our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
F-1
133
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
----------------------------
Authorized Signature
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134
EXHIBIT G
---------
[FORM OF GUARANTEE]
The undersigned (the "Guarantor") hereby unconditionally guarantees,
on a senior unsecured basis, jointly and severally with all other guarantors
under the Indenture dated as of August 18, 1998 by and among Aircraft Service
International Group, Inc., a Delaware corporation (the "Company"), Aircraft
Service International, Inc., a Delaware corporation, Florida Aviation Fueling
Company, Inc., a Florida corporation, and Dispatch Services, Inc., a Florida
corporation (collectively, the "Guarantors"), and State Street Bank and Trust
Company, as trustee (as amended, restated or supplemented from time to time,
the "Indenture"), to the extent set forth in the Indenture and subject to the
provisions of the Indenture, (a) the due and punctual payment of the principal
of and premium, if any, and interest on the Notes, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on overdue
principal of, and premium, if any, and interest on the Notes, to the extent
lawful, and the due and punctual performance of all other obligations of the
Company to the Noteholders or the Trustee, all in accordance with the terms set
forth in Article 10 of the Indenture, and (b) in case of any extension of time
of payment or renewal of any Notes or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.
The obligations of the Guarantor to the Noteholders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
10 of the Indenture and reference is hereby made to the Indenture for the
precise terms and limitations of this Guarantee.
Dated: [Guarantor]
By:
--------------------------------------
Name:
Title:
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