Exhibit 4.1
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NORTH AMERICAN VAN LINES, INC.
THE NOTE GUARANTORS PARTY HERETO
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
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INDENTURE
Dated as of November 19, 1999
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13 3/8% Senior Subordinated Notes due 2009
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Table of Contents
Page
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION .............1
Section 1.01 Definitions ................................................1
Section 1.02 Other Definitions .........................................33
Section 1.03 Rules of Construction .....................................34
Section 1.04 Incorporation by Reference of TIA .........................34
Section 1.05 Conflict with TIA .........................................35
Section 1.06 Compliance Certificates and Opinions ......................35
Section 1.07 Form of Documents Delivered to Trustee ....................35
Section 1.08 Acts of Noteholders; Record Dates .........................36
Section 1.09 Notices, etc., to Trustee and Company .....................38
Section 1.10 Notices to Holders; Waiver ................................38
Section 1.11 Effect of Headings and Table of Contents ..................39
Section 1.12 Successors and Assigns ....................................39
Section 1.13 Separability Clause .......................................39
Section 1.14 Benefits of Indenture .....................................39
Section 1.15 GOVERNING LAW .............................................39
Section 1.16 Legal Holidays ............................................39
Section 1.17 No Personal Liability of Directors, Officers,
Employees, Incorporators and Stockholders .................39
Section 1.18 Exhibits and Schedules ....................................40
Section 1.19 Counterparts ..............................................40
ARTICLE 2 NOTE FORMS .........................................................40
Section 2.01 Forms Generally ...........................................40
Section 2.02 Form of Trustee's Certificate of Authentication ...........41
Section 2.03 Restrictive and Global Note Legends .......................41
ARTICLE 3 THE NOTES ..........................................................44
Section 3.01 Title and Terms ...........................................44
Section 3.02 Denominations .............................................44
Section 3.03 Execution, Authentication and Delivery and Dating .........44
Section 3.04 Temporary Notes ...........................................45
Section 3.05 Registration, Registration of Transfer and Exchange .......45
Section 3.06 Mutilated, Destroyed, Lost and Stolen Notes ...............46
Section 3.07 Payment of Interest Rights Preserved ......................47
Section 3.08 Persons Deemed Owners .....................................48
Section 3.09 Cancellation ..............................................48
Section 3.10 Computation of Interest ...................................48
Section 3.11 CUSIP Numbers .............................................48
i
Section 3.12 Book-Entry Provisions for Global Notes ....................48
Section 3.13 Special Transfer Provisions. Transfers to Non-U.S.
Persons. (1) The following provisions shall apply
with respect to the registration of any proposed
transfer of a Note that is a Restricted Security to
any Non-U.S. Person: The Note Registrar shall
register such transfer if it complies with all other
applicable requirements of this Indenture (including
Section 3.05) and, ........................................50
Section 3.14 Payment of Additional Interest ............................53
ARTICLE 4 COVENANTS ..........................................................53
Section 4.01 Payment of Principal, Premium and Interest ................53
Section 4.02 Maintenance of Office or Agency ...........................53
Section 4.03 Money for Payments To Be Held in Trust ....................53
Section 4.04 SEC Reports ...............................................54
Section 4.05 Statement as to Default ...................................55
Section 4.06 Limitation on Indebtedness ................................55
Section 4.07 Limitation on Layering ....................................58
Section 4.08 Limitation on Restricted Payments. ........................58
Section 4.09 Limitation on Restrictions on Distributions from
Restricted Subsidiaries ...................................62
Section 4.10 Limitation on Sales of Assets and Subsidiary Stock ........63
Section 4.11 Limitation on Transactions with Affiliates ................66
Section 4.12 Limitation on Liens .......................................67
Section 4.13 Future Note Guarantors ....................................68
Section 4.14 Purchase of Notes Upon a Change in Control ................68
ARTICLE 5 SUCCESSOR COMPANY ..................................................69
Section 5.01 When the Company May Merge, etc ...........................69
Section 5.02 Successor Company Substituted .............................70
ARTICLE 6 REMEDIES ...........................................................70
Section 6.01 Events of Default .........................................70
Section 6.02 Acceleration of Maturity; Rescission and Annulment ........72
Section 6.03 Other Remedies; Collection Suit by Trustee ................73
Section 6.04 Trustee May File Proofs of Claim ..........................73
Section 6.05 Trustee May Enforce Claims Without Possession of Notes ....74
Section 6.06 Application of Money Collected ............................74
Section 6.07 Limitation on Suits. No Holder may pursue any remedy
with respect to this Indenture or the Notes unless: ......74
Section 6.08 Unconditional Right of Holders to Receive
Principal and Interest ....................................75
Section 6.09 Restoration of Rights and Remedies ........................75
Section 6.10 Rights and Remedies Cumulative ............................75
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Section 6.11 Delay or Omission Not Waiver ..............................75
Section 6.12 Control by Holders ........................................75
Section 6.13 Waiver of Past Defaults ...................................76
Section 6.14 Undertaking for Costs .....................................76
Section 6.15 Waiver of Stay, Extension or Usury Laws ...................77
ARTICLE 7 THE TRUSTEE ........................................................77
Section 7.01 Certain Duties and Responsibilities .......................77
Section 7.02 Notice of Defaults ........................................78
Section 7.03 Certain Rights of Trustee .................................78
Section 7.04 Not Responsible for Recitals or Issuance of Notes .........79
Section 7.05 May Hold Notes ............................................79
Section 7.06 Money Held in Trust .......................................79
Section 7.07 Compensation and Reimbursement ............................79
Section 7.08 Conflicting Interests .....................................80
Section 7.09 Corporate Trustee Required; Eligibility ...................80
Section 7.10 Resignation and Removal; Appointment of Successor .........80
Section 7.11 Acceptance of Appointment by Successor ....................81
Section 7.12 Merger, Conversion, Consolidation or Succession
to Business ...............................................82
Section 7.13 Preferential Collection of Claims Against the Company .....82
Section 7.14 Appointment of Authenticating Agent .......................82
ARTICLE 8 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND THE COMPANY ..............82
Section 8.01 The Company to Furnish Trustee Names and
Addresses of Holders ......................................82
Section 8.02 Preservation of Information; Communications to
Holders ...................................................83
Section 8.03 Reports by Trustee ........................................83
ARTICLE 9 AMENDMENT, SUPPLEMENT OR WAIVER ....................................83
Section 9.01 Without Consent of Holders ................................83
Section 9.02 With Consent of Holders ...................................84
Section 9.03 Execution of Amendments, Supplements or Waivers ...........85
Section 9.04 Revocation and Effect of Consents .........................85
Section 9.05 Conformity with TIA .......................................86
Section 9.06 Notation on or Exchange of Notes ..........................86
ARTICLE 10 REDEMPTION OF NOTES ...............................................86
Section 10.01 Right of Redemption ......................................86
Section 10.02 Applicability of Article .................................87
Section 10.03 Election to Redeem; Notice to Trustee ....................87
Section 10.04 Selection by Trustee of Notes to Be Redeemed .............87
Section 10.05 Notice of Redemption .....................................87
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Section 10.06 Deposit of Redemption Price ..............................88
Section 10.07 Notes Payable on Redemption Date .........................88
Section 10.08 Notes Redeemed in Part ...................................89
ARTICLE 11 SATISFACTION AND DISCHARGE ........................................89
Section 11.01 Satisfaction and Discharge of Indenture ..................89
Section 11.02 Application of Trust Money ...............................90
ARTICLE 12 DEFEASANCE OR COVENANT DEFEASANCE .................................90
Section 12.01 The Company's Option to Elect Defeasance or
Covenant Defeasance ......................................90
Section 12.02 Defeasance and Discharge .................................90
Section 12.03 Covenant Defeasance ......................................91
Section 12.04 Conditions to Defeasance or Covenant Defeasance ..........91
Section 12.05 Deposited Money and U.S. Government Obligations
To Be Held in Trust; Other Miscellaneous Provisions ......93
Section 12.06 Reinstatement ............................................93
Section 12.07 Repayment to the Company .................................93
ARTICLE 13 NOTE GUARANTEES ...................................................94
Section 13.01 Guarantees Generally .....................................94
Section 13.02 Continuing Guarantees ....................................95
Section 13.03 Release of Note Guarantees ...............................96
Section 13.04 Agreement to Subordinate .................................96
Section 13.05 Waiver of Subrogation ....................................96
Section 13.06 Notation Not Required ....................................97
Section 13.07 Successors and Assigns of the Note Guarantors ............97
Section 13.08 Execution and Delivery of Note Guarantees ................97
Section 13.09 Notices ..................................................97
ARTICLE 14 SUBORDINATION .....................................................97
Section 14.01 Agreement To Subordinate .................................97
Section 14.02 Liquidation, Dissolution, Bankruptcy .....................98
Section 14.03 Default on Senior Indebtedness ...........................98
Section 14.04 Acceleration of Payment of Notes .........................99
Section 14.05 When a Distribution Must Be Paid Over ....................99
Section 14.06 Subrogation ..............................................99
Section 14.07 Relative Rights ..........................................99
Section 14.08 Subordination May Not Be Impaired by Issuers ............100
Section 14.09 Rights of Trustee and Paying Agent ......................100
Section 14.10 Distribution or Notice to Representative ................100
Section 14.11 Article 14 Not To Prevent Events of Default or
Limit Right To Accelerate ...............................100
Section 14.12 Trust Moneys Not Subordinated ...........................100
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Section 14.13 Trustee Entitled To Rely ................................101
Section 14.14 Trustee To Effectuate Subordination .....................101
Section 14.15 Trustee Not Fiduciary for Holders of Senior
Indebtedness ............................................101
Section 14.16 Reliance by Holders of Senior Indebtedness on
Subordination Provisions ................................101
Section 14.17 Trustee's Compensation Not Prejudiced ...................101
ARTICLE 15 SUBORDINATION OF NOTE GUARANTEES .................................102
Section 15.01 Agreement To Subordinate ................................102
Section 15.02 Liquidation, Dissolution, Bankruptcy ....................102
Section 15.03 Default on Guarantor Senior Indebtedness ................102
Section 15.04 Acceleration of Payment of Notes ........................103
Section 15.05 When a Distribution Must Be Paid Over ...................104
Section 15.06 Subrogation .............................................104
Section 15.07 Relative Rights .........................................104
Section 15.08 Subordination May Not Be Impaired by Note
Guarantors ..............................................104
Section 15.09 Rights of Trustee and Paying Agent ......................104
Section 15.10 Distribution or Notice to Representative ................105
Section 15.11 Article 15 Not To Prevent Events of Default or
Limit Right To Accelerate ...............................105
Section 15.12 Trust Moneys Not Subordinated ...........................105
Section 15.13 Trustee Entitled To Rely ................................105
Section 15.14 Trustee To Effectuate Subordination .....................106
Section 15.15 Trustee Not Fiduciary for Holders of Guarantor
Senior Indebtedness .....................................106
Section 15.16 Reliance by Holders of Senior Indebtedness on
Subordination Provisions ................................106
Section 15.17 Trustee's Compensation Not Prejudiced ...................106
Exhibit A Form of Note
Exhibit B Form of Supplemental Indenture
Exhibit C Form of Regulation S Certificate
Exhibit D Form of Certificate of Beneficial Ownership
v
Certain Sections of this Indenture relating to Section 3.10 through 3.18
inclusive of the Trust Indenture Act of 1939:
Trust Indenture Act Section Indenture Section
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ss.3.10(a)(1) .................................... 7.09
(a)(2) .................................... 7.09
(a)(3) .................................... Not Applicable
(a)(4) .................................... Not Applicable
(b) .................................... 7.08
ss.311 (a) .................................... 7.13
(b) .................................... 7.13
(b)(2) .................................... 8.03
8.03
ss.312(a) .................................... 8.01
8.02
(b) .................................... 8.02
(c) .................................... 8.02
ss.313(a) .................................... 8.03
(b) .................................... 8.03
(c) .................................... 8.03
8.03
(d) .................................... 8.03
ss.314(a) .................................... 4.04
(a)(4) .................................... 1.02
4.05
(b) .................................... Not Applicable
(c)(1) .................................... 1.02
(c)(2) .................................... 1.02
(c)(3) .................................... Not Applicable
(d) .................................... Not Applicable
(e) .................................... 1.02
ss.315(a) .................................... 7.01
(b) .................................... 7.02
8.03
(c) .................................... 7.01
(d) .................................... 7.01
(d)(1) .................................... 7.01
(d)(2) .................................... 7.01
(d)(3) .................................... 7.01
(e) .................................... 6.14
ss.316(a) .................................... 1.01
6.12
(a)(1)(A) .................................... 6.02
6.12
(a)(1)(B) .................................... 6.13
(a)(2) .................................... Not Applicable
(b) .................................... 6.08
(c) .................................... 1.04
ss.317(a)(1) .................................... 6.03
(a)(2) .................................... 6.04
(b) .................................... 4.03
ss.318(a) .................................... 1.07
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This cross-reference table shall not for any purpose be deemed to be part of
this Indenture.
vi
INDENTURE, dated as of November 19, 1999 (as amended, supplemented
or otherwise modified from time to time, the "Indenture"), among North American
Van Lines, Inc., a corporation organized under the laws of the State of
Delaware, the Note Guarantors (as defined below) and State Street Bank and Trust
Company, a Massachusetts trust company, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company and the Note Guarantors have duly authorized the
execution and delivery of this Indenture to provide for the issuance of the
Notes and the Note Guarantees.
All things necessary to make the Original Notes, when executed and
delivered by the Company and authenticated and delivered by the Trustee
hereunder and duly issued by the Company, the valid obligation of the Company,
and to make this Indenture a valid agreement of the Company as of the date
hereof, in accordance with the terms of the Original Notes and this Indenture,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, it is mutually agreed, for the equal and ratable
benefit of all Holders of the Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01 Definitions.
"Acquired Debt" means Indebtedness of any Person that is assumed by
the Company or any Restricted Subsidiary in connection with its acquisition of
assets from such Person or any Affiliate thereof or is issued and outstanding on
or prior to the date on which such Person was acquired by the Company or any
Restricted Subsidiary or merged or consolidated with or into the Company or any
Restricted Subsidiary (other than Indebtedness Incurred to finance, or otherwise
in connection with or in contemplation of, such acquisition).
"Additional Assets" means (i) any property or assets that replace
the property or assets that are the subject of an Asset Disposition; (ii) any
property or assets (other than Indebtedness and Capital Stock) to be used by the
Company or a Restricted Subsidiary in a Related Business; (iii) the Capital
Stock of a Person that is engaged in a Related Business and becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the Company
or another Restricted Subsidiary; or (iv) Capital Stock of any Person that at
such time is a Restricted Subsidiary, acquired from a third party.
"Additional Notes" means any notes issued under this Indenture in
addition to the Original Notes (other than any Notes issued pursuant to Section
3.04, 3.05, 3.06, 3.12(c), 3.12(d) or 10.08).
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any moving or storage company or contractor, or other
Person, that provides sales, packing, warehousing, hauling or other services in
connection with the ordinary course of business or operations of the Company or
any of its Subsidiaries, or any Affiliate of any such Agent.
"Agent Guarantee" means any Guarantee by the Company or any
Restricted Subsidiary of Indebtedness or other obligations of any Agent, entered
into in accordance with this Indenture.
"all or substantially all" has the meaning given to such phrase in
the Revised Model Business Corporation Act and commentary thereto.
"Allied Acquisition" means the acquisition of Capital Stock and/or
assets of certain Subsidiaries of NFC plc engaged in moving services businesses
pursuant to the Acquisition Agreement dated as of September 14, 1999 between
Holding and NFC plc, and the other transactions contemplated thereby.
"Asset Disposition" means any sale, lease, transfer or other
disposition of shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares, or (in the case of a Foreign Subsidiary) to the
extent required by applicable law), property or other assets (each referred to
for the purposes of this definition as a "disposition") by the Company or any of
its Restricted Subsidiaries (including any disposition by means of a merger,
consolidation or similar transaction), other than (i) a disposition to the
Company or a Restricted Subsidiary, (ii) a disposition in the ordinary course of
business, (iii) the sale or discount (with or without recourse, and on customary
or commercially reasonable terms) of accounts receivable or notes receivable
arising in the ordinary course of business, or the conversion or exchange of
accounts receivable for notes receivable, (iv) any Restricted Payment
Transactions, (v) a disposition that is governed by the provisions described
under Article 5, (vi) any Financing Disposition, (vii) any "fee in lieu" or
other disposition of assets to any governmental authority or agency that
continue in use by the Company or any Restricted Subsidiary, so long as the
Company or any Restricted Subsidiary may obtain title to such assets upon
reasonable notice by paying a nominal fee, (viii) any exchange of like property
pursuant to Section 1031 (or any successor section) of the Code, (ix) any
financing transaction with respect to property built or acquired by the Company
or any Restricted Subsidiary after the Issue Date, including without limitation
any sale/leaseback transaction or asset securitization, (x) any disposition
arising from foreclosure, condemnation or similar action with respect to any
property or other assets, (xi) any disposition of Capital Stock,
2
Indebtedness or other securities of an Unrestricted Subsidiary, (xii) a
disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement
or other obligation with or to a Person (other than the Company or a Restricted
Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such
Restricted Subsidiary acquired its business and assets (having been newly formed
in connection with such acquisition), entered into in connection with such
acquisition, (xiii) a disposition of not more than 5% of the outstanding Capital
Stock of a Foreign Subsidiary to one or more members of the management of such
Foreign Subsidiary that has been approved by the Board of Directors, or (xiv)
any disposition or series of related dispositions for aggregate consideration
not to exceed $2.5 million.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 7.14 to act on behalf of the Trustee to authenticate Notes
of one or more series.
"Average Life" means, as of the date of determination, with respect
to any Indebtedness or Preferred Stock, the quotient obtained by dividing (i)
the sum of the products of the numbers of years from the date of determination
to the dates of each successive scheduled principal payment of such Indebtedness
or redemption or similar payment with respect to such Preferred Stock multiplied
by the amount of such payment by (ii) the sum of all such payments.
"Bank Indebtedness" means any and all amounts, whether outstanding
on the Issue Date or thereafter incurred, payable under or in respect of the
Senior Credit Facility, including without limitation principal, premium (if
any), interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company or any
Restricted Subsidiary whether or not a claim for post-filing interest is allowed
in such proceedings), fees, charges, expenses, reimbursement obligations,
guarantees, other monetary obligations of any nature and all other amounts
payable thereunder or in respect thereof.
"Board of Directors" means the board of directors or other governing
body of the Company or, if the Company is owned or managed by a single entity,
the board of directors or other governing body of such entity, or, in either
case, any committee thereof duly authorized to act on behalf of such board or
governing body.
"Borrowing Base" means 85% of accounts receivables of the Company
and its Restricted Subsidiaries (determined in accordance with GAAP as of the
end of the most recently ended fiscal quarter for which consolidated financial
statements of the Company are available).
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banking institutions are authorized or required by law
to close in New York City.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligation" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP. The Stated Maturity of any
Capitalized Lease Obligation shall be the date of the last payment of rent or
any other amount due under the related lease.
3
"Cash Equivalents" means any of the following: (a) securities issued
or fully guaranteed or insured by the United States Government or any agency or
instrumentality thereof, (b) time deposits, certificates of deposit or bankers'
acceptances of (i) any lender under the Senior Credit Agreement or (ii) any
commercial bank having capital and surplus in excess of $500,000,000 and the
commercial paper of the holding company of which is rated at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by ▇▇▇▇▇'▇
(or if at such time neither is issuing ratings, then a comparable rating of
another nationally recognized rating agency), (c) commercial paper rated at
least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by ▇▇▇▇▇'▇ (or if at such time neither is issuing ratings, then a
comparable rating of another nationally recognized rating agency) and (d)
investments in money market funds complying with the risk limiting conditions of
Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of
1940, as amended.
"CDR" means ▇▇▇▇▇▇▇, Dubilier & Rice, Inc.
"CDR Fund V" means ▇▇▇▇▇▇▇, Dubilier & Rice Fund V Limited
Partnership, a Cayman Islands exempted limited partnership, and any successor in
interest thereto.
"Change of Control" means:
(i) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), other than one or more Permitted Holders or Holding,
is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of more than 50% of the
total voting power of the Voting Stock of the Company, provided that so
long as the Company is a Subsidiary of Holding, no Person shall be deemed
to be or become a "beneficial owner" of more than 50% of the total voting
power of the Voting Stock of the Company unless such Person shall be or
become a "beneficial owner" of more than 50% of the total voting power of
the Voting Stock of Holding;
(ii) the Company sells or transfers (in one or a series of related
transactions) all or substantially all of the assets of the Company and
its Restricted Subsidiaries to another Person (other than one or more
Permitted Holders or Holding or one or more Subsidiaries thereof); or
(iii) during any period of two consecutive years (during which
period the Company has been a party to this Indenture), individuals who at
the beginning of such period were members of the board of directors of the
Company (together with any new members thereof whose election by such
board of directors or whose nomination for election by holders of Capital
Stock of the Company was approved by one or more Permitted Holders or by a
vote of a majority of the members of such board of directors then still in
office who were either members thereof at the beginning of such period or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of such board of directors
then in office.
"Change of Control Triggering Event" means the occurrence after the
Issue Date of both (a) a Change of Control and (b) the failure of the Notes to
have, on the 30th day after
4
such Change of Control, a rating of at least "BBB-" (or equivalent successor
rating) by S&P and a rating of at least "Baa3" (or equivalent successor rating)
by ▇▇▇▇▇'▇.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means North American Van Lines, Inc., a Delaware
Corporation, and any successor in interest thereto.
"Company Request," "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by an Officer of the Company.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (i) the aggregate amount of Consolidated EBITDA of the Company and
its Restricted Subsidiaries for the period of the most recent four consecutive
fiscal quarters ending prior to the date of such determination for which
consolidated financial statements of the Company are available to (ii)
Consolidated Interest Expense for such four fiscal quarters (in each case,
determined, for each fiscal quarter (or portion thereof) of the four fiscal
quarters ending prior to the Issue Date, on a pro forma basis to give effect to
the Allied Acquisition as if it had occurred at the beginning of such
four-quarter period); provided, that:
(1) if since the beginning of such period the Company or any
Restricted Subsidiary has Incurred any Indebtedness that remains
outstanding on such date of determination or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio is an
Incurrence of Indebtedness, Consolidated EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving effect on a pro
forma basis to such Indebtedness as if such Indebtedness had been Incurred
on the first day of such period (except that in making such computation,
the amount of Indebtedness under any revolving credit facility outstanding
on the date of such calculation shall be computed based on (A) the average
daily balance of such Indebtedness during such four fiscal quarters or
such shorter period for which such facility was outstanding or (B) if such
facility was created after the end of such four fiscal quarters, the
average daily balance of such Indebtedness during the period from the date
of creation of such facility to the date of such calculation),
(2) if since the beginning of such period the Company or any
Restricted Subsidiary has repaid, repurchased, redeemed, defeased or
otherwise acquired, retired or discharged any Indebtedness (each, a
"Discharge") or if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio involves a Discharge of Indebtedness (in
each case other than Indebtedness Incurred under any revolving credit
facility unless such Indebtedness has been permanently repaid),
Consolidated EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving effect on a pro forma basis to such
Discharge of such Indebtedness, including with the proceeds of such new
Indebtedness, as if such Discharge had occurred on the first day of such
period,
(3) if since the beginning of such period the Company or any
Restricted Subsidiary shall have disposed of any company, any business or
any group of assets
5
constituting an operating unit of a business (any such disposition, a
"Sale"), the Consolidated EBITDA for such period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) attributable to the
assets that are the subject of such Sale for such period or increased by
an amount equal to the Consolidated EBITDA (if negative) attributable
thereto for such period and Consolidated Interest Expense for such period
shall be reduced by an amount equal to (A) the Consolidated Interest
Expense attributable to any Indebtedness of the Company or any Restricted
Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired,
retired or discharged with respect to the Company and its continuing
Restricted Subsidiaries in connection with such Sale for such period
(including but not limited to through the assumption of such Indebtedness
by another Person) plus (B) if the Capital Stock of any Restricted
Subsidiary is sold, the Consolidated Interest Expense for such period
attributable to the Indebtedness of such Restricted Subsidiary to the
extent the Company and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such Sale,
(4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger, consolidation or otherwise) shall have
made an Investment in any Person that thereby becomes a Restricted
Subsidiary, or otherwise acquired any company, any business or any group
of assets constituting an operating unit of a business, including any such
Investment or acquisition occurring in connection with a transaction
causing a calculation to be made hereunder (any such Investment or
acquisition, a "Purchase"), Consolidated EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving pro forma effect
thereto (including the Incurrence of any related Indebtedness) as if such
Purchase occurred on the first day of such period, and
(5) if since the beginning of such period any Person became a
Restricted Subsidiary or was merged or consolidated with or into the
Company or any Restricted Subsidiary, and since the beginning of such
period such Person shall have Discharged any Indebtedness or made any Sale
or Purchase that would have required an adjustment pursuant to clause (2),
(3) or (4) above if made by the Company or a Restricted Subsidiary during
such period, Consolidated EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving pro forma effect thereto as
if such Discharge, Sale or Purchase occurred on the first day of such
period.
For purposes of this definition, whenever pro forma effect is to be
given to any Sale, Purchase or other transaction, or the amount of income or
earnings relating thereto and the amount of Consolidated Interest Expense
associated with any Indebtedness Incurred or repaid, repurchased, redeemed,
defeased or otherwise acquired, retired or discharged in connection therewith,
the pro forma calculations in respect thereof may include anticipated cost
savings relating to any such Sale, Purchase or other transaction that the
Company reasonably believes in good faith could have been achieved during the
relevant four quarter period as a result of such Sale, Purchase or other
transaction (provided that both (i) such cost savings were identified and
quantified in an Officer's Certificate delivered to the Trustee at the time of
the consummation of such transaction and (ii) with respect to each such
transaction completed prior to the 90th day preceding the relevant date of
determination, actions were commenced or initiated by the Company within 90 days
of the consummation of such transaction to effect such cost savings identified
in such Officer's Certificate and with respect to any other transaction, such
Officer's
6
Certificate sets forth the specific steps to be taken within the 90 days after
the consummation of such transaction to accomplish such cost savings). If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Indebtedness shall be calculated as if the
rate in effect on the date of determination had been the applicable rate for the
entire period (taking into account any Interest Rate Agreement applicable to
such Indebtedness). If any Indebtedness bears, at the option of the Company or a
Restricted Subsidiary, a rate of interest based on a prime or similar rate, a
eurocurrency interbank offered rate or other fixed or floating rate, and such
Indebtedness is being given pro forma effect, the interest expense on such
Indebtedness shall be calculated by applying such optional rate as the Company
or such Restricted Subsidiary may designate. If any Indebtedness that is being
given pro forma effect was Incurred under a revolving credit facility, the
interest expense on such Indebtedness shall be computed based upon the average
daily balance of such Indebtedness during the applicable period. Interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
determined in good faith by a responsible financial or accounting officer of the
Company to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with GAAP.
"Consolidated EBITDA" means, for any period, the Consolidated Net
Income for such period, plus the following to the extent deducted in calculating
such Consolidated Net Income: (i) provision for all taxes (whether or not paid,
estimated or accrued) based on income, profits or capital, (ii) Consolidated
Interest Expense, (iii) depreciation, amortization (including but not limited to
amortization of goodwill and intangibles and amortization and write-off of
financing costs) and all other non-cash charges or non-cash losses, (iv) any
expenses or charges related to any Equity Offering, Investment or Indebtedness
permitted by this Indenture (whether or not consummated or incurred) and (v) the
amount of any minority interest expense. To the extent Consolidated EBITDA would
otherwise include the amount of any Receivables Fees excluded from Consolidated
Interest Expense pursuant to clause (iii) of the definition of Consolidated
Interest Expense, Consolidated EBITDA shall be reduced by such amount.
"Consolidated Interest Expense" means, for any period, (i) the total
interest expense of the Company and its Restricted Subsidiaries to the extent
deducted in calculating Consolidated Net Income, net of any interest income of
the Company and its Restricted Subsidiaries, including without limitation any
such interest expense consisting of (a) interest expense attributable to
Capitalized Lease Obligations, (b) amortization of debt discount, (c) interest
in respect of Indebtedness of any other Person that has been Guaranteed by the
Company or any Restricted Subsidiary of the Company (other than Indebtedness
Guaranteed under any Management Guarantee or Agent Guarantee, except to the
extent the interest thereon is actually being paid by the Company or a
Restricted Subsidiary thereof), (d) non-cash interest expense, (e) the interest
portion of any deferred payment obligation, and (f) commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, plus (ii) dividends paid in cash in respect of
Disqualified Stock of the Company or a Restricted Subsidiary or in respect of
Preferred Stock of a Restricted Subsidiary of the Company and minus (iii) to the
extent otherwise included in such interest expense referred to in clause (i)
above, Receivables Fees and amortization or write-off of financing costs, in
each case under clauses (i) through (iii) as determined on a Consolidated basis
in accordance with GAAP; provided, that gross interest expense shall be
determined after giving effect to any net payments made or received by the
Company and its Restricted Subsidiaries with respect to Interest Rate
Agreements.
7
"Consolidated Net Income" means, for any period, the net income
(loss) of the Company and its Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP and before any reduction in respect
of Preferred Stock dividends; provided, that there shall not be included in such
Consolidated Net Income:
(i) any net income (loss) of any Person if such Person is not a
Restricted Subsidiary, except that (A) subject to the limitations
contained in clause (iv) below, the Company's equity in the net income of
any such Person for such period shall be included in such Consolidated Net
Income up to the aggregate amount actually distributed by such Person
during such period to the Company or a Restricted Subsidiary of the
Company as a dividend or other distribution (subject, in the case of a
dividend or other distribution to a Restricted Subsidiary of the Company,
to the limitations contained in clause (iii) below) and (B) the Company's
equity in the net loss of such Person shall be included to the extent of
the aggregate Investment of the Company or any of its Restricted
Subsidiaries in such Person,
(ii) any net income (loss) of any Person acquired by the Company or
a Restricted Subsidiary of the Company in a pooling of interests
transaction for any period prior to the date of such acquisition,
(iii) any net income (loss) of any Restricted Subsidiary of the
Company if such Restricted Subsidiary is subject to restrictions, directly
or indirectly, on the payment of dividends or the making of similar
distributions by such Restricted Subsidiary, directly or indirectly, to
the Company by operation of the terms of such Restricted Subsidiary's
charter or any agreement, instrument, judgment, decree, order, statute or
governmental rule or regulation applicable to such Restricted Subsidiary
or its stockholders (other than (x) restrictions that have been waived or
otherwise released, (y) restrictions pursuant to the Notes or this
Indenture and (z) restrictions in effect on the Issue Date with respect to
a Restricted Subsidiary and other restrictions with respect to such
Restricted Subsidiary that taken as a whole are not materially less
favorable to the Noteholders than such restrictions in effect on the Issue
Date), except that (A) subject to the limitations contained in clause (iv)
below, the Company's equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of any dividend or distribution that was
or that could have been made by such Restricted Subsidiary during such
period to the Company or another Restricted Subsidiary of the Company
(subject, in the case of a dividend that could have been made to another
Restricted Subsidiary, to the limitation contained in this clause) and (B)
the net loss of such Restricted Subsidiary shall be included to the extent
of the aggregate Investment of the Company or any of its other Restricted
Subsidiaries in such Restricted Subsidiary,
(iv) any gain or loss realized upon the sale or other disposition of
any asset of the Company or any Restricted Subsidiary of the Company
(including pursuant to any sale/leaseback transaction) that is not sold or
otherwise disposed of in the ordinary course of business (as determined in
good faith by the Board of Directors),
8
(v) any item classified as an extraordinary, unusual or nonrecurring
gain, loss or charge (including without limitation (a) any compensation
expense for stock options that will be cashed out, converted, exchanged or
otherwise retired in connection with the Allied Acquisition, (b) any
charge or expense incurred for employee bonuses in connection with the
Allied Acquisition, and (c) fees, expenses and charges associated with the
Allied Acquisition or any acquisition, merger or consolidation after the
Issue Date),
(vi) the cumulative effect of a change in accounting principles,
(vii) all deferred financing costs written off and premiums paid in
connection with any early extinguishment of Indebtedness,
(viii) any unrealized gains or losses in respect of Currency
Agreements,
(ix) any unrealized foreign currency transaction gains or losses in
respect of Indebtedness of any Person denominated in a currency other than
the functional currency of such Person, and
(x) any non-cash compensation charge arising from any grant of
stock, stock options or other equity based awards.
In the case of any unusual or nonrecurring gain, loss or charge not
included in Consolidated Net Income pursuant to clause (v) above in any
determination thereof, the Company will deliver an Officer's Certificate to the
Trustee promptly after the date on which Consolidated Net Income is so
determined, setting forth the nature and amount of such unusual or nonrecurring
gain, loss or charge.
"Consolidated Tangible Assets" means, as of any date of
determination, the total assets less the total intangible assets (including,
without limitation, goodwill) shown on the consolidated balance sheet of the
Company and its Restricted Subsidiaries as of the most recent date for which
such a balance sheet is available, determined on a consolidated basis in
accordance with GAAP (and, in the case of any determination relating to any
Incurrence of Indebtedness or any Investment, on a pro forma basis including any
property or assets being acquired in connection therewith).
"Consolidation" means the consolidation of the accounts of each of
the Restricted Subsidiaries with those of the Company in accordance with GAAP;
provided that "Consolidation" will not include consolidation of the accounts of
any Unrestricted Subsidiary, but the interest of the Company or any Restricted
Subsidiary in any Unrestricted Subsidiary will be accounted for as an
investment. The term "Consolidated" has a correlative meaning.
"Corporate Trust Office" means the office of the Trustee in Boston,
Massachusetts, at which at any particular time its corporate trust business
shall be administered, which office on the Issue Date is located at ▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
9
"Credit Facilities" means, one or more of (x) the Senior Credit
Facility and (y) other facilities or arrangements, in each case with one or more
banks or other institutions providing for revolving credit loans, term loans,
receivables financings (including without limitation through the sale of
receivables to such institutions or to special purpose entities formed to borrow
from such institutions against such receivables), letters of credit or other
Indebtedness, in each case, including all agreements, instruments and documents
executed and delivered pursuant to or in connection with any of the foregoing,
in each case as the same may be amended, supplemented, waived or otherwise
modified from time to time, or refunded, refinanced, restructured, replaced,
renewed, repaid, increased or extended from time to time (whether in whole or in
part, whether with the original banks or other institutions or other banks or
other institutions or otherwise, and whether provided under any original Credit
Facility or one or more other credit agreements, indentures, financing
agreements or other Credit Facilities or otherwise). Without limiting the
generality of the foregoing, the term "Credit Facility" shall include any
agreement (i) changing the maturity of any Indebtedness incurred thereunder or
contemplated thereby, (ii) adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness
incurred thereunder or available to be borrowed thereunder or (iv) otherwise
altering the terms and conditions thereof.
"Currency Agreement" means, in respect of a Person, any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangements (including derivative agreements or arrangements), as to which such
Person is a party or a beneficiary.
"Default" means any event or condition that is, or after notice or
passage of time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Designated Noncash Assets" means any non-cash consideration
received by the Company or one of its Restricted Subsidiaries in connection with
an Asset Disposition that is designated as Designated Noncash Assets pursuant to
an Officer's Certificate executed by the principal financial officer of the
Company or such Restricted Subsidiary. Such Officer's Certificate shall state
the basis of valuation of such consideration which shall be the good faith
determination of the Board of Directors. The fair market value of each
outstanding item of Designated Noncash Assets shall equal its value measured at
the time received and without giving effect to subsequent changes in value, less
the amount of cash or Cash Equivalents received upon any subsequent sale or
other disposition of any portion thereof; provided that such cash and Cash
Equivalents are applied in accordance with Section 4.10, to the extent required
thereby.
"Designated Senior Indebtedness" means (i) the Bank Indebtedness and
(ii) any other Senior Indebtedness that, at the date of determination, has an
aggregate principal amount equal to or under which, at the date of
determination, the holders thereof are committed to lend up to, at least $25.0
million and is specifically designated by the Company in an agreement or
instrument evidencing or governing such Senior Indebtedness as "Designated
Senior Indebtedness" for purposes of this Indenture.
10
"Disinterested Director" means, with respect to any Affiliate
Transaction, a member of the Board of Directors having no material direct or
indirect financial interest in or with respect to such Affiliate Transaction. A
member of the Board of Directors shall not be deemed to have such a financial
interest by reason of such member's holding Capital Stock of the Company or
Holding or any options, warrants or other rights in respect of such Capital
Stock.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock (other than Management Stock) that by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) is
convertible or exchangeable for Indebtedness or Disqualified Stock or (iii) is
redeemable at the option of the holder thereof, in whole or in part, in each
case on or prior to the 91st day following the final Stated Maturity of the
Notes. Notwithstanding the preceding sentence, (a) any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof have the right
to require the Company to repurchase such Capital Stock upon the occurrence of
an event described therein as a change of control or an asset sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 4.08; and
(b) any Capital Stock that would constitute Disqualified Stock solely because
such Capital Stock is issued pursuant to any plan for the benefit of employees
and may be required to be repurchased by the Company in order to satisfy
applicable regulatory obligations shall not constitute Disqualified Stock.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
other than a Foreign Subsidiary.
"Equity Offering" means a sale of Capital Stock (other than
Disqualified Stock) (x) that is a sale of Capital Stock of the Company, or (y)
proceeds of which in an amount equal to or exceeding the Redemption Amount are
contributed to the Company or any of its Restricted Subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the Company's 13 3/8% Senior Subordinated
Notes Due 2009, containing terms substantially identical to the Initial Notes
or any Initial Additional Notes (except that (i) such Exchange Notes shall
not contain terms with respect to transfer restrictions and shall be
registered under the Securities Act, and (ii) certain provisions relating to
an increase in the stated rate of interest thereon shall be eliminated), that
are issued and exchanged for (a) the Initial Notes, as provided for in a
registration rights agreement relating to such Initial Notes and this
Indenture, or (b) such Initial Additional Notes as may be provided in any
registration rights agreement relating to such Additional Notes and this
Indenture (including any amendment or supplement hereto).
"Financing Disposition" means any sale, transfer, conveyance or
other disposition of property or assets by the Company or any Subsidiary thereof
to any Receivables Entity, or by any Receivables Subsidiary, in each case in
connection with the Incurrence by a Receivables
11
Entity of Indebtedness, or obligations to make payments to the obligor on
Indebtedness, which may be secured by a Lien in respect of such property or
assets.
"Foreign Subsidiary" means (a) any Restricted Subsidiary of the
Company that is not organized under the laws of the United States of America or
any state thereof or the District of Columbia and (b) any Restricted Subsidiary
of the Company that has no material assets other than securities of one or more
Foreign Subsidiaries, and other assets relating to an ownership interest in any
such securities or Subsidiaries.
"Foreign Subsidiary Coverage Ratio" as of any date of determination
means the ratio of (i) the combined portion attributable to Foreign
Subsidiaries, taken as a whole, of the aggregate amount of Consolidated EBITDA
of the Company and its Restricted Subsidiaries for the period of the most recent
four consecutive fiscal quarters ending prior to the date of such determination
for which consolidated financial statements of the Company are available to (ii)
the combined portion attributable to Foreign Subsidiaries, taken as a whole, of
Consolidated Interest Expense for such four fiscal quarters, all calculated
after giving effect to all intercompany eliminations applied in preparing the
relevant consolidated financial statements of the Company (and without giving
effect to clause (iii) of the definition of the term Consolidated Net Income as
it relates to restrictions on the payment of dividends or the making of similar
distributions by any Foreign Subsidiary to the Company or any Domestic
Subsidiary, but giving effect to such clause as it relates to any such
restrictions on the payment of dividends or the making of similar distributions
by any Foreign Subsidiary to another Foreign Subsidiary), and otherwise in
accordance with the definition of the term "Coverage Ratio" (including but not
limited to in accordance with all pro forma and other adjustments provided for
in such definition).
"GAAP" means generally accepted accounting principles in the United
States of America as in effect on the Issue Date (for purposes of the
definitions of the terms "Consolidated Coverage Ratio," "Foreign Subsidiary
Coverage Ratio," "Consolidated EBITDA," "Consolidated Interest Expense,"
"Consolidated Net Income" and "Consolidated Tangible Assets," all defined terms
in this Indenture to the extent used in or relating to any of the foregoing
definitions, and all ratios and computations based on any of the foregoing
definitions) and as in effect from time to time (for all other purposes of this
Indenture), including those set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession. All ratios and computations
based on GAAP contained in this Indenture shall be computed in conformity with
GAAP.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person; provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor Designated Senior Indebtedness" means, with respect to
any Guarantor, (i) the Indebtedness of such Guarantor in respect of Bank
Indebtedness and (ii) any
12
other Guarantor Senior Indebtedness of such Guarantor that, at the date of
determination, has an aggregate principal amount equal to or under which, at the
date of determination, the holders thereof are committed to lend up to, at least
$10.0 million and is specifically designated by such Guarantor in an agreement
or instrument evidencing or governing such Guarantor Senior Indebtedness as
"Guarantor Designated Senior Indebtedness" for purposes of this Indenture.
"Guarantor Senior Indebtedness" means, with respect to any Note
Guarantor, the following obligations, whether outstanding on the date hereof or
hereafter issued, without duplication: (i) any Guarantee of Bank Indebtedness by
such Note Guarantor and all other Guarantees by such Note Guarantor of Senior
Indebtedness of the Company or Guarantor Senior Indebtedness of any other Note
Guarantor; (ii) all obligations in respect of any Receivables Financing; and
(iii) all obligations consisting of the principal of and premium, if any, and
accrued and unpaid interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Note
Guarantor regardless of whether post-filing interest is allowed in such
proceeding) on, and fees and other amounts owing in respect of, all other
Indebtedness of the Note Guarantor, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that the obligations in respect of such Indebtedness are not
senior in right of payment to the obligations of such Note Guarantor under its
Note Guarantee; provided, however, that Guarantor Senior Indebtedness shall not
include (1) any obligations of such Note Guarantor to the Company or any other
Subsidiary of the Company, (2) any liability for Federal, state, local, foreign
or other taxes owed or owing by such Note Guarantor, (3) any accounts payable or
other liability to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities), (4)
any Indebtedness of such Note Guarantor (or Guarantee by such Note Guarantor of
Indebtedness) that is expressly subordinated in right of payment to any other
Indebtedness of such Note Guarantor (or Guarantee by such Note Guarantor of
Indebtedness), (5) any Capital Stock of such Note Guarantor or (6) that portion
of any Indebtedness of such Note Guarantor that is Incurred by such Note
Guarantor in violation of Section 4.06 (but no such violation shall be deemed to
exist for purposes of this clause (6) if any holder of such Indebtedness or such
holder's representative shall have received an Officer's Certificate to the
effect that such Incurrence of such Indebtedness does not (or that the
Incurrence by such Note Guarantor of the entire committed amount thereof at the
date on which the initial borrowing thereunder is made would not) violate
Section 4.06 ). If any Guarantor Senior Indebtedness is disallowed, avoided or
subordinated pursuant to the provisions of Section 548 of Title 11 of the United
States Code or any applicable state fraudulent conveyance law, such Guarantor
Senior Indebtedness nevertheless will constitute Guarantor Senior Indebtedness.
"Guarantor Senior Subordinated Indebtedness" means, with respect to
a Note Guarantor, (i) the obligations of such Note Guarantor under its Note
Guarantee and (ii) any other Indebtedness of such Note Guarantor that ranks pari
passu in right of payment with the obligations of such Note Guarantor under its
Note Guarantee.
"Guarantor Subordinated Obligations" means, with respect to a Note
Guarantor, any Indebtedness of such Note Guarantor (whether outstanding on the
Issue Date or thereafter Incurred) that is expressly subordinated in right of
payment to the obligations of such Note Guarantor under the Note Guarantee
pursuant to a written agreement.
13
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered in the Note Register.
"Holding" means NA Holding Corporation, a Delaware corporation, and
any successor in interest thereto.
"Holding Expenses" means (i) costs (including all professional fees
and expenses) incurred by Holding to comply with its reporting obligations under
federal or state laws or under this Indenture or the Holding Notes, including
any reports filed with respect to the Securities Act, Exchange Act or the
respective rules and regulations promulgated thereunder, (ii) indemnification
obligations of Holding owing to directors, officers, employees or other Persons
under its charter or by-laws or pursuant to written agreements with any such
Person, (iii) fees and expenses payable by Holding in connection with the
Transactions, (iv) other operational expenses of Holding incurred in the
ordinary course of business, (v) expenses incurred by Holding in connection with
any public offering of Capital Stock or Indebtedness (x) where the net proceeds
of such offering are intended to be received by or contributed or loaned to the
Company or a Restricted Subsidiary, or (y) in a prorated amount of such expenses
in proportion to the amount of such net proceeds intended to be so received,
contributed or loaned, or (z) otherwise on an interim basis prior to completion
of such offering so long as Holding shall cause the amount of such expenses to
be repaid to the Company or the relevant Restricted Subsidiary out of the
proceeds of such offering promptly if completed, and (vi) interest payments on
the Holding Loan for any period or portion thereof ending on or prior to
December 31, 1999.
"Holding Loan" means $40.0 million in aggregate principal amount of
Indebtedness Incurred by Holding in connection with the Transactions.
"Holding Notes" means the senior discount notes due 2009 issued (or
any Indebtedness in lieu thereof Incurred) by Holding on the Issue Date, and any
refinancing in respect thereof, together with any agreement or instrument
evidencing, governing or otherwise relating to any of the foregoing.
"Holding Stock Issuance" means one or more issuances by Holding,
subsequent to the Issue Date, of Capital Stock of Holding for gross proceeds of
not less than $40.0 million in the aggregate.
"Incur" means issue, assume, enter into any Guarantee of, incur or
otherwise become liable for; provided, however, that any Indebtedness or Capital
Stock of a Person existing at the time such Person becomes a Subsidiary (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Subsidiary at the time it becomes a Subsidiary. Accrual of
interest, the accretion of accreted value and the payment of interest in the
form of additional Indebtedness will not be deemed to be an Incurrence of
Indebtedness. Any Indebtedness issued at a discount (including Indebtedness on
which interest is payable through the issuance of additional Indebtedness) shall
be deemed Incurred at the time
14
of original issuance of the Indebtedness at the initial accreted amount thereof.
The term "Incurrence" shall have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(i) the principal of indebtedness of such Person for borrowed money,
(ii) the principal of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments,
(iii) all reimbursement obligations of such Person in respect of
letters of credit or other similar instruments (the amount of such
obligations being equal at any time to the aggregate then undrawn and
unexpired amount of such letters of credit or other instruments plus the
aggregate amount of drawings thereunder that have not then been
reimbursed),
(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property (except Trade Payables), which purchase price
is due more than one year after the date of placing such property in final
service or taking final delivery and title thereto,
(v) all Capitalized Lease Obligations of such Person,
(vi) the redemption, repayment or other repurchase amount of such
Person with respect to any Disqualified Stock of such Person or (if such
Person is a Subsidiary of the Company other than a Note Guarantor) any
Preferred Stock of such Subsidiary, but excluding, in each case, any
accrued dividends (the amount of such obligation to be equal at any time
to the maximum fixed involuntary redemption, repayment or repurchase price
for such Capital Stock, or if less (or if such Capital Stock has no such
fixed price), to the involuntary redemption, repayment or repurchase price
therefor calculated in accordance with the terms thereof as if then
redeemed, repaid or repurchased, and if such price is based upon or
measured by the fair market value of such Capital Stock, such fair market
value shall be as determined in good faith by the Board of Directors or
the board of directors or other governing body of the issuer of such
Capital Stock),
(vii) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by such
Person; provided, that the amount of Indebtedness of such Person shall be
the lesser of (A) the fair market value of such asset at such date of
determination (as determined in good faith by the Company) and (B) the
amount of such Indebtedness of such other Persons,
(viii) Guarantees of all Indebtedness of other Persons to the extent
so Guaranteed by such Person, and
(ix) to the extent not otherwise included in this definition, net
Hedging Obligations of such Person (the amount of any such obligation to
be equal at any time to
15
the termination value of such agreement or arrangement giving rise to such
Hedging Obligation that would be payable by such Person at such time).
The amount of Indebtedness of any Person at any date shall be
determined as set forth above or otherwise provided in this Indenture, or
otherwise shall equal the amount thereof that would appear on a balance sheet of
such Person (excluding any notes thereto) prepared in accordance with GAAP.
"Initial Additional Notes" means Additional Notes issued in an
offering not registered under the Securities Act.
"Initial Notes" means the Company's 13 3/8% Senior Subordinated
Notes due 2009, issued on the Issue Date pursuant to this Indenture (and any
Notes issued in respect thereof pursuant to Section 3.04, 3.05, 3.06,
3.12(c), 3.12(d) or 10.08).
"Interest Payment Date" means, when used with respect to any Note
and any installment of interest thereon, the date specified in such Note as the
fixed date on which such installment of interest is due and payable, as set
forth in such Note.
"Interest Rate Agreement" means, with respect to any Person, any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement (including derivative agreements or
arrangements), as to which such Person is party or a beneficiary.
"Inventory" means goods held for sale or lease by a Person in the
ordinary course of business, net of any reserve for goods that have been
segregated by such Person to be returned to the applicable vendor for credit, as
determined in accordance with GAAP.
"Investment" in any Person by any other Person means any direct or
indirect advance, loan or other extension of credit (other than to customers,
suppliers, Agents, directors, officers or employees of any Person in the
ordinary course of business) or capital contribution (by means of any transfer
of cash or other property to others or any payment for property or services for
the account or use of others) to, or any purchase or acquisition of Capital
Stock, Indebtedness or other similar instruments issued by, such Person. For
purposes of the definition of "Unrestricted Subsidiary" and Section 4.08, (i)
"Investment" shall include the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of any
Subsidiary of the Company at the time that such Subsidiary is designated an
Unrestricted Subsidiary, provided that upon a redesignation of such Subsidiary
as a Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary in an amount (if positive)
equal to (x) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (y) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time of such redesignation, (ii) any property transferred to
or from an Unrestricted Subsidiary shall be valued at its fair market value at
the time of such transfer, and (iii) in each case under clause (i) or (ii)
above, fair market value shall be as determined in good faith by the Board of
Directors. A Guarantee shall not be deemed to be or give rise to an
16
Investment until such Guarantee is funded (in whole or in part). The amount of
any Investment outstanding at any time shall be the original cost of such
Investment, reduced (at the Company's option) by any dividend, distribution,
interest payment, return of capital, repayment or other amount or value received
in respect of such Investment; provided, that to the extent that the amount of
Restricted Payments outstanding at any time is so reduced by any portion of any
such amount or value that would otherwise be included in the calculation of
Consolidated Net Income, such portion of such amount or value shall not be so
included for purposes of calculating the amount of Restricted Payments that may
be made pursuant to paragraph (a) of Section 4.08.
"Investors" means CDR Fund V.
"Issue Date" means the first date on which Notes are issued.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Management Advances" means (1) loans or advances made to directors,
officers or employees of Holding, the Company or any Restricted Subsidiary (x)
in respect of travel, entertainment or moving-related expenses incurred in the
ordinary course of business, (y) in respect of moving-related expenses incurred
in connection with any closing or consolidation of any facility, or (z) in the
ordinary course of business and (in the case of this clause (z)) not exceeding
$2.5 million in the aggregate outstanding at any time, (2) promissory notes of
Management Investors acquired in connection with the issuance of Management
Stock to such Management Investors, (3) loans to Management Investors of funds
applied to purchase Management Stock in an aggregate principal amount not
exceeding $10.0 million outstanding at any time (less the aggregate principal
amount of then outstanding borrowings by Management Investors then guaranteed by
the Company pursuant to clause (x) of the definition of Management Guarantees),
(4) Management Guarantees, or (5) other Guarantees of borrowings by Management
Investors in connection with the purchase of Management Stock, which Guarantees
are permitted under Section 4.06.
"Management Agreements" means, collectively, the Consulting
Agreement, dated as of March 30, 1998, among Holding, the Company and CDR (and,
in each case, its respective permitted successors and assigns thereunder) and
the Indemnification Agreement, dated as of March 30, 1998, among Holding, the
Company, CDR and the Investors (and, in each case, its respective permitted
successors and assigns thereunder) as each may be amended, supplemented, waived
or otherwise modified from time to time in accordance with the terms thereof and
of this Indenture.
"Management Guarantees" means guarantees (x) of up to an aggregate
principal amount of $10.0 million of borrowings by Management Investors in
connection with their purchase of Management Stock outstanding at any time (less
the aggregate principal amount of then outstanding loans made to Management
Investors by the Company pursuant to clause (3) of the definition of Management
Advances) or (y) made on behalf of, or in respect of loans or advances made to,
directors, officers or employees of Holding, the Company or any Restricted
Subsidiary (1) in respect of travel, entertainment and moving-related expenses
incurred in the
17
ordinary course of business, or (2) in the ordinary course of business and (in
the case of this clause (2)) not exceeding $2.5 million in the aggregate
outstanding at any time.
"Management Investors" means the officers, directors, employees and
other members of the management of Holding, the Company or any of their
respective Subsidiaries (or of any Agent), or family members or relatives
thereof, or trusts or partnerships for the benefit of any of the foregoing, or
any of their heirs, executors, successors and legal representatives, or any
Agent, who at any date beneficially own or have the right to acquire, directly
or indirectly, Capital Stock of the Company or Holding.
"Management Stock" means Capital Stock of the Company or Holding
(including any options, warrants or other rights in respect thereof) held by any
of the Management Investors.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and its successors.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only as
and when received, but excluding any other consideration received in the form of
assumption by the acquiring person of Indebtedness or other obligations relating
to the properties or assets that are the subject of such Asset Disposition or
received in any other non-cash form) therefrom, in each case net of (i) all
legal, title and recording tax expenses, commissions and other fees and expenses
incurred, and all Federal, state, provincial, foreign and local taxes required
to be paid or accrued as a liability under GAAP, as a consequence of such Asset
Disposition (including as a consequence of any transfer of funds in connection
with the application thereof in accordance with Section 4.10), (ii) all payments
made, and all installment payments required to be made, on any Indebtedness that
is secured by any assets subject to such Asset Disposition, in accordance with
the terms of any Lien upon such assets, or that must by its terms, or in order
to obtain a necessary consent to such Asset Disposition, or by applicable law,
be repaid out of the proceeds from such Asset Disposition, (iii) all
distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Disposition,
or to any other Person (other than the Company or a Restricted Subsidiary)
owning a beneficial interest in the assets disposed of in such Asset Disposition
and (iv) any liabilities or obligations associated with the assets disposed of
in such Asset Disposition and retained by the Company or any Restricted
Subsidiary after such Asset Disposition, including without limitation pension
and other post-employment benefit liabilities, liabilities related to
environmental matters, and liabilities relating to any indemnification
obligations associated with such Asset Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of any
securities of the Company or any Subsidiary by the Company or any Subsidiary, or
any capital contribution, means the cash proceeds of such issuance, sale or
contribution net of attorneys' fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees actually incurred in connection with such issuance, sale or
contribution and net of taxes paid or payable as a result thereof.
18
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Note Guarantee" means any of (i) the guarantees of the Notes by the
Domestic Subsidiaries party to this Indenture entered into on the date hereof,
and (ii) any guarantee that may from time to time be entered into by a
Restricted Subsidiary of the Company pursuant to Section 4.13.
"Note Guarantor" means any of (i) Fleet Insurance Management, Inc.,
an Indiana corporation, FrontRunner Worldwide, Inc., a Delaware corporation,
NACAL, Inc., a California corporation, NAVTRANS International Freight
Forwarding, Inc., an Indiana corporation, North American Distribution Systems,
Inc., an Indiana corporation, North American Logistics, Ltd., an Indiana
corporation, North American Van Lines of Texas, Inc., a Texas corporation,
Relocation Management Systems, Inc., a Delaware corporation, Great Falls North
American, Inc., a Montana corporation, Vanguard Insurance Agency, Inc., an
Illinois corporation, Allied Freight Forwarding, Inc., a Delaware corporation, A
Relocation Solutions Management Company, a Delaware corporation, Allied
International, N.A., Inc., a Delaware corporation, Allied Van Lines, Inc., a
Delaware corporation, and Allied Van Lines Terminal Company, a Delaware
corporation, or (ii) any other Restricted Subsidiary of the Company that enters
into a Note Guarantee.
"Notes" means the Initial Notes, any Additional Notes, and the
Exchange Notes.
"Officer" means, with respect to the Company or any other obligor
upon the Notes, the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Financial Officer, any Vice President, the Controller, the
Treasurer or the Secretary (a) of such Person or (b) if such Person is owned or
managed by a single entity, of such entity (or any other individual designated
as an "Officer" for the purposes of this Indenture by the Board of Directors).
"Officer's Certificate" means, with respect to the Company or any
other obligor upon the Notes, a certificate signed by one Officer of such
Person.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Notes" means the Initial Notes and any Exchange Notes
issued in exchange therefor.
"Outstanding" when used with respect to Notes means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
in trust for the Holders of such Notes, provided that, if such Notes are
to be redeemed, notice of such
19
redemption has been duly given pursuant to this Indenture or provision
therefor reasonably satisfactory to the Trustee has been made; and
(iii) Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture.
A Note does not cease to be Outstanding because the Company or any
Affiliate of the Company holds the Note, provided that in determining whether
the Holders of the requisite amount of Outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Notes
owned by the Company or any Affiliate of the Company shall be disregarded and
deemed not to be Outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which the
Trustee actually knows are so owned shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the reasonable satisfaction of the Trustee the pledgee's right to
act with respect to such Notes and that the pledgee is not the Company or an
Affiliate of the Company.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Company.
"Permitted Holder" means any of the following: (i) any of the
Investors, Management Investors, CDR and their respective Affiliates; (ii) any
investment fund or vehicle managed, sponsored or advised by CDR; and (iii) any
Person acting in the capacity of an underwriter in connection with a public or
private offering of Capital Stock of Holding or the Company.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in, or consisting of, any of the following:
(i) a Restricted Subsidiary, the Company, or a Person that will,
upon the making of such Investment, become a Restricted Subsidiary;
(ii) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, or is liquidated into, the Company or
a Restricted Subsidiary;
(iii) Temporary Cash Investments or Cash Equivalents;
(iv) receivables owing to the Company or any Restricted Subsidiary,
if created or acquired in the ordinary course of business;
(v) any securities or other Investments received as consideration
in, or retained in connection with, sales or other dispositions of
property or assets, including Asset Dispositions made in compliance with
Section 4.10;
(vi) securities or other Investments received in settlement of debts
created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary,
20
or as a result of foreclosure, perfection or enforcement of any Lien, or
in satisfaction of judgments, including in connection with any bankruptcy
proceeding or other reorganization of another Person;
(vii) Investments in existence or made pursuant to legally binding
written commitments in existence on the Issue Date;
(viii) Currency Agreements, Interest Rate Agreements and related
Hedging Obligations, which obligations are Incurred in compliance with
Section 4.06;
(ix) pledges or deposits (x) with respect to leases or utilities
provided to third parties in the ordinary course of business or (y)
otherwise described in the definition of "Permitted Liens" or made in
connection with Liens permitted under Section 4.12;
(x) Investments in joint ventures or similar entities that are not
Restricted Subsidiaries, or in any Related Business, in an aggregate
amount outstanding at any time not to exceed the greater of (x) $15.0
million and (y) 2.5% of Consolidated Tangible Assets;
(xi) (1) Investments in any Receivables Subsidiary, or in connection
with a Financing Disposition by or to any Receivables Entity, including
Investments of funds held in accounts permitted or required by the
arrangements governing such Financing Disposition or any related
Indebtedness, or (2) any promissory note issued by the Company or Holding,
provided that if Holding receives cash from the relevant Receivables
Entity in exchange for such note, an equal cash amount is contributed by
Holding to the Company;
(xii) bonds secured by assets leased to and operated by the Company
or any Restricted Subsidiary that were issued in connection with the
financing of such assets so long as the Company or any Restricted
Subsidiary may obtain title to such assets at any time by paying a nominal
fee, canceling such bonds and terminating the transaction;
(xiii) Notes;
(xiv) any Investment to the extent made using Capital Stock of the
Company (other than Disqualified Stock), or Capital Stock of Holding, as
consideration;
(xv) Management Advances and payments in respect thereof;
(xvi) Agent Guarantees in an aggregate principal amount not
exceeding $10.0 million outstanding at any time and payments in respect
thereof; and
(xvii) other Investments in an aggregate amount outstanding at any
time not to exceed $10.0 million.
21
"Permitted Junior Securities" means:
(a) debt securities of the Company as reorganized or readjusted, if
applicable, and guaranteed by the Note Guarantors, or debt securities of the
Company (or any other company, trust or organization provided for by a plan of
reorganization or readjustment succeeding to the assets and liabilities of the
Company) and guaranteed by the Note Guarantors, in each of the foregoing cases,
which securities and guarantees are subordinated, to at least the same extent as
the Notes and the Note Guarantees, to the payment of all Senior Indebtedness and
guarantees thereof that will be outstanding after giving effect to such
reorganization or readjustment, if applicable, so long as (i) such debt
securities are not entitled to the benefit of covenants or defaults more
beneficial to the holders of such debt securities than those in effect with
respect to the Notes (or the Senior Indebtedness, after giving effect to such
reorganization or readjustment, if applicable) and (ii) such debt securities
shall not provide for amortization--including sinking fund and mandatory
prepayment provisions (other than a mandatory prepayment of the type described
in Section 4.14)--commencing prior to the date which is one year after the final
scheduled maturity date of the Senior Indebtedness (as modified by such
reorganization or readjustment, if applicable), or
(b) Capital Stock in the Company or any Note Guarantor;
provided, that in each case with respect to clauses (a) and (b)
above, if a new corporation results from any such reorganization or
readjustment, such corporation assumes all Senior Indebtedness that will be
outstanding after giving effect thereto and provided further, that the rights of
the holders of Senior Indebtedness are not impaired.
"Permitted Liens" means:
(a) Liens for taxes, assessments or other governmental charges not
yet delinquent or the nonpayment of which in the aggregate would not reasonably
be expected to have a material adverse effect on the Company and its Restricted
Subsidiaries, or that are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on the
books of the Company or a Subsidiary thereof, as the case may be, in accordance
with GAAP;
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary course of
business in respect of obligations that are not overdue for a period of more
than 60 days, or that are bonded or that are being contested in good faith and
by appropriate proceedings;
(c) pledges, deposits or Liens in connection with workers'
compensation, unemployment insurance and other social security and other similar
legislation or other insurance-related obligations (including, without
limitation, pledges or deposits securing liability to insurance carriers under
insurance or self-insurance arrangements);
(d) pledges, deposits or Liens to secure the performance of bids,
tenders, trade, government or other contracts (other than for borrowed money),
obligations for utilities, leases, licenses, statutory obligations, completion
guarantees, surety, judgment, appeal or
22
performance bonds, other similar bonds, instruments or obligations, and other
obligations of a like nature incurred in the ordinary course of business;
(e) easements (including reciprocal easement agreements),
rights-of-way, building, zoning and similar restrictions, utility agreements,
covenants, reservations, restrictions, encroachments, changes, and other similar
encumbrances or title defects incurred, or leases or subleases granted to
others, in the ordinary course of business, which do not in the aggregate
materially interfere with the ordinary conduct of the business of the Company
and its Subsidiaries, taken as a whole;
(f) Liens existing on, or provided for under written arrangements
existing on, the Issue Date, or (in the case of any such Liens securing
Indebtedness of the Company or any of its Subsidiaries existing or arising under
written arrangements existing on the Issue Date) securing any Refinancing
Indebtedness in respect of such Indebtedness so long as the Lien securing such
Refinancing Indebtedness is limited to all or part of the same property or
assets (plus improvements, accessions, proceeds or dividends or distributions in
respect thereof) that secured (or under such written arrangements could secure)
the original Indebtedness;
(g) (i) mortgages, liens, security interests, restrictions,
encumbrances or any other matters of record that have been placed by any
developer, landlord or other third party on property over which the Company or
any Restricted Subsidiary of the Company has easement rights or on any leased
property and subordination or similar agreements relating thereto and (ii) any
condemnation or eminent domain proceedings affecting any real property;
(h) Liens securing Hedging Obligations, Purchase Money Obligations
or Capitalized Lease Obligations Incurred in compliance with Section 4.06;
(i) Liens arising out of judgments, decrees, orders or awards in
respect of which the Company shall in good faith be prosecuting an appeal or
proceedings for review, which appeal or proceedings shall not have been finally
terminated, or if the period within which such appeal or proceedings may be
initiated shall not have expired;
(j) leases, subleases, licenses or sublicenses to third parties;
(k) Liens securing (1) Indebtedness Incurred in compliance with
clause (b)(i), (b)(iv), (b)(v), (b)(vii) or (b)(viii)(F) of Section 4.06, (2)
Bank Indebtedness, (3) commercial bank Indebtedness, (4) the Notes or (5)
Indebtedness or other obligations of any Receivables Entity;
(l) Liens existing on property or assets of a Person at the time
such Person becomes a Subsidiary of the Company (or at the time the Company or a
Restricted Subsidiary acquires such property or assets); provided, however, that
such Liens are not created in connection with, or in contemplation of, such
other Person becoming such a Subsidiary (or such acquisition of such property or
assets), and that such Liens are limited to all or part of same property or
assets (plus improvements, accessions, proceeds or dividends or distributions in
respect thereof) that secured (or, under the written arrangements under which
such Liens arose, could secure) the obligations to which such Liens relate;
23
(m) Liens on Capital Stock or other securities of an Unrestricted
Subsidiary that secure Indebtedness or other obligations of such Unrestricted
Subsidiary;
(n) any encumbrance or restriction (including, but not limited to,
put and call agreements) with respect to Capital Stock of any joint venture or
similar arrangement pursuant to any joint venture or similar agreement; and
(o) Liens securing Refinancing Indebtedness Incurred in respect of
any Indebtedness secured by, or securing any refinancing, refunding, extension,
renewal or replacement (in whole or in part) of any other obligation secured by,
any other Permitted Liens, provided that any such new Lien is limited to all or
part of the same property or assets (plus improvements, accessions, proceeds or
dividends or distributions in respect thereof) that secured (or, under the
written arrangements under which the original Lien arose, could secure) the
obligations to which such Liens relate.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means a city or any political subdivision thereof
referred to in Article 3 and initially designated under Section 4.02.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Note shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Note.
"Preferred Stock" as applied to the Capital Stock of any corporation
means Capital Stock of any class or classes (however designated) that by its
terms is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Purchase Money Obligations" means any Indebtedness Incurred to
finance or refinance the acquisition, leasing, construction or improvement of
property (real or personal) or assets, and whether acquired through the direct
acquisition of such property or assets or the acquisition of the Capital Stock
of any Person owning such property or assets, or otherwise.
"QIB" or "Qualified Institutional Buyer" means a "qualified
institutional buyer," as that term is defined in Rule 144A under the Securities
Act.
"Qualified Proceeds" means property or assets that are used, usable
or useful in, or a majority of the Voting Stock of any Person engaged in, a
Related Business; provided that the fair market value of any such assets or
Capital Stock shall be determined by the Board of Directors in good faith.
24
"Receivable" means a right to receive payment arising from a sale or
lease of goods or services by a Person pursuant to an arrangement with another
Person pursuant to which such other Person is obligated to pay for goods or
services under terms that permit the purchase of such goods and services on
credit, as determined in accordance with GAAP.
"Receivables Entity" means (x) any Receivables Subsidiary or (y) any
other Person that is engaged in the business of acquiring, selling, collecting,
financing or refinancing Receivables, accounts (as defined in the Uniform
Commercial Code as in effect in any jurisdiction from time to time), other
accounts and/or other receivables, and/or related assets.
"Receivables Fees" means distributions or payments made directly or
by means of discounts with respect to any participation interest issued or sold
in connection with, and other fees paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Financing.
"Receivables Financing" means any financing of Receivables of the
Company or any Restricted Subsidiary that have been transferred to a Receivables
Entity in a Financing Disposition.
"Receivables Repurchase Obligation" means any obligation of a seller
of receivables to repurchase receivables (including Receivables, accounts (as
defined in the Uniform Commercial Code as in effect in any jurisdiction from
time to time) and other accounts and receivables (including any thereof
constituting or evidenced by chattel paper, instruments or general intangibles))
arising as a result of a breach of a representation, warranty or covenant or
otherwise, including as a result of a receivable or portion thereof becoming
subject to any asserted defense, dispute, off-set or counterclaim of any kind as
a result of any action taken by, any failure to take action by or any other
event relating to the seller.
"Receivables Subsidiary" means a Subsidiary of the Company that (a)
is engaged solely in the business of acquiring, selling, collecting, financing
or refinancing Receivables, accounts (as defined in the Uniform Commercial Code
as in effect in any jurisdiction from time to time) and other accounts and
receivables (including any thereof constituting or evidenced by chattel paper,
instruments or general intangibles), all proceeds thereof and all rights
(contractual and other), collateral and other assets relating thereto, and any
business or activities incidental or related to such business, and (b) is
designated as a "Receivables Subsidiary" by the Board of Directors.
"Redemption Date" when used with respect to any Note to be redeemed
or purchased means the date fixed for such redemption or purchase by or pursuant
to this Indenture and the Notes.
"Redemption Price" when used with respect to any Note to be redeemed
or purchased means the price at which it is to be redeemed or purchased pursuant
to this Indenture and the Notes.
"refinance" means refinance, refund, replace, renew, repay, modify,
restate, defer, substitute, supplement, reissue, resell or extend (including
pursuant to any defeasance or
25
discharge mechanism); and the terms "refinances," "refinanced" and "refinancing"
as used for any purpose in this Indenture shall have a correlative meaning.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refinance any Indebtedness existing on the date of this Indenture or Incurred in
compliance with this Indenture (including Indebtedness of the Company that
refinances Indebtedness of any Restricted Subsidiary (to the extent permitted in
this Indenture) and Indebtedness of any Restricted Subsidiary that refinances
Indebtedness of another Restricted Subsidiary) including Indebtedness that
refinances Refinancing Indebtedness; provided, that (1) if the Indebtedness
being refinanced is Subordinated Obligations or Guarantor Subordinated
Obligations, the Refinancing Indebtedness has an Average Life at the time such
Refinancing Indebtedness is Incurred that is equal to or greater than the
Average Life of the Indebtedness being refinanced, (2) such Refinancing
Indebtedness is Incurred in an aggregate principal amount (or if issued with
original issue discount, an aggregate issue price) that is equal to or less than
the sum of (x) the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding of the Indebtedness
being refinanced, plus (y) fees, underwriting discounts, premiums and other
costs and expenses incurred in connection with such Refinancing Indebtedness and
(3) Refinancing Indebtedness shall not include (x) Indebtedness of a Restricted
Subsidiary that is not a Note Guarantor that refinances Indebtedness of the
Company or a Note Guarantor that was incurred by the Company or a Note Guarantor
pursuant to paragraph (a) of Section 4.06 or (y) Indebtedness of the Company or
a Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the date specified for that purpose in Section 3.01.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially in the
form attached hereto as Exhibit C.
"Related Business" means those businesses in which the Company or
any of its Subsidiaries is engaged on the date of this Indenture, or that are
related, complementary, incidental or ancillary thereto or extensions,
developments or expansions thereof.
"Related Taxes" means (x) any taxes, charges or assessments,
including but not limited to sales, use, transfer, rental, ad valorem,
value-added, stamp, property, consumption, franchise, license, capital, net
worth, gross receipts, excise, occupancy, intangibles or similar taxes, charges
or assessments (other than federal, state or local taxes measured by income and
federal, state or local withholding imposed on payments made by Holding),
required to be paid by Holding by virtue of its being incorporated or having
Capital Stock outstanding (but not by virtue of owning stock or other equity
interests of any corporation or other entity other than the Company or any of
its Subsidiaries), or being a holding company parent of the Company or receiving
dividends from or other distributions in respect of the Capital Stock of the
Company, or having guaranteed any obligations of the Company or any Subsidiary
thereof, or having made any payment in respect of any of the items for which the
Company is permitted to make payments to Holding pursuant to Section 4.08, or
(y) any other federal, state, foreign, provincial
26
or local taxes measured by income for which Holding is liable up to an amount
not to exceed with respect to such federal taxes the amount of any such taxes
that the Company would have been required to pay on a separate company basis or
on a consolidated basis if the Company had filed a consolidated return on behalf
of an affiliated group (as defined in Section 1504 of the Code, or an analogous
provision of state, local or foreign law) of which it were the common parent, or
with respect to state and local taxes, on a combined basis if the Company had
filed a combined return on behalf of an affiliated group consisting only of the
Company and its Subsidiaries, or (z) any federal, state, foreign, provincial or
local withholding taxes paid by Holding by virtue of any dividend distributions
in respect of the Preferred Stock issued in the Allied Acquisition (other than
any such dividend distributions paid in cash).
"Representative" means the trustee, agent or representative (if any)
for an issue of Senior Indebtedness (with respect to any Senior Indebtedness) or
(b) Guarantor Senior Indebtedness (with respect to any Guarantor Senior
Indebtedness).
"Resale Restriction Termination Date" means, with respect to any
Note, the date that is two years (or such other period as may hereafter be
provided under Rule 144(k) under the Securities Act or any successor provision
thereto as permitting the resale by non-affiliates of Restricted Securities
without restriction) after the later of the original issue date in respect of
such Note and the last date on which the Company or any Affiliate of the Company
was the owner of such Note (or any Predecessor Note thereto).
"Restricted Payment Transaction" means any Restricted Payment
permitted pursuant to Section 4.08, any Permitted Payment, any Permitted
Investment, or any transaction specifically excluded from the definition of the
term "Restricted Payment."
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to receive, at its request, and conclusively rely on an Opinion of
Counsel with respect to whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company secured
by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Agreement" means the credit agreement dated as of
November 19, 1999, among the Company, any Subsidiaries of the Company party
thereto from time to time, the banks and other financial institutions party
thereto from time to time, Banc of America Securities LLC, as syndication agent,
and The Chase Manhattan Bank as collateral agent and administrative agent, as
such agreement may be assumed by any successor in interest, and as such
agreement may be amended, supplemented, waived or otherwise modified from time
to time, or refunded, refinanced, restructured, replaced, renewed, repaid,
increased or extended from time to time
27
(whether in whole or in part, whether with the original agent and lenders or
other agents and lenders or otherwise, and whether provided under the original
Senior Credit Agreement or otherwise).
"Senior Credit Facility" means the collective reference to the
Senior Credit Agreement, any Loan Documents (as defined therein), any notes and
letters of credit issued pursuant thereto and any guarantee and collateral
agreement, patent and trademark security agreement, mortgages, letter of credit
applications and other guarantees, pledge agreements, security agreements and
collateral documents, and other instruments and documents, executed and
delivered pursuant to or in connection with any of the foregoing, in each case
as the same may be amended, supplemented, waived or otherwise modified from time
to time, or refunded, refinanced, restructured, replaced, renewed, repaid,
increased or extended from time to time (whether in whole or in part, whether
with the original agent and lenders or other agents and lenders or otherwise,
and whether provided under the original Senior Credit Agreement or one or more
other credit agreements, indentures (including this Indenture) or financing
agreements or otherwise). Without limiting the generality of the foregoing, the
term "Senior Credit Facility" shall include any agreement (i) changing the
maturity of any Indebtedness incurred thereunder or contemplated thereby, (ii)
adding Subsidiaries of the Company as additional borrowers or guarantors
thereunder, (iii) increasing the amount of Indebtedness incurred thereunder or
available to be borrowed thereunder or (iv) otherwise altering the terms and
conditions thereof.
"Senior Indebtedness" means, with respect to the Company, the
following obligations, whether outstanding on the date hereof or hereafter
issued, without duplication: (i) all Bank Indebtedness, (ii) all obligations in
respect of any Receivables Financing, and (iii) all obligations consisting of
the principal of and premium, if any, and accrued and unpaid interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company regardless of whether post-filing
interest is allowed in such proceeding) on, and fees and other amounts owing in
respect of, all other Indebtedness of the Company, unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is expressly provided that the obligations in respect of such Indebtedness are
not senior in right of payment to the Notes; provided, however, that Senior
Indebtedness shall not include (1) any obligation of the Company to any
Subsidiary, (2) any liability for Federal, state, foreign, local or other taxes
owed or owing by the Company, (3) any accounts payable or other liability to
trade creditors arising in the ordinary course of business (including Guarantees
thereof or instruments evidencing such liabilities), (4) any Indebtedness of the
Company (or Guarantee by the Company of any Indebtedness) that is expressly
subordinated in right of payment to any other Indebtedness of the Company (or
Guarantee by the Company of any Indebtedness), (5) any Capital Stock of the
Company or (6) that portion of any Indebtedness of the Company that is Incurred
by the Company in violation of Section 4.06 (but no such violation shall be
deemed to exist for purposes of this clause (6) if any holder of such
Indebtedness or such holder's representative shall have received an Officer's
Certificate of the Company to the effect that such Incurrence of such
Indebtedness does not (or that the Incurrence by the Company of the entire
committed amount thereof at the date on which the initial borrowing thereunder
is made would not) violate Section 4.06). If any Senior Indebtedness is
disallowed, avoided or subordinated pursuant to the provisions of Section 548 of
Title 11 of the United States Code or any applicable state fraudulent conveyance
law, such Senior Indebtedness nevertheless will constitute Senior Indebtedness.
28
"Senior Subordinated Indebtedness" means the Notes and any other
Indebtedness of the Company that ranks pari passu with the Notes.
"Significant Subsidiary" means any Restricted Subsidiary that would
be a "significant subsidiary" of the Company within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC, as in effect on the Issue Date.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
"S&P" means Standard & Poor's Ratings Service, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"Standard Receivable Obligations" means representations, warranties,
covenants, indemnities and other obligations (including Guarantees and
Indebtedness) that are reasonably customary in connection with a Financing
Disposition (as determined by the Company in good faith), including, without
limitation, those relating to the servicing of the assets of a Receivables
Entity, it being understood that any Receivables Repurchase Obligation shall be
deemed to be a Standard Receivable Obligation.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency).
"Subordinated Obligations" means any Indebtedness of the Company
(whether outstanding on the date of this Indenture or thereafter Incurred) that
is expressly subordinated in right of payment to the Notes pursuant to a written
agreement.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other equity interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such Person
or (ii) one or more Subsidiaries of such Person.
"Tax Sharing Agreement" means the Tax Sharing Agreement, dated as of
the Issue Date, between the Company and Holding, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance with
the terms thereof and of this Indenture.
"Temporary Cash Investments" means any of the following: (i) any
investment in (x) direct obligations of the United States of America or any
agency or instrumentality thereof or obligations Guaranteed by the United States
of America or any agency or instrumentality thereof, or (y) direct obligations
of any foreign country recognized by the United States of America rated at least
"A" by S&P or "A-1" by ▇▇▇▇▇'▇ (or, in either case, the equivalent of such
rating by such organization or, if no rating of S&P or ▇▇▇▇▇'▇ then exists, the
equivalent of such rating by
29
any nationally recognized rating organization), (ii) overnight bank deposits,
and investments in time deposit accounts, certificates of deposit, bankers'
acceptances and money market deposits (or, with respect to foreign banks,
similar instruments) maturing not more than one year after the date of
acquisition thereof issued by (x) any lender under the Senior Credit Agreement
or (y) a bank or trust company that is organized under the laws of the United
States of America, any state thereof or any foreign country recognized by the
United States of America having capital and surplus aggregating in excess of
$250 million (or the foreign currency equivalent thereof) and whose long term
debt is rated at least "A" by S&P or "A-1" by ▇▇▇▇▇'▇ (or, in either case, the
equivalent of such rating by such organization or, if no rating of S&P or
▇▇▇▇▇'▇ then exists, the equivalent of such rating by any nationally recognized
rating organization) at the time such Investment is made, (iii) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (i) or (ii) above entered into with a bank meeting
the qualifications described in clause (ii) above, (iv) investments in
commercial paper, maturing not more than 270 days after the date of acquisition,
issued by a Person (other than the Company or any of its Subsidiaries), with a
rating at the time as of which any Investment therein is made of "P-2" (or
higher) according to ▇▇▇▇▇'▇ or "A-2" (or higher) according to S&P (or, in
either case, the equivalent of such rating by such organization or, if no rating
of S&P or ▇▇▇▇▇'▇ then exists, the equivalent of such rating by any nationally
recognized rating organization), (v) Investments in securities maturing not more
than one year after the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A" by S&P
or "A" by ▇▇▇▇▇'▇ (or, in either case, the equivalent of such rating by such
organization or, if no rating of S&P or ▇▇▇▇▇'▇ then exists, the equivalent of
such rating by any nationally recognized rating organization), (vi) investment
funds investing 95% of their assets in securities of the type described in
clauses (i)-(v) above (which funds may also hold reasonable amounts of cash
pending investment and/or distribution, (vii) any money market deposit accounts
issued or offered by a domestic commercial bank or a commercial bank organized
and located in a country recognized by the United States of America, in each
case, having capital and surplus in excess of $250 million (or the foreign
currency equivalent thereof), or investments in money market funds complying
with the risk limiting conditions of Rule 2a-7 (or any successor rule) of the
SEC under the Investment Company Act of 1940, as amended, or (viii) similar
short-term investments approved by the Board of Directors in the ordinary course
of business.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇.
77aaa-7bbbb) as in effect on the date of this Indenture.
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
"Transactions" means, collectively, the Allied Acquisition, the
offering and issuance of the Notes and the Holding Notes, the initial borrowings
under the Senior Credit Facility, the issuance by Holding of Capital Stock as
part of the consideration for the Allied Acquisition, the Holding Stock Issuance
and all other related transactions
30
"Treasury Rate" means, with respect to a Redemption Date, the yield
to maturity at the time of computation of United States Treasury securities with
a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15(519) that has become publicly available at
least two Business Days prior to such Redemption Date (or, if such Statistical
Release is no longer published, any publicly available source or similar market
data)) most nearly equal to the period from such Redemption Date to May 15,
2003; provided, however, that if the period from such Redemption Date to May 15,
2003 is not equal to the constant maturity of the United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be
obtained by linear interpolation (calculated to the nearest one-twelfth of a
year) from the weekly average yields of United States securities for which such
yields are given, except that if the period from such Redemption Date to May 15,
2003 is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year shall be
used.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
that at the time of determination is an Unrestricted Subsidiary, as designated
by the Board of Directors in the manner provided below, and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors may designate any
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property of, the Company or any other
Restricted Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated; provided, that either (A) the Subsidiary to be so
designated has total consolidated assets of $1,000 or less or (B) if such
Subsidiary has consolidated assets greater than $1,000, then such designation
would be permitted under Section 4.08. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that
immediately after giving effect to such designation either (x) the Company could
incur at least $1.00 of additional Indebtedness under paragraph (a) of Section
4.06 or (y) the Consolidated Coverage Ratio would be greater than it was
immediately prior to giving effect to such designation. Any such designation by
the Board of Directors shall be evidenced to the Trustee by promptly filing with
the Trustee a copy of the resolution of the Company's Board of Directors giving
effect to such designation and an Officer's Certificate of the Company
certifying that such designation complied with the foregoing provisions.
"U.S. Government Obligation" means (x) any security that is (i) a
direct obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (ii) an
obligation 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 under the preceding clause (i) or (ii),
is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in
31
Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation that is specified in clause (x) above and held by such
bank for the account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any U.S. Government
Obligation that is so specified and held, 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 depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal or interest evidenced by such depositary receipt.
"Vice President" when used with respect to any Person means any vice
president of such Person, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" of an entity means all classes of Capital Stock of
such entity then outstanding and normally entitled to vote in the election of
directors or all interests in such entity with the ability to control the
management or actions of such entity.
32
Section 1.02 Other Definitions.
Defined in
Term Section
---- -------
"Act"................................................ 1.08
"Affiliate Transaction".............................. 4.11
"Agent Members"...................................... 3.12
"Amendment".......................................... 4.09
"Authentication Order"............................... 3.03
"Bankruptcy Law"..................................... 6.01
"Blockage Notice".................................... 14.03
"Covenant Defeasance"................................ 12.03
"Custodian".......................................... 6.01
"Defaulted Interest"................................. 3.07
"Defeasance"......................................... 12.02
"Defeased Notes"..................................... 12.01
"Event of Default"................................... 6.01
"Expiration Date".................................... 1.08
"Global Notes"....................................... 2.01
"Guaranteed Obligations"............................. 13.01
"Guarantor Blockage Notice".......................... 15.03
"Guarantor Non-payment Default"...................... 15.03
"Guarantor Payment Blockage Period".................. 15.03
"Guarantor Payment Default".......................... 15.03
"Initial Agreement".................................. 4.09
"Initial Lien"....................................... 4.12
"Non-payment Default"................................ 14.03
"Note Register" and "Note Registrar"................. 3.05
"Offer".............................................. 4.10
"Offshore Global Note"............................... 2.01
"Offshore Note Exchange Date"........................ 3.13
"Offshore Physical Note"............................. 2.01
"pay its Note Guarantee"............................. 15.03
"pay the Notes"...................................... 14.03
"Payment Blockage Period"............................ 14.03
"Payment Default".................................... 14.03
"Permitted Payment".................................. 4.08
"Physical Notes"..................................... 2.01
"Private Placement Legend"........................... 2.03
"Redemption Amount".................................. 10.01
"Refinancing Agreement".............................. 4.09
"Restricted Payment"................................. 4.08
"Sale"............................................... 1.01
"Successor Company".................................. 5.01
"Unitary Global Note"................................ 2.01
"U.S. Global Note"................................... 2.01
"U.S. Physical Notes"................................ 2.01
33
Section 1.03 Rules of Construction. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Indenture have the meanings assigned
to them in this Indenture;
(2) "or" is not exclusive;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(5) all references to "$" or "dollars" shall refer to the lawful
currency of the United States of America;
(6) the words "include," "included" and "including" as used herein
shall be deemed in each case to be followed by the phrase "without
limitation," if not expressly followed by such phrase or the phrase "but
not limited to";
(7) words in the singular include the plural, and words in the
plural include the singular; and
(8) any reference to a Section or Article refers to such Section or
Article of this Indenture.
Section 1.04 Incorporation by Reference of TIA. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. This Indenture is subject to the
mandatory provisions of the TIA, which are incorporated by reference in and made
a part of this Indenture. Any terms incorporated by reference in this Indenture
that are defined by the TIA, defined by any TIA reference to another statute or
defined by SEC rule under the TIA, have the meanings so assigned to them
therein. The following TIA terms have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" 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 and any
other obligor on the Notes.
34
Section 1.05 Conflict with TIA. If any provision hereof limits,
qualifies or conflicts with a provision of the TIA that is required under the
TIA to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the TIA that may be so modified or excluded, the latter provision shall be
deemed (i) to apply to this Indenture as so modified or (ii) to be excluded, as
the case may be.
Section 1.06 Compliance Certificates and Opinions. Upon any
application or request by the Company or by any other obligor upon the Notes
(including any Note Guarantor) to the Trustee to take any action under any
provision of this Indenture, the Company or such other obligor upon the Notes,
as the case may be, shall furnish to the Trustee such certificates and opinions
as may be required under the TIA. Each such certificate or opinion shall be
given in the form of one or more Officer's Certificates, if to be given by an
Officer, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the TIA and any other requirements set forth in this
Indenture. Notwithstanding the foregoing, in the case of any such request or
application as to which the furnishing of any Officer's Certificate or Opinion
of Counsel is specifically required by any provision of this Indenture relating
to such particular request or application, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 4.05) shall include:
(9) a statement that the individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(10) 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;
(11) a statement that, in the opinion of such individual, he or she
made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(12) a statement as to whether, in the opinion of such individual,
such condition or covenant has been complied with.
Section 1.07 Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
35
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an Officer or Officers to the effect that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.08 Acts of Noteholders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 7.01) conclusive in favor of the Trustee, the
Company and any other obligor upon the Notes, if made in the manner provided in
this Section 1.08.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership or
other entity, on behalf of such corporation or partnership or other entity, such
certificate or affidavit shall also constitute sufficient proof of such Person's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the person executing the same, may also be proved in any
other manner that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note shall bind the Holder of every
Note issued upon the transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done or suffered to be done by the Trustee, the
Company or any other obligor upon the Notes in reliance thereon, whether or not
notation of such action is made upon such Note.
(e) (i) The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Notes entitled to give, make or
take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Notes, provided that the Company may
not set a record date for, and the provisions of this paragraph shall not
36
apply with respect to, the giving or making of any notice, declaration,
request or direction referred to in subclause (e)(ii) of this Section
1.08. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Notes on such record date (or their duly designated proxies),
and no other Holders, shall be entitled to take the relevant action,
whether or not such Persons remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Notes on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount
of Outstanding Notes on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Notes in the manner set forth in Section
1.10.
(ii) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Notes entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 6.02, (iii) any request to institute
proceedings referred to in Section 6.07(2) or (iv) any direction referred
to in Section 6.12, in each case with respect to Notes. If any record date
is set pursuant to this paragraph, the Holders of Outstanding Notes on
such record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall
be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of
Outstanding Notes on such record date. Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically
and with no action by any Person be cancelled and of no effect), and
nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Notes on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Trustee, at the Company's expense,
shall cause notice of such record date, the proposed action by Holders and
the applicable Expiration Date to be given to the Company in writing and
to each Holder of Notes in the manner set forth in Section 1.10.
(iii) With respect to any record date set pursuant to this Section
1.08, the party hereto that sets such record dates may designate any day
as the "Expiration Date" and from time to time may change the Expiration
Date to any earlier or later day; provided that no such change shall be
effective unless notice of the proposed new Expiration Date is given to
the Company or the Trustee, whichever such party is not setting a record
date pursuant to this Section 1.08(e) in writing, and to each Holder of
Notes in the manner set forth in Section 1.10, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to
any record date set pursuant to this Section, the party
37
hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date
as provided in this paragraph. Notwithstanding the foregoing, no
Expiration Date shall be later than the 180th day after the applicable
record date.
(iv) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Note may do so
with regard to all or any part of the principal amount of such Note or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
Section 1.09 Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any other obligor
upon the Notes shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at State
Street Bank and Trust Company, Corporate Trust Department, 2 Avenue de
Lafayette, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ or at any other address
furnished in writing to the Company by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder if in writing and mailed, first-class postage
prepaid, to the Company c/o North American Van Lines, Inc., ▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇ ▇▇ West, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Chief Financial Officer (telephone: (▇▇▇) ▇▇▇-▇▇▇▇; telecopier: (219)
429-1704), with copies to North American Van Lines, Inc., ▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇ ▇▇ West, P.O. Box 988, Fort ▇▇▇▇▇, Indiana, Attention: General
Counsel (telephone: (▇▇▇) ▇▇▇-▇▇▇▇); telecopier: (▇▇▇) ▇▇▇-▇▇▇▇) and
Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq. (telephone: (▇▇▇) ▇▇▇-▇▇▇▇; telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇), or at any other address previously furnished in writing
to the Trustee by the Company.
Section 1.10 Notices to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at such
Holder's address as it appears in the Note Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
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In case, by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail notice of any event as
required by any provision of this Indenture, then such notification as shall be
made with the approval of the Trustee (such approval not to be unreasonably
withheld) shall constitute a sufficient notification for every purpose
hereunder.
Section 1.11 Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 1.12 Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its respective successors and assigns,
whether so expressed or not.
Section 1.13 Separability Clause. In case any provision in this
Indenture or in 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.
Section 1.14 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Paying Agent and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture,
except as provided in Article 14 and Article 15.
Section 1.15 GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT
THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY. THE TRUSTEE, THE COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND
(BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS, AGREE TO SUBMIT TO THE
JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH
OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 1.16 Legal Holidays. In any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Note shall not be a Business Day
at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Notes) payment of interest or principal and premium (if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity.
Section 1.17 No Personal Liability of Directors, Officers,
Employees, Incorporators and Stockholders. No director, officer, employee,
incorporator, member or stockholder, as such, of the Company, any Note Guarantor
or any Subsidiary of any thereof shall have any liability for any obligation of
the Company or any Note Guarantor under this Indenture, the Notes or any Note
Guarantee, or for any claim based on, in respect of, or by reason of, any
39
such obligation or its creation. Each Noteholder, by accepting the Notes, waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 1.18 Exhibits and Schedules. All exhibits and schedules
attached hereto are by this reference made a part hereof with the same effect as
if herein set forth in full.
Section 1.19 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
NOTE FORMS
Section 2.01 Forms Generally. The Notes and the Trustee's
certificate of authentication relating thereto shall be in substantially the
forms set forth, or referenced, in this Article 2 and Exhibit A annexed hereto,
which Exhibit is hereby incorporated in and expressly made a part of this
Indenture. The Notes may have such appropriate insertions, omissions,
substitutions, notations, legends, endorsements, identifications and other
variations as are required or permitted by law, stock exchange rule or
Depository rule or usage, agreements to which the Company is subject, if any, or
other customary usage, or as may consistently herewith be determined by the
Officer or member of the Company executing such Notes, as evidenced by such
execution (provided always that any such notation, legend, endorsement,
identification or variation is in a form acceptable to the Company). Each Note
shall be dated the date of its authentication. The terms of the Notes set forth
in Exhibit A are part of the terms of this Indenture. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling. Any portion of
the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
Initial Notes and any Additional Notes offered and sold in reliance
on Rule 144A under the Securities Act shall, unless the Company otherwise
notifies the Trustee in writing, be issued in the form of one or more permanent
global Notes in substantially the form set forth in Exhibit A (each, a "U.S.
Global Note"), deposited with the Trustee, as custodian for the Depositary or
its nominee, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of a U.S. Global Note may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Initial Notes and any Additional Notes offered and sold in offshore
transactions in reliance on Regulation S under the Securities Act shall be
issued in the form of one or more permanent global Notes in substantially the
form set forth in Exhibit A (each, an "Offshore Global Note"), deposited with
the Trustee, as custodian for the Depositary or its nominee, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of an Offshore Global Note, if any, may from time to
time be increased or decreased by adjustments made in the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
40
Subject to the limitations on the issuance of certificated Notes set
forth in Sections 3.12 and 3.13, Initial Notes and any Initial Additional Notes
issued pursuant to Section 3.05 in exchange for or upon transfer of beneficial
interests (x) in a U.S. Global Note shall be in the form of permanent
certificated Notes substantially in the form set forth in Exhibit A and shall
contain the Private Placement Legend as set forth in Section 2.03 (the "U.S.
Physical Notes") or (y) in an Offshore Global Note (if any), on or after the
Offshore Note Exchange Date with respect to such Offshore Global Note, shall be
in the form of permanent certificated Notes substantially in the form set forth
in Exhibit A (the "Offshore Physical Notes"), respectively, as hereinafter
provided.
The Offshore Physical Notes and the U.S. Physical Notes are
sometimes collectively herein referred to as the "Physical Notes." The U.S.
Global Notes and the Offshore Global Notes are sometimes collectively referred
to as the "Global Notes."
Exchange Notes shall be issued substantially in the form set forth
in Exhibit A and, subject to Section 3.12(b), shall be in the form of one or
more Global Notes.
Section 2.02 Form of Trustee's Certificate of Authentication.
This is one of the Notes referred to in the within-mentioned
Indenture.
_______________________,
as Trustee
By____________________
Authorized Officer
Dated:
If an appointment of an Authenticating Agent is made pursuant to
Section 7.14, the Notes may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternative certificate of authentication in
the following form:
This is one of the Notes referred to in the within-mentioned
Indenture.
_______________________
As Trustee
By_____________________
As Authenticating Agent
By_____________________
Authorized Officer
Dated:
Section 2.03 Restrictive and Global Note Legends. Each Global Note
and Physical Note shall bear the following legend set forth below (the "Private
Placement Legend") on the face thereof until the Private Placement Legend is
removed in accordance with Section 3.13(4):
41
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND HAS
NOT BEEN REGISTERED UNDER ANY STATE SECURITIES LAWS, AND THIS NOTE
(AND ANY INTEREST OR PARTICIPATION HEREIN) MAY NOT BE OFFERED, SOLD,
ASSIGNED, PLEDGED, ENCUMBERED OR OTHERWISE TRANSFERRED OR DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A")) OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION AND (2)
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OR DISPOSED OF
ONLY (I) INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN A
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (IV)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR (V) TO THE COMPANY, IN EACH OF CASES (I) THROUGH (IV) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (X) PURSUANT TO CLAUSE
(II) OR (III) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION
42
SATISFACTORY TO EACH OF THEM, AND (Y) IN THE CASE OF ANY OF THE
FOREGOING CLAUSES (I) THROUGH (V), TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE
TRUSTEE, THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTION
REFERRED TO ABOVE. AS USED HEREIN, THE TERMS "UNITED STATES,"
"OFFSHORE TRANSACTION" AND "U.S. PERSON" HAVE THE RESPECTIVE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Each Global Note, whether or not an Initial Note, shall also bear
the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN SECTIONS 3.12 AND 3.13 OF THE
INDENTURE.
43
ARTICLE 3
THE NOTES
Section 3.01 Title and Terms. The aggregate principal amount of
Notes that may be authenticated and delivered and Oustanding under this
Indenture is limited to $300,000,000, except for Notes authenticated and
delivered upon registration of transfer thereof, or in exchange for, or in lieu
of, other Notes pursuant to Section 3.04, 3.05, 3.06, 3.12(c), 3.12(d),
3.13(1)(c), 9.06 and 10.08. The Initial Notes will be issued in an aggregate
principal amount of $150,000,000. All the Original Notes shall vote and consent
together on all matters as one class, and none of the Original Notes will have
the right to vote or consent as a class separate from one another on any matter.
Additional Notes (including any Exchange Notes issued in exchange therefor) may
vote as a class with the other Notes and otherwise be treated as Notes for
purposes of this Indenture.
The Notes shall be known and designated as the "13 3/8% Senior
Subordinated Notes due 2009" of the Company. The final Stated Maturity of the
Notes shall be December 1, 2009. Interest on the Outstanding principal amount of
Notes will accrue at the rate of 13 3/8% per annum and will be payable
semi-annually in arrears on June 1 and December 1 in each year, commencing on
June 1, 2000, to holders of record on the immediately preceding May 15 and
November 15, respectively (each such May 15 and November 15, a "Regular Record
Date"). Interest on the Original Notes will accrue from the most recent date to
which interest has been paid or duly provided for or, if no interest has been
paid, from the Issue Date; and interest on any Additional Notes (and Exchange
Notes issued in exchange therefor) will accrue from the most recent date to
which interest has been paid or duly provided for or, if no interest has been
paid on such Additional Notes, from the date of issuance of such Additional
Notes; provided, that if any Note is surrendered for exchange on or after a
record date for an Interest Payment Date that will occur on or after the date of
such exchange, interest on the Note received in exchange thereof will accrue
from the date of such Interest Payment Date.
The principal of, and premium, if any, and interest, on the Notes
shall be payable at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York or the corporate trust
office of an affiliate of the Paying Agent in New York City (the "Place of
Payment"); provided, however, that at the option of the Company payment of
interest on a Note may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Note Register, or, if a
Holder has given wire instructions to the Company, by wire transfer to a United
States dollar account maintained by the Holder with a bank located in New York
City.
Section 3.02 Denominations. The Notes shall be issuable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof.
Section 3.03 Execution, Authentication and Delivery and Dating. The
Notes shall be executed on behalf of the Company by one Officer of the Company.
The signature of such Officer on the Notes may be manual or facsimile.
44
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication; and the Trustee shall authenticate and deliver (i)
Initial Notes for original issue in the aggregate principal amount not to exceed
$150,000,000 and (ii) Additional Notes from time to time for original issue in
aggregate principal amount not to exceed $150,000,000 and (iii) Exchange Notes
from time to time for issue in exchange for a like principal amount of Initial
Notes or Initial Additional Notes, in each case specified in clauses (i) through
(iii) above, upon a written order of the Company in the form of an Officer's
Certificate of the Company (an "Authentication Order"). Such Officer's
Certificate shall specify the amount of Notes to be authenticated and the date
on which the Notes are to be authenticated, whether the Notes are to be Initial
Notes, Additional Notes or Exchange Notes and whether the Notes are to be issued
as one or more Global Notes or Physical Notes and such other information as the
Company may include or the Trustee may reasonably request. Any offering of
Additional Notes is subject to Section 4.06.
All Notes shall be dated the date of their authentication.
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.
Section 3.04 Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare and upon receipt of an Authentication Order
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. If temporary Notes are
issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the temporary
Notes at the office or agency of the Company in a Place of Payment, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and upon receipt of an Authentication
Order the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Notes of authorized denominations. Until so
exchanged the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes of the same series and tenor.
Section 3.05 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
a register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Note Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
45
registration of Notes and of transfers of Notes. The Trustee is hereby appointed
"Note Registrar" for the purpose of registering Notes and transfers of Notes as
herein provided.
Upon surrender for transfer of any Note at the office or agency of
the Company in a Place of Payment, in compliance with all applicable
requirements of this Indenture and applicable law, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes, of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes,
of any authorized denominations and of a like tenor and aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Notes that the Holder making
the exchange is entitled to receive.
All Notes issued upon any transfer or exchange of Notes shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Notes surrendered upon such transfer
or exchange.
Every Note presented or surrendered for transfer or exchange shall
(if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed, by the Holder thereof or such
Holder's attorney duly authorized in writing.
No service charge shall be made for any transfer or exchange of
Notes, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Notes under this Section 3.05.
The Company shall not be required (i) to issue, transfer or exchange
any Note during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption (or purchase) of Notes selected for
redemption (or purchase) under Section 10.04 and ending at the close of business
on the day of such mailing, or (ii) to transfer or exchange any Note so selected
for redemption (or purchase) in whole or in part.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Notes. If (i) any
mutilated Note is surrendered to the Trustee, or the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company or the Trustee that such Note has been
acquired by a bona fide purchaser, the Company shall execute and upon receipt of
an Authentication Order the Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a new Note
of like tenor and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
46
Upon the issuance of any new Note under this Section 3.06, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 3.06 in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and ratably with
any and all other Notes duly issued hereunder.
The provisions of this Section 3.06 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 3.07 Payment of Interest Rights Preserved. Interest on any
Note that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest specified in Section 3.01.
Any interest on any Note that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, as provided in clause (1) or
clause (2) below:
(3) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements reasonably satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted
Interest as provided in this clause (1). Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first class postage prepaid, to each Holder at such Holder's address as it
appears in the Note Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Notes (or their
respective Predecessor Notes)
47
are registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(4) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause (2), such
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.07, each Note
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, and to
accrue, that were carried by such other Note.
Section 3.08 Persons Deemed Owners. The Company any other obligor
upon the Notes, the Trustee and any agent of any of them may treat the Person in
whose name any Note is registered as the owner of such Note for the purpose of
receiving payment of principal of (and premium, if any), and (subject to Section
3.07) interest on, such Note and for all other purposes whatsoever, whether or
not such Note be overdue, and neither the Company, any other obligor upon the
Notes, the Trustee nor any agent of any of them shall be affected by notice to
the contrary.
Section 3.09 Cancellation. All Notes surrendered for payment,
redemption, transfer, exchange or conversion shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Notes previously authenticated and
delivered hereunder that the Company may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes
shall be authenticated in lieu of or in exchange for any Notes cancelled as
provided in this Section 3.09, except as expressly permitted by this Indenture.
All cancelled Notes held by the Trustee shall be disposed of as directed by a
Company Order of the Company.
Section 3.10 Computation of Interest. Interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and if so, the Trustee may use the
CUSIP numbers in notices of redemption or exchange as a convenience to Holders;
provided, however, 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.
Section 3.12 Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name
of the Depositary for such Global Note or the nominee of such Depositary and
(ii) be delivered to the Trustee as custodian for such Depositary. Neither the
Company nor any agent of the Company shall have any responsibility or liability
for any aspect of the records relating to or payments
48
made on account of beneficial ownership interests of a Global Note, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note, and
the Depositary may be treated by the Company, any other obligor upon the Notes,
the Trustee and any agent of any of them as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, any other obligor upon the Notes, the Trustee or any
agent of any of them from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a beneficial owner of any Note. The registered
holder of a 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 that a Holder is entitled to take under this
Indenture or the Notes.
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but, subject to the immediately succeeding sentence, not
in part, to the Depositary, its successors or their respective nominees.
Interests of beneficial owners in a Global Note may not be transferred or
exchanged for Physical Notes, unless (i) the Company has consented thereto in
writing, or such transfer or exchange is made pursuant to the next sentence, and
(ii) such transfer or exchange is in accordance with the applicable rules and
procedures of the Depositary and the provisions of Sections 3.05 and 3.13.
Subject to the limitation on issuance of Physical Notes set forth in Section
3.13(3), U.S. Physical Notes or Offshore Physical Notes shall be transferred to
all beneficial owners in exchange for their beneficial interests in the relevant
U.S. Global Note or the relevant Offshore Global Note, respectively, if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for the applicable Global Note or the Depositary ceases to be a
"Clearing Agency" registered under the Exchange Act and the Company is unable to
locate a qualified successor depositary within 90 days, (ii) the Company, at its
option, notifies the Trustee in writing that it elects to cause the issuance of
Physical Notes under this Indenture or (iii) an Event of Default has occurred
and is continuing and the Note Registrar has received a written request from the
Depositary to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners for Physical Notes
pursuant to paragraph (b) of this Section 3.12, the Note Registrar shall record
on its books and records the date and a decrease in the principal amount of such
Global Note in an amount equal to the beneficial interest in the Global Note
being transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and principal
amount of authorized denominations.
(d) In connection with a transfer of an entire Global Note to
beneficial owners pursuant to paragraph (b) of this Section 3.12, the applicable
Global Note 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 Depositary in exchange for its
beneficial interest in the applicable Global Note, an equal aggregate principal
amount at maturity
49
of U.S. Physical Notes (in the case of any U.S. Global Note) or Offshore
Physical Notes (in the case of any Offshore Global Note), as the case may be, of
authorized denominations.
(e) The transfer and exchange of a Global Note or beneficial
interests therein shall be effected through the Depositary, in accordance with
this Indenture (including applicable restrictions on transfer set forth in
Section 3.13) and the procedures of the Depositary therefor. 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 a different Global Note will, upon
transfer, cease to be an interest in such Global Note and become an interest in
the other Global Note and, accordingly, will thereafter be subject to all
transfer restrictions, if any, and other procedures applicable to beneficial
interests in such other Global Note for as long as it remains such an interest.
A transferor of a beneficial interest in a Global Note shall deliver to the
Registrar a written order given in accordance with the Depositary's procedures
containing information regarding the participant account of the Depositary to be
credited with a beneficial interest in the relevant Global Note. Subject to
Section 3.13, the Registrar shall, in accordance with such instructions,
instruct the Depositary to credit to the account of the Person specified in such
instructions a beneficial interest in such Global Note and to debit the account
of the Person making the transfer of the beneficial interest in the Global Note
being transferred.
(f) Any Physical Note delivered in exchange for an interest in a
Global Note pursuant to paragraph (b) of this Section 3.12 shall, unless such
exchange is made on or after the Resale Restriction Termination Date applicable
to such Note and except as otherwise provided in Section 2.03 and Section 3.13,
bear the Private Placement Legend.
(g) The Company, any other obligor upon the Notes or the Trustee, in
the discretion of any of them, may treat as the Act of a Holder any instrument
or writing of any Person that is identified by the Depositary as the owner of a
beneficial interest in the Global Note, provided that the fact and date of the
execution of such instrument or writing is proved in accordance with Section
1.08(b).
Section 3.13 Special Transfer Provisions. Transfers to Non-U.S.
Persons. (1) The following provisions shall apply with respect to the
registration of any proposed transfer of a Note that is a Restricted Security to
any Non-U.S. Person: The Note Registrar shall register such transfer if it
complies with all other applicable requirements of this Indenture (including
Section 3.05) and,
(a) if (x) such transfer is after the relevant Resale Restriction
Termination Date with respect to such Note or (y) the distribution compliance
period set forth in Regulation S has expired and the proposed transferor has
delivered to the Note Registrar a Regulation S Certificate and, unless otherwise
agreed by the Company and the Trustee, an opinion of counsel, certifications and
other information satisfactory to the Company and the Trustee, and
(b) if the proposed transferor is or is acting through an Agent
Member holding a beneficial interest in a Global Note, upon receipt by the Note
Registrar of (x) the certificate, opinion, certifications and other information,
if any, required by clause (a) above and (y) written instructions given in
accordance with the Depositary's and the Note Registrar's procedures;
50
(c) whereupon (i) the Note Registrar shall reflect on its books and
records the date and (if the transfer does not involve a transfer of any
Outstanding Physical Note) a decrease in the principal amount of the relevant
Global Note in an amount equal to the principal amount of the beneficial
interest in the relevant Global Note to be transferred, and (ii) either (A) if
the proposed transferee is or is acting through an Agent Member holding a
beneficial interest in a relevant Offshore Global Note, the Trustee shall
reflect on its books and records the date and an increase in the principal
amount of such Offshore Global Note in an amount equal to the principal amount
of the beneficial interest being so transferred or (B) otherwise the Company
shall execute and the Trustee shall authenticate and deliver one or more
Physical Notes of like tenor and amount.
(5) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note that is a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons): The Note
Registrar shall register such transfer if it complies with all other applicable
requirements of this Indenture (including Section 3.05) and,
(a) if such transfer is being made by a proposed transferor who has
checked the box provided for on the form of such Note stating, or has otherwise
certified to the Company and the Note 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 the form of such Note stating, or has
otherwise certified to the Company and the Note Registrar in writing, that it is
purchasing such 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 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
(b) if the proposed transferee is an Agent Member, and the Note to
be transferred consists of a Physical Note that after transfer is to be
evidenced by an interest in a Global Note or consists of a beneficial interest
in a Global Note that after the transfer is to be evidenced by an interest in a
different Global Note, upon receipt by the Note Registrar of written
instructions given in accordance with the Depositary's and the Note Registrar's
procedures, whereupon the Note Registrar shall reflect on its books and records
the date and an increase in the principal amount of the transferee Global Note
in an amount equal to the principal amount of the Physical Note or such
beneficial interest in such transferor Global Note to be transferred, and the
Trustee shall cancel the Physical Note so transferred or reflect on its books
and records the date and a decrease in the principal amount of such transferor
Global Note, as the case may be.
(6) Limitation on Issuance of Physical Notes. No Physical Note shall
be exchanged for a beneficial interest in any Global Note, except in accordance
with Section 3.12 and this Section 3.13.
A beneficial owner of an interest in an Offshore Global Note shall
not be permitted to exchange such interest for a Physical Note until a date,
which must be after the expiration of the distribution compliance period set
forth in Regulation S, on which the Company
51
receives a certificate of beneficial ownership substantially in the form of
Exhibit D from such beneficial owner (a "Certificate of Beneficial Ownership").
Such date, as it relates to an Offshore Global Note, is herein referred to as
the "Offshore Note Exchange Date."
(7) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Note
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Note Registrar shall deliver only Notes that bear the
Private Placement Legend, unless (i) the requested transfer is after the
relevant Resale Restriction Termination Date with respect to such Notes, or (ii)
upon written request of the Company after there is delivered to the Note
Registrar an opinion of counsel (which opinion and counsel are satisfactory to
the Company and the Trustee) 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) with respect to an Offshore
Global Note or Offshore Physical Note only, with the agreement of the Company on
or after the Offshore Note Exchange Date with respect to such Note, or (iv) such
Notes are sold or exchanged pursuant to an effective registration statement
under the Securities Act.
(8) Other Transfers. The Note Registrar shall effect and register,
upon receipt of a written request from the Company so to do, a transfer not
otherwise permitted by this Section 3.13, such registration to be done in
accordance with the otherwise applicable provisions of this Section 3.13, upon
the furnishing by the proposed transferor or transferee of a written opinion of
counsel (which opinion and counsel are satisfactory to the Company and the
Trustee) to the effect that, and such other certifications or information as the
Company may require to confirm that, the proposed transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
A Note that is a Restricted Security may not be transferred other
than as provided in this Section 3.13. A beneficial interest in a Global Note
that is a Restricted Security may not be exchanged for a beneficial interest in
another Global Note other than through a transfer in compliance with this
Section 3.13.
(9) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Note Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 3.12 or this Section
3.13 (including all Notes received for transfer pursuant to this Section 3.13).
The Company shall have the right to require the Note Registrar to deliver to the
Company, at the Company's expense, copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable
written notice to the Note Registrar.
In connection with any transfer of any Note, the Trustee, the Note
Registrar and the Company shall be entitled to receive, shall be under no duty
to inquire into, may conclusively presume the correctness of, and shall be fully
protected in relying upon the certificates, opinions
52
and other information referred to herein (or in the forms provided herein,
attached hereto or to the Notes, or otherwise) received from any Holder and any
transferee of any Note regarding the validity, legality and due authorization of
any such transfer, the eligibility of the transferee to receive such Note and
any other facts and circumstances related to such transfer.
Section 3.14 Payment of Additional Interest. (a) Under certain
circumstances the Company will be obligated to pay certain additional amounts of
interest to the Holders of certain Initial Notes, as more particularly set forth
in such Initial Notes.
(b) Under certain circumstances the Company may be obligated to pay
certain additional amounts of interest to the Holders of certain Initial
Additional Notes, as may be more particularly set forth in such Initial
Additional Notes.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest. The Company
will duly and punctually pay the principal of (and premium, if any) and interest
on the Notes in accordance with the terms of the Notes and this Indenture.
Section 4.02 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York an office or agency
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain such 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. The
Company hereby designates the corporate trust office of an affiliate of the
Trustee, which office on the Issue Date is located at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as the initial Place of Payment and appoints the
Trustee its agent to receive all such presentations, surrenders, notices and
demands so long as such corporate trust office remains the Place of Payment.
Section 4.03 Money for Payments To Be Held in Trust. If the Company
shall at any time act as its own Paying Agent, it will, on or before each due
date of the principal of (and premium, if any) or interest on, any of the Notes,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
If the Company is not acting as its own Paying Agent, it will, prior
to each due date of the principal of (and premium, if any) or interest on, any
Notes, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest, so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or
53
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
If the Company is not acting as its own Paying Agent, the Company
will cause any Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section 4.03, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any such payment of
principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture and TIA relating to the duties, rights and
liabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid in the appropriate proportion to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease.
Section 4.04 SEC Reports. Notwithstanding that the Company may not
be required to be or remain subject to the reporting requirements of Section
13(a) or 15(d) of the Exchange Act, the Company will file with the SEC (unless
such filing is not permitted under the Exchange Act or by the SEC), so long as
Notes are outstanding, the annual reports, information, documents and other
reports that the Company is required to file with the Commission pursuant to
such Section 13(a) or 15(d) or would be so required to file if the Company were
so subject. The Company will also, within 15 days after the date on which the
Company was so required to
54
file or would be so required to file if the Company were so subject (or, if
later, 120 days after the Issue Date), transmit by mail to all Holders, as their
names and addresses appear in the Note Register, and to the Trustee copies of
any such information, documents and reports (without exhibits) so required to be
filed (or, in lieu of one or more of the annual reports for the fiscal year
ended December 25, 1999 and the quarterly reports for the following fiscal year,
a registration statement filed with the SEC under the Securities Act or any
amendment thereto, provided such registration statement or amendment contains
the information that would have been included in each such report). The Company
will be deemed to have satisfied such requirements if Holding files and provides
reports, documents and information of the types otherwise so required, in each
case within the applicable time periods, and the Company is not required to file
such reports, documents and information separately under the applicable rules
and regulations of the SEC (after giving effect to any exemptive relief) because
of the filings by Holding. The Company also will comply with the other
provisions of TIA ss. 314(a).
Section 4.05 Statement as to Default. The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, an Officer's Certificate, to the effect that to
the best knowledge of the signer thereof the Company is or is not in default in
the performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which such signer may have
knowledge. To the extent required by the TIA, each Note Guarantor shall comply
with TIA ss. 314(a)(4). The individual signing any certificate given by any
Person pursuant to this Section 4.05 shall be the principal executive, financial
or accounting officer of such Person, in compliance with TIA ss. 314(a)(4).
Section 4.06 Limitation on Indebtedness.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, Incur any Indebtedness; provided, however, that the Company or
any Note Guarantor may Incur Indebtedness if on the date of the Incurrence of
such Indebtedness, after giving effect to the Incurrence thereof, the
Consolidated Coverage Ratio would be greater than 2.00:1.00 if such Indebtedness
is Incurred on or prior to December 1, 2001 or 2.25:1.00 if such Indebtedness is
Incurred thereafter.
(b) Notwithstanding the foregoing paragraph (a) of this Section
4.06, the Company and its Restricted Subsidiaries may Incur the following
Indebtedness:
(i) Indebtedness Incurred pursuant to Credit Facilities (including
but not limited to in respect of letters of credit or bankers' acceptances
issued or created thereunder) and (without limiting the foregoing) any
Refinancing Indebtedness in respect thereof, in a maximum principal amount
at any time outstanding (giving effect to any refinancing thereof) not
exceeding in the aggregate the amount equal to the sum of (x) $475.0
million and (y) the aggregate amount by which the Borrowing Base
determined as of the date of such Incurrence exceeds $245.0 million (plus
in the case of any refinancing of any Credit Facility or any portion
thereof, the aggregate amount of fees, underwriting discounts, premiums
and other costs and expenses incurred in connection with such refinancing)
less the aggregate principal amount of Indebtedness
55
Incurred pursuant to this clause (b)(i) under the Credit Facilities (or
any refinancing thereof) that is permanently repaid pursuant to Section
4.10;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company or
(B) of the Company or any Restricted Subsidiary to any Restricted
Subsidiary; provided, that any subsequent issuance or transfer of any
Capital Stock of such Restricted Subsidiary to which such Indebtedness is
owed, or other event, that results in such Restricted Subsidiary ceasing
to be a Restricted Subsidiary or any other subsequent transfer of such
Indebtedness (except to the Company or a Restricted Subsidiary) will be
deemed, in each case, an Incurrence of such Indebtedness by the issuer
thereof;
(iii) Indebtedness represented by the Notes (other than Additional
Notes), any Indebtedness (other than the Indebtedness described in clauses
(i) or (ii) above) outstanding on the Issue Date and any Refinancing
Indebtedness Incurred in respect of any Indebtedness described in this
clause (iii) or paragraph (a) of this Section 4.06;
(iv) Purchase Money Obligations and Capitalized Lease Obligations,
and any Refinancing Indebtedness with respect thereto, in an aggregate
principal amount at any time outstanding (giving effect to any refinancing
thereof) not exceeding an amount equal to the greater of (x) $35.0 million
and (y) 5% of Consolidated Tangible Assets;
(v) Indebtedness of any Person that is assumed by the Company or any
Restricted Subsidiary in connection with its acquisition of assets from
such Person or any Affiliate thereof or is issued and outstanding on or
prior to the date on which such Person was acquired by the Company or any
Restricted Subsidiary or merged or consolidated with or into any
Restricted Subsidiary (other than Indebtedness Incurred to finance, or
otherwise in connection with, such acquisition), provided that on the date
of such acquisition, merger or consolidation, after giving effect thereto,
the Company could Incur at least $1.00 of additional Indebtedness pursuant
to paragraph (a) above of this Section 4.06; and any Refinancing
Indebtedness with respect to any such Indebtedness;
(vi) (A) Guarantees by the Company or any Restricted Subsidiary of
Indebtedness or any other obligation or liability of the Company or any
Restricted Subsidiary (other than any Indebtedness incurred by the Company
or such Restricted Subsidiary, as the case may be, in violation of this
Section 4.06, or (B) without limiting Section 4.12, Indebtedness of the
Company or any Restricted Subsidiary arising by reason of any Lien granted
by or applicable to such Person securing Indebtedness of the Company or
any Restricted Subsidiary (other than any Indebtedness incurred by the
Company or such Restricted Subsidiary, as the case may be, in violation of
this Section 4.06);
(vii) Indebtedness of the Company or any Restricted Subsidiary (A)
arising from the honoring of a check, draft or similar instrument of such
Person drawn against insufficient funds, provided that such Indebtedness
is extinguished within five Business Days of its incurrence, or (B)
consisting of guarantees, indemnities, obligations in respect of earnouts
or other purchase price adjustments, or similar obligations, Incurred in
56
connection with the acquisition or disposition of any business, assets or
Person (including pursuant to the Allied Acquisition);
(viii) Indebtedness of the Company or any Restricted Subsidiary in
respect of (A) letters of credit, bankers' acceptances or other similar
instruments or obligations issued, or relating to liabilities or
obligations incurred, in the ordinary course of business (including those
issued to governmental entities in connection with self-insurance under
applicable workers' compensation statutes), or (B) completion guarantees,
surety, judgment, appeal or performance bonds, or other similar bonds,
instruments or obligations, provided, or relating to liabilities or
obligations incurred, in the ordinary course of business, or (C) Hedging
Obligations entered into for bona fide hedging purposes in the ordinary
course of business, (D) Management Guarantees, (E) Agent Guarantees in an
aggregate principal amount not exceeding $10.0 million outstanding at any
time, or (F) the financing of insurance premiums in the ordinary course of
business;
(ix) Indebtedness of a Receivables Subsidiary secured by a Lien on
all or part of the assets disposed of in, or otherwise incurred in
connection with, a Financing Disposition, which Indebtedness is, except
for Standard Receivables Obligations, otherwise without recourse to the
Company or any Restricted Subsidiary of the Company (other than any
Receivables Subsidiary);
(x) Indebtedness of a Foreign Subsidiary if, on the date of
Incurrence of such Indebtedness, after giving effect to the Incurrence
thereof, (x) the Consolidated Coverage Ratio would be at least 2.25:1.00
and (y) if, as a result of such Incurrence, such Foreign Subsidiary shall
then become subject to any restriction or limitation (under any agreement
or instrument governing such Indebtedness) on its ability to pay dividends
or make other distributions to the Company, the Foreign Subsidiary
Coverage Ratio would be greater than 2.75:1.00; provided, that if such
Indebtedness is not incurred pursuant to the preceding clause (y), such
Indebtedness shall not be amended, modified or otherwise supplemented such
that such Foreign Subsidiary will become subject to any such restriction
or limitation referred to in such clause unless such Indebtedness could
then be Incurred pursuant to such clause; and any Refinancing Indebtedness
with respect to any such Indebtedness; and
(xi) Indebtedness of the Company or any Restricted Subsidiary in an
aggregate principal amount at any time outstanding (giving effect to any
refinancing thereof) not exceeding an amount equal to $45.0 million.
(c) For purposes of determining compliance with, and the outstanding
principal amount of any particular Indebtedness Incurred pursuant to and in
compliance with, this Section 4.06, (i) any other obligation of the obligor on
such Indebtedness (or of any other Person who could have Incurred such
Indebtedness under this Section 4.06) arising under any Guarantee, Lien or
letter of credit, bankers' acceptance or other similar instrument or obligation
supporting such Indebtedness shall be disregarded to the extent that such
Guarantee, Lien or letter of credit, bankers' acceptance or other similar
instrument or obligation secures the principal amount of such Indebtedness; (ii)
in the event that Indebtedness meets the criteria of more than one of the types
of Indebtedness described in paragraph (b) of this Section 4.06, the
57
Company, in its sole discretion, shall classify such item of Indebtedness and
only be required to include the amount and type of such Indebtedness in one of
such clauses; and (iii) the amount of Indebtedness issued at a price that is
less than the principal amount thereof shall be equal to the amount of the
liability in respect thereof determined in accordance with GAAP.
(d) For purposes of determining compliance with any
Dollar-denominated restriction on the Incurrence of Indebtedness denominated in
a foreign currency, the Dollar-equivalent principal amount of such Indebtedness
Incurred pursuant thereto shall be calculated based on the relevant currency
exchange rate in effect on the date that such Indebtedness was Incurred, in the
case of term Indebtedness, or first committed, in the case of revolving credit
Indebtedness, provided that (x) the Dollar-equivalent principal amount of any
such Indebtedness outstanding on the Issue Date shall be calculated based on the
relevant currency exchange rate in effect on the Issue Date, (y) if such
Indebtedness is Incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable Dollar-
denominated restriction to be exceeded if calculated at the relevant currency
exchange rate in effect on the date of such refinancing, such Dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal
amount of such refinancing Indebtedness does not exceed the principal amount of
such Indebtedness being refinanced and (z) the Dollar-equivalent principal
amount of Indebtedness denominated in a foreign currency and Incurred pursuant
to the Senior Credit Facility shall be calculated based on the relevant currency
exchange rate in effect on, at the Company's option, (i) the Issue Date, (ii)
any date on which any of the respective commitments under the Senior Credit
Facility shall be reallocated between or among facilities or subfacilities
thereunder, or on which such rate is otherwise calculated for any purpose
thereunder, or (iii) the date of such Incurrence. The principal amount of any
Indebtedness Incurred to refinance other Indebtedness, if Incurred in a
different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
respective Indebtedness is denominated that is in effect on the date of such
refinancing.
Section 4.07 Limitation on Layering. The Company shall not Incur any
Indebtedness that is expressly subordinated in right of payment to any Senior
Indebtedness of the Company, unless such Indebtedness so Incurred ranks pari
passu in right of payment with the Notes, or is subordinated in right of payment
to the Notes. No Note Guarantor shall Incur any Indebtedness that is expressly
subordinated in right of payment to any Guarantor Senior Indebtedness of such
Note Guarantor, unless such Indebtedness so Incurred ranks pari passu in right
of payment with such Note Guarantor's Note Guarantee, or is subordinated in
right of payment to such Note Guarantor's Note Guarantee. Unsecured Indebtedness
is not deemed to be subordinate or junior to secured Indebtedness merely because
it is unsecured, and Indebtedness that is not guaranteed by a particular Person
is not deemed to be subordinate or junior to Indebtedness that is so guaranteed
merely because it is not so guaranteed.
Section 4.08 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make
any distribution on or in respect of its Capital Stock (including any such
payment in connection with any merger or consolidation to which the Company or
any Restricted Subsidiary is a party) except (x) dividends or
58
distributions payable solely in its Capital Stock (other than Disqualified
Stock) and (y) dividends or distributions payable to the Company or any
Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making
such dividend or distribution, to other holders of its Capital Stock on no more
than a pro rata basis, measured by value), (ii) purchase, redeem, retire or
otherwise acquire for value any Capital Stock of the Company held by Persons
other than the Company or a Restricted Subsidiary, (iii) purchase, repurchase,
redeem, defease or otherwise acquire or retire for value, prior to scheduled
maturity, scheduled repayment or scheduled sinking fund payment, any
Subordinated Obligations (other than a purchase, redemption, defeasance or other
acquisition or retirement for value in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of such acquisition or retirement) or (iv) make any Investment
(other than a Permitted Investment) in any Person (any such dividend,
distribution, purchase, redemption, repurchase, defeasance, other acquisition or
retirement or Investment being herein referred to as a "Restricted Payment"), if
at the time the Company or such Restricted Subsidiary makes such Restricted
Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Company could not incur at least an additional $1.00 of
Indebtedness pursuant to paragraph (a) of Section 4.06; or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to be
as determined in good faith by the Board of Directors, whose determination
shall be conclusive) declared or made subsequent to the Issue Date and
then outstanding would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from September 30, 1999 to
the end of the most recent fiscal quarter ending prior to the date
of such Restricted Payment for which consolidated financial
statements of the Company are available (or, in case such
Consolidated Net Income shall be a negative number, 100% of such
negative number);
(B) the aggregate Net Cash Proceeds and the fair market value
of Qualified Proceeds received (x) by the Company as capital
contributions to the Company after the Issue Date or from the
issuance or sale (other than to a Restricted Subsidiary) of its
Capital Stock (other than Disqualified Stock) after the Issue Date
or (y) by the Company or any Restricted Subsidiary from the issuance
and sale by the Company or any Restricted Subsidiary after the Issue
Date of Indebtedness that shall have been converted into or
exchanged for Capital Stock of the Company (other than Disqualified
Stock), plus the amount of cash and the fair market value of
Qualified Proceeds received by the Company or any Restricted
Subsidiary upon such conversion or exchange;
(C) the aggregate amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from (i)
dividends, distributions, interest payments, return of capital,
repayments of Investments or other transfers of assets
59
to the Company or any Restricted Subsidiary from any Unrestricted
Subsidiary (in each case, in the form of cash, Cash Equivalents or
Qualified Proceeds), or (ii) the redesignation of any Unrestricted
Subsidiary as a Restricted Subsidiary (valued in each case as
provided in the definition of "Investment"), not to exceed in the
case of any such Unrestricted Subsidiary the aggregate amount of
Investments (other than Permitted Investments) made by the Company
or any Restricted Subsidiary in such Unrestricted Subsidiary after
the Issue Date; and
(D) in the case of any disposition or repayment of any
Investment (in each case, in the form of cash, Cash Equivalents or
Qualified Proceeds) constituting a Restricted Payment (without
duplication of any amount deducted in calculating the amount of
Investments at any time outstanding included in the amount of
Restricted Payments), an amount in the aggregate equal to the lesser
of the return of capital, repayment or other proceeds with respect
to all such Investments and the initial amount of all such
Investments.
(b) The provisions of paragraph (a) of this Section 4.08 will not
prohibit any of the following (each, a "Permitted Payment"):
(i) any purchase, redemption, repurchase, defeasance or other
acquisition or retirement of Capital Stock of the Company or Subordinated
Obligations made by exchange (including any such exchange pursuant to the
exercise of a conversion right or privilege in connection with which cash
is paid in lieu of the issuance of fractional shares) for, or out of the
proceeds of the substantially concurrent issuance or sale of, Capital
Stock of the Company (other than Disqualified Stock and other than Capital
Stock issued or sold to a Subsidiary) or a substantially concurrent
capital contribution to the Company; provided, that the Net Cash Proceeds
from such issuance, sale or capital contribution shall be excluded in
subsequent calculations under clause (B) of the preceding paragraph (a) of
this Section 4.08;
(ii) any purchase, redemption, repurchase, defeasance or other
acquisition or retirement of Subordinated Obligations (x) made by exchange
for, or out of the proceeds of the substantially concurrent issuance or
sale of, Refinancing Indebtedness Incurred in compliance with Section
4.06; (y) from Net Available Cash to the extent permitted by Section 4.10;
or (z) to the extent required by the agreement governing such Subordinated
Obligations only following the occurrence of a Change of Control
Triggering Event (or, in the case of Acquired Debt, any similar event),
but only if in each case, the Company shall have complied with Section
4.14 and, if required, purchased all Notes tendered pursuant to the offer
to repurchase all the Notes required thereby, prior to purchasing or
repaying such Subordinated Obligations;
(iii) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with the preceding paragraph (a) of this Section 4.08;
(iv) loans, advances, dividends or distributions by the Company to
Holding to permit Holding to repurchase or otherwise acquire its Capital
Stock (including any
60
options, warrants or other rights in respect thereof), or payments by the
Company to repurchase or otherwise acquire Capital Stock (including any
options, warrants or other rights in respect thereof), in each case from
Management Investors, such payments, loans, advances, dividends or
distributions not to exceed an amount (net of repayments of any such loans
or advances) equal to (A) $12.5 million plus (B) $2.5 million multiplied
by the number of calendar years that have commenced since the Issue Date
plus (C) the Net Cash Proceeds received by the Company since the Issue
Date from, or as a capital contribution from, the issuance or sale to
Management Investors of Capital Stock (including any options, warrants or
other rights in respect thereof), to the extent such Net Cash Proceeds are
not included in any calculation under clause (3)(B)(x) of the preceding
paragraph (a) of this Section 4.08;
(v) the payment by the Company of, or loans, advances, dividends or
distributions by the Company to Holding to pay, dividends on the common
stock or equity of the Company or Holding following a public offering of
such common stock or equity, in an amount not to exceed in any fiscal year
6% of the aggregate gross proceeds received by the Company in or from such
public offering;
(vi) Restricted Payments (including loans or advances) in an
aggregate amount outstanding at any time not to exceed $10.0 million (net
of repayments of any such loans or advances);
(vii) loans, advances, dividends or distributions to Holding or
other payments by the Company or any Restricted Subsidiary (A) to satisfy
or permit Holding to satisfy obligations under the Management Agreements,
(B) pursuant to the Tax Sharing Agreement, or (C) to pay or permit Holding
to pay any Holding Expenses or any Related Taxes;
(viii) payments by the Company, or loans, advances, dividends or
distributions by the Company to Holding to make payments, to holders of
Capital Stock of the Company or Holding in lieu of issuance of fractional
shares of such Capital Stock, not to exceed $100,000 in the aggregate
outstanding at any time;
(ix) the distribution, as a dividend or otherwise, of Investments in
Unrestricted Subsidiaries (with the exception of Investments in
Unrestricted Subsidiaries acquired pursuant to the definition of Permitted
Investments other than pursuant to clause (xvii) of such definition);
(x) the Transactions; and
(xi) any purchase, redemption, retirement or other acquisition of
Capital Stock that may be deemed to occur upon exercise of stock options,
warrants or similar rights to the extent such Capital Stock represents all
or part of the exercise price thereof;
provided, that (A) in the case of clauses (iii) and (v), the net amount of any
such Permitted Payment shall be included in subsequent calculations of the
amount of Restricted Payments, (B) in the case of clause (iv), 50% of the amount
of any such Permitted Payment shall be included in subsequent calculations of
the amount of Restricted Payments, (C) in all cases other
61
than pursuant to clauses (A) and (B) immediately above, the net amount of any
such Permitted Payment shall be excluded in subsequent calculations of the
amount of Restricted Payments and (D) with respect to clauses (v) and (vi), no
Default or Event of Default shall have occurred or be continuing at the time of
any such Permitted Payment after giving effect thereto.
Section 4.09 Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause to exist or become effective
any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligations owed to the Company, (ii)
make any loans or advances to the Company or (iii) transfer any of its property
or assets to the Company, except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered
into on the Issue Date (including, without limitation, the Senior Credit
Facility), this Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating
to Indebtedness or Capital Stock of a Person, which Person is acquired by
or merged or consolidated with or into the Company or any Restricted
Subsidiary, or which agreement or instrument is assumed by the Company or
any Restricted Subsidiary in connection with an acquisition of assets from
such Person, as in effect at the time of such acquisition, merger or
consolidation (except to the extent that such Indebtedness was incurred to
finance, or otherwise in connection with, such acquisition, merger or
consolidation), provided that for purposes of this clause (2), if another
Person is the Successor Company, any Subsidiary thereof or agreement or
instrument of such Person or any such Subsidiary shall be deemed acquired
or assumed, as the case may be, by the Company or a Restricted Subsidiary,
as the case may be, when such Person becomes the Successor Company;
(3) pursuant to an agreement or instrument (a "Refinancing
Agreement") effecting a refinancing of Indebtedness Incurred pursuant to,
or that otherwise extends, renews, refunds, refinances or replaces, an
agreement or instrument referred to in clause (1) or (2) of this Section
4.09 or this clause (3) (an "Initial Agreement") or contained in any
amendment, supplement or other modification to an Initial Agreement (an
"Amendment"); provided, however, that the encumbrances and restrictions
contained in any such Refinancing Agreement or Amendment taken as a whole
are not materially less favorable to the Holders of the Notes than
encumbrances and restrictions contained in the Initial Agreement or
Initial Agreements to which such Refinancing Agreement or Amendment
relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is subject to a
lease, license or similar contract, or the assignment or transfer of any
lease, license or other contract, (B) by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any
property or assets of the Company or any Restricted Subsidiary not
otherwise prohibited by this Indenture, (C) contained in mortgages,
pledges or other security agreements securing
62
Indebtedness of a Restricted Subsidiary to the extent restricting the
transfer of the property or assets subject thereto, (D) pursuant to
customary provisions restricting dispositions of real property interests
set forth in any reciprocal easement agreements of the Company or any
Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that
impose encumbrances or restrictions on the property or assets so acquired,
(F) on cash or other deposits or net worth imposed by customers under
agreements entered into in the ordinary course of business, (G) pursuant
to customary provisions contained in agreements and instruments entered
into in the ordinary course of business (including but not limited to
leases and joint venture and other similar agreements entered into in the
ordinary course of business) or (H) that arises or is agreed to in the
ordinary course of business and does not detract from the value of
property or assets of the Company or any Restricted Subsidiary in any
manner material to the Company or such Restricted Subsidiary;
(5) with respect to a Restricted Subsidiary (or any of its property
or assets) imposed pursuant to an agreement entered into for the direct or
indirect sale or disposition of all or substantially all the Capital Stock
or assets of such Restricted Subsidiary (or the property or assets that
are subject to such restriction) pending the closing of such sale or
disposition;
(6) required by any applicable law, rule, regulation or order or by
any regulatory authority having jurisdiction over the Company or any
Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any
Indebtedness permitted to be Incurred subsequent to the Issue Date
pursuant to the provisions of Section 4.06, if the Company determines in
good faith that the encumbrances and restrictions contained in the
agreements and instruments relating to such Indebtedness, taken as a
whole, are not materially less favorable to the Holders of the Notes than
encumbrances and restrictions contained in the agreements and instruments
referred to in clause (1) of this Section 4.09, (B) relating to
Indebtedness of a Foreign Subsidiary incurred pursuant to clause (b)(i) or
(b)(x) of Section 4.06, (C) relating to a sale of accounts receivable by a
Foreign Subsidiary on customary terms (as determined in good faith by the
Company) or (D) relating to Indebtedness of or a Financing Disposition to
or by any Receivables Entity.
Section 4.10 Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, make any Asset Disposition unless
(i) the Company or such Restricted Subsidiary receives consideration
(including by way of relief from, or by any other Person assuming
responsibility for, any liabilities, contingent or otherwise) at the time
of such Asset Disposition at least equal to the fair market value of the
shares and assets subject to such Asset Disposition, as such fair market
value may be determined (and shall be determined, to the extent such Asset
Disposition or any series of related Asset Dispositions involves aggregate
consideration
63
in excess of $10.0 million) in good faith by the Board of Directors, whose
determination shall be conclusive (including as to the value of all
noncash consideration),
(ii) in the case of any Asset Disposition (or series of related
Asset Dispositions) at least 75% of the consideration therefor (excluding,
in the case of an Asset Disposition (or series of related Asset
Dispositions) of assets, any consideration by way of relief from, or by
any other Person assuming responsibility for, any liabilities, contingent
or otherwise, that are not Indebtedness) received by the Company or such
Restricted Subsidiary is in the form of (a) cash, or (b) Designated
Noncash Assets having an aggregate fair market value, taken together with
all other Designated Noncash Assets received in consideration for Asset
Dispositions pursuant to this clause (b) that are at the time outstanding,
not to exceed the greater of (x) 5% of Consolidated Tangible Assets and
(y) $35.0 million at the time of receipt of such Designated Noncash
Assets; and
(iii) an amount equal to 100% of the Net Available Cash from such
Asset Disposition is applied by the Company (or any Restricted Subsidiary,
as the case may be) as follows:
(E) first, either (x) to the extent the Company elects (or is
required by the terms of any Senior Indebtedness or Indebtedness of
a Restricted Subsidiary), to prepay, repay or purchase Senior
Indebtedness or such Indebtedness of a Restricted Subsidiary (in
each case other than Indebtedness owed to the Company or a
Restricted Subsidiary) within 365 days after the date of such Asset
Disposition, or (y) to the extent the Company or such Restricted
Subsidiary elects, to reinvest in Additional Assets (including by
means of an investment in Additional Assets by a Restricted
Subsidiary with Net Available Cash received by the Company or
another Restricted Subsidiary) within 365 days from the date of such
Asset Disposition;
(F) second, to the extent of the balance of such Net Available
Cash after application in accordance with clause (A) above (such
balance, the "Excess Proceeds"), to make an offer to purchase Notes
and (to the extent the Company or such Restricted Subsidiary elects,
or is required by the terms thereof) to purchase, redeem or repay
any other Senior Subordinated Indebtedness or Guarantor Senior
Subordinated Indebtedness, pursuant and subject to the conditions of
this Indenture and the agreements governing such other Indebtedness;
and
(G) third, to the extent of the balance of such Net Available
Cash after application in accordance with clauses (A) and (B) above,
to fund (to the extent consistent with any other applicable
provision of this Indenture) any general corporate purpose
(including but not limited to the repurchase, repayment or other
acquisition or retirement of any Subordinated Obligations);
provided, however, that in connection with any prepayment, repayment or purchase
of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such
Restricted Subsidiary will retire such Indebtedness and will cause the related
loan commitment (if any) to be permanently reduced in an amount equal to the
principal amount so prepaid, repaid or purchased.
64
Notwithstanding the foregoing provisions of this Section 4.10, the
Company and the Restricted Subsidiaries shall not be required to apply any Net
Available Cash in accordance with this Section 4.10 except to the extent that
the aggregate Net Available Cash from all Asset Dispositions that is not applied
in accordance with this Section 4.10 exceeds $15.0 million. If the aggregate
principal amount of Notes, Senior Subordinated Indebtedness and Guarantor Senior
Subordinated Indebtedness validly tendered and not withdrawn (or otherwise
subject to purchase, redemption or repayment) in connection with an offer
pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds
will be apportioned between the Notes and such Senior Subordinated Indebtedness
and Guarantor Senior Subordinated Indebtedness, with the portion of the Excess
Proceeds payable in respect of the Notes to equal the lesser of (x) the Excess
Proceeds amount multiplied by a fraction, the numerator of which is the
outstanding principal amount of the Notes and the denominator of which is the
sum of the outstanding principal amount of the Notes and the outstanding
principal amount of the relevant Senior Subordinated Indebtedness and Guarantor
Senior Subordinated Indebtedness, and (y) the aggregate principal amount of
Notes validly tendered and not withdrawn.
For the purposes of clause (ii) of the first paragraph of this
Section 4.10, the following are deemed to be cash: (1) Temporary Cash
Investments and Cash Equivalents, (2) the assumption of Indebtedness of the
Company (other than Disqualified Stock of the Company) or any Restricted
Subsidiary and the release of the Company or such Restricted Subsidiary from all
liability on payment of the principal amount of such Indebtedness in connection
with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that
is no longer a Restricted Subsidiary as a result of such Asset Disposition, to
the extent that the Company and each other Restricted Subsidiary are released
from any Guarantee of payment of the principal amount of such Indebtedness in
connection with such Asset Disposition, (4) securities received by the Company
or any Restricted Subsidiary from the transferee that are converted by the
Company or such Restricted Subsidiary into cash within 180 days after the
consummation of such Asset Disposition and (5) consideration consisting of
outstanding Indebtedness of the Company or a Restricted Subsidiary which is then
retired.
(b) In the event of an Asset Disposition that requires the purchase
of Notes pursuant to clause (iii)(B) of the first paragraph of this Section
4.10, the Company will be required to purchase Notes tendered pursuant to an
offer by the Company for the Notes (the "Offer") at a purchase price of 100% of
their principal amount plus accrued and unpaid interest to the Purchase Date in
accordance with the procedures (including prorating in the event of
oversubscription) set forth in paragraph (c) of this Section 4.10. If the
aggregate purchase price of the Notes tendered pursuant to the Offer is less
than the Net Available Cash allotted to the purchase of Notes, the remaining Net
Available Cash will be available to the Company for use in accordance with
clause (iii)(B) of the first paragraph of this Section 4.10 (to repay Senior
Subordinated Indebtedness or Guarantor Senior Subordinated Indebtedness) or
clause (iii)(C) of the first paragraph of this Section 4.10. The Company shall
not be required to make an Offer for Notes pursuant to this Section 4.10 if the
Net Available Cash available therefor (after application of the proceeds as
provided in clause (iii)(A) of the first paragraph of this Section 4.10) is less
than $15.0 million for any particular Asset Disposition (which lesser amounts
shall be carried forward for purposes of determining whether an Offer is
required with respect to the Net Available Cash from any subsequent Asset
Disposition).
65
(c) The Company will, not later than 45 days after the Company
becomes obligated to make an Offer pursuant to this Section 4.10, mail a notice
to each Holder with a copy to the Trustee stating: (1) that an Asset Disposition
that requires the purchase of a portion of the Notes has occurred and that such
Holder has the right (subject to the prorating described below) to require the
Company, to purchase a portion of such Holder's 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 (subject to Section 3.07); (2) the
circumstances and relevant facts and financial information regarding such Asset
Disposition; (3) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); (4) the instructions
determined by the Company, consistent with this Section 4.10, that a Holder must
follow in order to have its Notes purchased; and (5) the amount of the Offer.
If, upon the expiration of the period for which the Offer remains open, the
aggregate principal amount of Notes surrendered by Holders exceeds the amount of
the Offer, the Company will select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Issuers so that only
Notes in denominations of $1,000 or integral multiples thereof, shall be
purchased).
(d) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.10. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.10, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.10 by virtue
thereof.
Section 4.11 Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into or conduct any transaction or
series of related transactions (including the purchase, sale, lease or exchange
of any property or the rendering of any service) with any Affiliate of the
Company (an "Affiliate Transaction") unless (i) the terms of such Affiliate
Transaction are not materially less favorable to the Company or such Restricted
Subsidiary, as the case may be, than those that could be obtained at the time in
a transaction with a Person who is not such an Affiliate and (ii) if such
Affiliate Transaction involves aggregate consideration in excess of $10.0
million, the terms of such Affiliate Transaction have been approved by a
majority of the Disinterested Directors. For purposes of this paragraph, any
Affiliate Transaction shall be deemed to have satisfied the requirements set
forth in this paragraph if (x) such Affiliate Transaction is approved by a
majority of the Disinterested Directors or (y) in the event there are no
Disinterested Directors, a fairness opinion is provided by a nationally
recognized appraisal or investment banking firm with respect to such Affiliate
Transaction.
(b) The provisions of the preceding paragraph (a) of this Section
4.11 will not apply to:
(i) any Restricted Payment Transaction,
66
(ii) (1) the entering into, maintaining or performance of any
employment contract, collective bargaining agreement, benefit plan,
program or arrangement, related trust agreement or any other similar
arrangement for or with any employee, officer or director heretofore or
hereafter entered into in the ordinary course of business, including
vacation, health, insurance, deferred compensation, severance, retirement,
savings or other similar plans, programs or arrangements, (2) the payment
of compensation, performance of indemnification or contribution
obligations, or any issuance, grant or award of stock, options, other
equity-related interests or other securities, to employees, officers or
directors in the ordinary course of business, (3) the payment of fees to
directors of the Company or any of its Subsidiaries, (4) any transaction
with an officer or director in the ordinary course of business not
involving more than $100,000 in any one case, or (5) Management Advances
and payments in respect thereof,
(iii) any transaction with the Company, any Restricted Subsidiary,
or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments in
existence on the Issue Date, and any payments made pursuant thereto,
(v) execution, delivery and performance of the Tax Sharing Agreement
and Management Agreements, including (1) payment to CDR or any Affiliate
of CDR of a fee of $5.0 million plus out-of-pocket expenses in connection
with the Transactions, and (2) payment to CDR or any Affiliate of CDR of
fees of up to $1.0 million in any fiscal year plus all out-of-pocket
expenses incurred by CDR or any such Affiliate in connection with its
performance of management consulting, monitoring, financial advisory or
other services with respect to the Company and its Restricted
Subsidiaries,
(vi) the Transactions, all transactions in connection therewith
(including but not limited to the financing thereof), and all fees or
expenses paid or payable in connection with the Transactions,
(vii) any transaction in the ordinary course of business on terms
not materially less favorable to the Company or the relevant Restricted
Subsidiary than those that could be obtained at the time in a transaction
with a Person who is not an Affiliate of the Company, and
(viii) any transaction in the ordinary course of business, or
approved by a majority of the Board of Directors, between the Company or
any Restricted Subsidiary and any Affiliate of the Company controlled by
the Company that is a joint venture or similar entity.
Section 4.12 Limitation on Liens. The Company shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, create or
permit to exist any Lien (other than Permitted Liens) on any of its property or
assets (including Capital Stock of any other Person), whether owned on the date
of this Indenture or thereafter acquired, securing any Indebtedness of the
Company or any Note Guarantor that by its terms is expressly subordinated in
right of payment to or ranks pari passu in right of payment with the Notes or
such Note Guarantor's Note
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Guarantee (the "Initial Lien"), unless contemporaneously therewith effective
provision is made to secure the Indebtedness due under this Indenture and the
Notes or, in respect of Liens on any Restricted Subsidiary's property or assets,
any Note Guarantee of such Restricted Subsidiary, equally and ratably with such
obligation for so long as such obligation is so secured by such Initial Lien.
Any such Lien thereby created in favor of the Notes or any such Note Guarantee
will be automatically and unconditionally released and discharged upon (i) the
release and discharge of the Initial Lien to which it relates, or (ii) any sale,
exchange or transfer to any Person not an Affiliate of the Company of the
property or assets secured by such Initial Lien, or of all of the Capital Stock
held by the Company or any Restricted Subsidiary in, or all or substantially all
the assets of, any Restricted Subsidiary creating such Lien.
Section 4.13 Future Note Guarantors. After the Issue Date, the
Company will cause each Domestic Subsidiary that guarantees payment by the
Company of Bank Indebtedness of the Company to execute and deliver to the
Trustee a supplemental indenture or other instrument pursuant to which such
Subsidiary will guarantee payment of the Notes, whereupon such Subsidiary will
become a Note Guarantor for all purposes under this Indenture. In addition, the
Company may cause any Subsidiary that is not a Note Guarantor so to guarantee
payment of the Notes and become a Note Guarantor.
Section 4.14 Purchase of Notes Upon a Change in Control.
(a) Upon a Change of Control Triggering Event, each Holder will have
the right to require the Company to repurchase all or any part of such Holder's
Notes at a purchase price in cash equal to 101% of the principal amount thereof,
plus accrued and unpaid interest, if any, to the date of repurchase (subject to
Section 3.07); provided, however, that the Company shall not be obligated to
repurchase Notes pursuant to this Section 4.14 in the event that it has
exercised its right to redeem all of the Notes pursuant to Article 10.
(b) In the event that, at the time of such Change of Control
Triggering Event, the terms of the Bank Indebtedness restrict or prohibit the
repurchase of Notes pursuant to this Section 4.14, then prior to the mailing of
the notice to Holders provided for in clause (c) of this Section 4.14 but in any
event not later than 30 days following the date the Company obtains actual
knowledge of any Change of Control Triggering Event (unless the Company has
exercised its right to redeem all the Notes as provided in Article 10), the
Company shall (i) repay in full all Bank Indebtedness or offer to repay in full
all Bank Indebtedness and repay the Bank Indebtedness of each lender who has
accepted such offer or (ii) obtain the requisite consent under the agreements
governing the Bank Indebtedness to permit the repurchase of the Notes as
provided for in clause (c) of this Section 4.14. The Company shall first comply
with the provisions of the immediately preceding sentence before it shall be
required to repurchase Notes pursuant to the provisions of clause (c) of this
Section 4.14. The Company's failure to comply with the provisions of (x) the
first sentence of this clause (b) or (y) clause (c) of this Section 4.14 shall
constitute an Event of Default described in clause (4) and not in clause (2)
under Section 6.01.
(c) Unless the Company has exercised its right to redeem all the
Notes as set forth in Article 10, the Company shall, not later than 30 days
following the date the Company obtains actual knowledge of any Change of Control
Triggering Event having occurred, mail a
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notice to each Holder with a copy to the Trustee stating: (1) that a Change of
Control Triggering Event has occurred or may occur and that such Holder has, or
upon such occurrence will have, the right to require the Company to purchase
such Holder's Notes at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the date of
purchase (subject to Section 3.07); (2) the circumstances and relevant facts and
financial information regarding such Change of Control; (3) the repurchase date
(which shall be no earlier than 30 days nor later than 60 days from the date
such notice is mailed); (4) the instructions determined by the Company,
consistent with this Section 4.14, that a Holder must follow in order to have
its Notes purchased; and (5) if such notice is mailed prior to the occurrence of
a Change of Control or Change of Control Triggering Event, that such offer is
conditioned on the occurrence of such Change of Control Triggering Event.
(d) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.14. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.14, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.14, by virtue
thereof.
ARTICLE 5
SUCCESSOR COMPANY
Section 5.01 When the Company May Merge, etc. The Company will not
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") will be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
and the Successor Company (if not the Company) will expressly assume all
the obligations of the Company under the Notes and this Indenture by
executing and delivering to the Trustee a supplemental indenture or one or
more other documents or instruments in form reasonably satisfactory to the
Trustee;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness that becomes an obligation of the Successor
Company or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Successor Company or such Restricted
Subsidiary at the time of such transaction), no Default will have occurred
and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company could Incur at least $1.00 of additional Indebtedness
pursuant to paragraph (a) of Section 4.06;
(iv) each Note Guarantor (other than any party to any such
consolidation or merger) shall have delivered a supplemental indenture or
other document or instrument in form reasonably satisfactory to the
Trustee, confirming its Note Guarantee; and
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(v) the Company will have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each to the effect that such
consolidation, merger or transfer complies with the provisions described
in this paragraph of this Section 5.01, provided that (x) in giving such
opinion such counsel may rely on an Officer's Certificate as to compliance
with the foregoing clauses (ii) and (iii) and as to any matters of fact,
and (y) no Opinion of Counsel will be required for a consolidation, merger
or transfer described in the last paragraph of this Section 5.01.
Any Indebtedness that becomes an obligation of the Company or any
Restricted Subsidiary (or that is deemed to be Incurred by any Restricted
Subsidiary that becomes a Restricted Subsidiary) as a result of any such
transaction undertaken in compliance with this Section 5.01, and any Refinancing
Indebtedness with respect thereto, shall be deemed to have been Incurred in
compliance with Section 4.06.
Clauses (ii) and (iii) of the first paragraph of this Section 5.01
will not apply to any transaction in which (1) any Restricted Subsidiary
consolidates with, merges into or transfers all or part of its assets to the
Company or (2) the Company consolidates or merges with or into or transfers all
or substantially all its properties and assets to (x) an Affiliate incorporated
or organized for the purpose of reincorporating or reorganizing the Company in
another jurisdiction or changing its legal structure to a corporation or other
entity or (y) a Restricted Subsidiary of the Company so long as all assets of
the Company and the Restricted Subsidiaries immediately prior to such
transaction (other than Capital Stock of such Restricted Subsidiary) are owned
by such Restricted Subsidiary and its Restricted Subsidiaries immediately after
the consummation thereof.
Section 5.02 Successor Company Substituted. Upon any transaction
involving the Company in accordance with Section 5.01, in which the Company is
not the Successor Company, the Successor Company will succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture, and thereafter the predecessor Company shall be relieved of all
obligations and covenants under this Indenture.
ARTICLE 6
REMEDIES
Section 6.01 Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest on any Note when
due, whether or not such payment shall be prohibited by Article 14, and
such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of any Note
when the same becomes due at its Stated Maturity, upon optional
redemption, upon required purchase, upon declaration of acceleration or
otherwise, whether or not such payment shall be prohibited by Article 14;
(3) the Company fails to comply with Article 5 and such failure
continues for 30 days after the notice specified in the penultimate
paragraph of this Section 6.01;
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(4) the Company fails to comply with Section 4.14 (other than a
failure to purchase the Notes), and such failure continues for 30 days
after the notice specified in the penultimate paragraph of this Section
6.01;
(5) the Company fails to comply with any of its agreements in the
Notes or this Indenture (other than those referred to in (1), (2), (3) and
(4) above) and such failure continues for 60 days after the notice
specified in the penultimate paragraph of this Section 6.01;
(6) any Note Guarantor fails to comply with its obligations under
any Note Guarantee and such failure continues for 45 days after the notice
specified in the penultimate paragraph of this Section 6.01;
(7) the Company or any Significant Subsidiary fails to pay any
Indebtedness within any applicable grace period after final maturity or
the acceleration of any such Indebtedness by the holders thereof because
of a default if the total amount of such Indebtedness unpaid or
accelerated exceeds $15,000,000 or its foreign currency equivalent;
(8) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(H) commences a voluntary case;
(A) consents to the entry of an order for relief against it in
an involuntary case;
(B) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(C) makes a general assignment for the benefit of its
creditors;
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 days;
(10) there is rendered any judgment or decree for the payment of
money in an amount (net of any insurance or indemnity payments actually
received within 90 days
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from the entry thereof, or to be received in respect thereof in the event
any appeal thereof shall be unsuccessful) in excess of $15,000,000 or its
foreign currency equivalent against the Company or any Significant
Subsidiary by a court or other adjudicatory authority of competent
jurisdiction that is not discharged, or bonded or insured by a third
Person, if such judgment or decree remains outstanding for a period of 90
days following such judgment or decree and is not discharged, waived or
stayed;
(11) any Note Guarantee by a Note Guarantor that is a Significant
Subsidiary fails to be in full force and effect (except as contemplated by
the terms thereof or of this Indenture) or any Note Guarantor that is a
Significant Subsidiary denies or disaffirms in writing its obligations
under its Note Guarantee (other than by reason of the termination of this
Indenture or such Note Guarantee or the release of such Note Guarantee in
accordance with such Note Guarantee of this Indenture), if such Default
continues for 10 days; or
(12) Holding fails to consummate the Holding Stock Issuance on or
before December 31, 1999.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any
similar Federal, state or foreign law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (3), (4), (5) or (6) is not an Event of
Default until the Trustee or the Holders of at least 25% in principal amount of
the Outstanding Notes notify the Company (and the Trustee in the case of a
notice by Holders) of the Default and the Company does not cure such Default
within the time specified therein after receipt of such notice. Such notice must
specify the Default, demand that it be remedied and state that such notice is a
"Notice of Default." When a Default or an Event of Default is cured, it ceases.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officer's Certificate of
any Event of Default under clause (7) or (10) and any event that with the giving
of notice or the lapse of time would become an Event of Default under clause
(3), (4), (5) or (6), its status and what action the Company is taking or
proposes to take with respect thereto.
Section 6.02 Acceleration of Maturity; Rescission and Annulment. If
an Event of Default (other than an Event of Default specified in clause (8) or
(9) of Section 6.01 with respect to the Company) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least a majority in
principal amount of the outstanding Notes by notice to the Company and the
Trustee, in either case specifying in such notice the respective Event of
Default and that such notice is a "notice of acceleration," may declare the
principal of and accrued but unpaid interest on all the Notes to be due and
payable, provided that so long as any Bank
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Indebtedness shall be outstanding, such acceleration shall not be effective
until the earlier to occur of (x) five Business Days following delivery of a
written notice of such acceleration of the Notes to the Company and the holders
of all Bank Indebtedness or each Representative thereof and (y) the acceleration
of any Bank Indebtedness. Upon the effectiveness of such a declaration, such
principal and interest will be due and payable immediately. Notwithstanding the
foregoing, if an Event of Default specified in clause (8) or (9) of Section 6.01
with respect to the Company occurs and is continuing, then the principal of and
any accrued interest on all the Outstanding Notes will ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. The Holders of a majority in principal amount of the
Outstanding Notes by notice to the Company and the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except non-payment of principal or interest that has become due solely
because of such acceleration. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
Notwithstanding the foregoing, in the event of a declaration of
acceleration in respect of the Notes because an Event of Default specified in
clause (7) of Section 6.01 shall have occurred and be continuing, such
declaration of acceleration of the Notes and such Event of Default and all
consequences thereof (including without limitation any acceleration or resulting
payment default) shall be annulled, waived and rescinded, automatically and
without any action by the Trustee or the Holders, and be of no further effect,
if within 60 days after such Event of Default arose (x) the Indebtedness that is
the basis for such Event of Default has been discharged, or (y) the holders
thereof have rescinded or waived the acceleration, notice or action (as the case
may be) giving rise to such Event of Default, or (z) the default in respect of
such Indebtedness that is the basis for such Event of Default has been cured.
Section 6.03 Other Remedies; Collection Suit by Trustee. If an Event
of Default occurs and is continuing, the Trustee may, but is not obligated under
this Section 6.03 to, pursue any available remedy to collect the payment of
principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture. If an Event of Default specified in
Section 6.01(1) or 6.01(2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount then due and owing (together with interest on any unpaid
interest to the extent lawful) and the amounts provided for in Section 7.07.
Section 6.04 Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceedings relative to the Company or any other obligor upon the
Notes, its creditors or its property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
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No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.05 Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes in respect of which such judgment has been recovered.
Section 6.06 Application of Money Collected. Any money collected by
the Trustee pursuant to this Article 6 shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any) or interest, upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: to the payment of all amounts due the Trustee under Section
7.07;
Second: to holders of Senior Indebtedness to the extent required by
Article 14;
Third: to the payment of the amounts then due and unpaid upon the
Notes for principal (and premium, if any) and interest, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Notes for principal (and premium, if any) and
interest, respectively; and
Fourth: to the Company.
Section 6.07 Limitation on Suits. No Holder may pursue any remedy
with respect to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee written notice that
an Event of Default is continuing;
(2) Holders of at least 25% in principal amount of the Outstanding
Notes have requested the Trustee in writing to pursue the remedy;
(3) such Holder or Holders have offered the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days
after receipt of the request and the offer of security or indemnity; and
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(5) the Holders of a majority in principal amount of the Outstanding
Notes have not given the Trustee a direction inconsistent with the request
during such 60-day period.
A Holder may not use this Indenture to affect, disturb or prejudice
the rights of another Holder, to obtain a preference or priority over another
Holder or to enforce any right under this Indenture except in the manner herein
provided and for the equal and ratable benefit of all Holders.
Section 6.08 Unconditional Right of Holders to Receive Principal and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the absolute and unconditional right to receive payment of
the principal of and all (subject to Section 3.07) interest on such Note on the
respective Stated Maturity or Interest Payment Dates expressed in such Note and
to institute suit for the enforcement of any such payment on or after such
respective Stated Maturity or Interest Payment Dates, and such right shall not
be impaired without the consent of such Holder.
Section 6.09 Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture or any Note 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 such case the Company, any other obligor upon the
Notes, the Trustee and the Holders shall, subject to any determination in such
proceeding, 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.
Section 6.10 Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6 or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Control by Holders. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee, provided that
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(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or, subject to Section 7.01, that the
Trustee determines is unduly prejudicial to the rights of other Holders or would
involve the Trustee in personal liability; provided, however, that the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction. Prior to taking any action under this Indenture, the
Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action. This Section 6.12 shall be in lieu of ss. 316(a)(1)(A) of the TIA, and
such ss. 316(a)(1)(A) of the TIA is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA.
Section 6.13 Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes may on behalf of
the Holders of all the Notes waive any past Default hereunder and its
consequences, except a Default
(1) in the payment of the principal of (or premium, if any) or
interest on any Note (which may only be waived with the consent of each
Holder of Notes affected), or
(2) in respect of a covenant or provision hereof that pursuant to
the second paragraph of Section 9.02 cannot be modified or amended without
the consent of the Holder of each Outstanding Note affected.
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 thereon. In
case of any such waiver, the Company, any other obligor upon the Notes, the
Trustee and the Holders shall be restored to their former positions and rights
hereunder and under the Notes, respectively. This paragraph of this Section 6.13
shall be in lieu of ss. 316(a)(1)(B) of the TIA and such ss. 316(a)(1)(B) of the
TIA is hereby expressly excluded from this Indenture and the Notes, as permitted
by the TIA.
Section 6.14 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture or the Notes, or
in any suit against the Trustee for any action taken, suffered or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant. This Section 6.14 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Notes, or to any suit instituted by any Holder for the
enforcement of the payment of
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the principal of (or premium, if any) or interest on any Note on or after the
respective Stated Maturity or Interest Payment Dates expressed in such Note.
Section 6.15 Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other similar
law wherever enacted, now or at any time hereafter in force, that would prohibit
or forgive the Company from paying all or any portion of the principal of (or
premium, if any) or interest on the Notes contemplated herein or in the Notes or
that may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(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 that 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
verify the contents thereof.
(e) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(f) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that (i) this paragraph does not
limit the effect of paragraph (a) of this Section 7.01; (ii) the Trustee shall
not be liable for any error of judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent in ascertaining the pertinent
facts; and (iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.12.
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(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
Sections 7.01 and 7.03.
Section 7.02 Notice of Defaults. Within 90 days after the occurrence
of any Default, the Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Note Register, notice of such Default
hereunder known to the Trustee unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of, premium, if any, or interest on any Note, the Trustee shall
be protected in withholding such notice if and so long as a committee of Trust
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders.
Section 7.03 Certain Rights of Trustee. Subject to the provisions of
Section 7.01:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order thereof,
and any resolution of any Person's board of directors shall be
sufficiently evidenced if certified by an Officer of such Person as having
been duly adopted and being in full force and effect on the date of such
certificate;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate of the Company;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee
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reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note, other evidence of indebtedness or other paper or document; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 7.04 Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company and any other
obligor upon the Notes, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes, except that the Trustee represents that it is duly authorized to execute
and deliver this Indenture, authenticate the Notes and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company and any other obligor upon the
Notes in connection with the registration of any Notes and any Note Guarantees
issued hereunder are and will be true and accurate subject to the qualifications
set forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Notes or the proceeds
thereof.
Section 7.05 May Hold Notes. The Trustee, any Authenticating Agent,
any Paying Agent, any Note Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Section 7.08 and Section 7.13, may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Note Registrar or such other agent.
Section 7.06 Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 7.07 Compensation and Reimbursement. The Company agrees,
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable out-of-pocket expenses
incurred by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation
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and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
the Trustee's part, arising out of or in connection with the
administration of the trust or trusts hereunder, including the 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.
The Company need not pay for any settlement made without its consent.
Section 7.08 Conflicting Interests. If the Trustee has or shall
acquire a conflicting interest within the meaning of the TIA, the Trustee shall
either eliminate such interest, apply to the SEC for permission to continue as
Trustee with such conflicting interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the TIA and this
Indenture. To the extent permitted by such Act, the Trustee shall not be deemed
to have a conflicting interest by virtue of being a trustee under this Indenture
with respect to Original Notes and Additional Notes, or a trustee under any
other indenture between the Company and the Trustee.
Section 7.09 Corporate Trustee Required; Eligibility. There shall at
all times be one (and only one) Trustee hereunder. The Trustee shall be a Person
that is eligible pursuant to the TIA to act as such and has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section 7.09
and to the extent permitted by the TIA, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
7.09, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
Section 7.10 Resignation and Removal; Appointment of Successor. No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 7.11.
The Trustee may resign at any time by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee required
by Section 7.11 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Notes, delivered to the Trustee
and to the Company.
If at any time:
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(1) the Trustee shall fail to comply with Section 7.08 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 7.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company may remove the Trustee, or (B) subject
to Section 6.14, any Holder who has been a bona fide Holder of a Note for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company shall promptly appoint a successor Trustee and shall comply with the
applicable requirements of Section 7.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Notes delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 7.11, become the successor Trustee and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 7.11, then, subject to Section 6.14, any Holder who
has been a bona fide Holder of a Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 1.10. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Section 7.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
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Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to above.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article 7.
Section 7.12 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article 7,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes.
Section 7.13 Preferential Collection of Claims Against the Company.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Notes), the Trustee shall be subject to the provisions of
the TIA regarding the collection of claims against the Company (or any such
other obligor).
Section 7.14 Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent acceptable to the Company to authenticate the
Notes. Any such appointment shall be evidenced by an instrument in writing
signed by a Trust Officer, a copy of which instrument shall be promptly
furnished to the Company. Unless limited by the terms of such appointment, an
Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication (or execution of a certificate of
authentication) by the Trustee includes authentication (or execution of a
certificate of authentication) by such Authenticating Agent. An Authenticating
Agent has the same rights as any Registrar, Paying Agent or agent for service of
notices and demands.
ARTICLE 8
HOLDERS' LISTS AND REPORTS BY
TRUSTEE AND THE COMPANY
Section 8.01 The Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
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(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Note
Registrar, no such list need be furnished pursuant to this Section 8.01.
Section 8.02 Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list, if any,
furnished to the Trustee as provided in Section 8.01 and the names and addresses
of Holders received by the Trustee in its capacity as Note Registrar; provided,
however, that if and so long as the Trustee shall be the Note Registrar, the
Note Register shall satisfy the requirements relating to such list. None of
Holding, the Company, any other obligor upon the Notes or the Trustee or any
other Person shall be under any responsibility with regard to the accuracy of
such list. The Trustee may destroy any list furnished to it as provided in
Section 8.01 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Notes, and the corresponding
rights and privileges of the Trustee, shall be as provided by the TIA.
Every Holder of Notes, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the TIA.
Section 8.03 Reports by Trustee. The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the TIA at the times and in the manner provided
pursuant thereto. A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Notes are listed, with the SEC and with the Company. The Company will
notify the Trustee when any Notes are listed on any stock exchange.
ARTICLE 9
AMENDMENT, SUPPLEMENT OR WAIVER
Section 9.01 Without Consent of Holders. Without the consent of the
Holders of any Notes the Company, the Trustee and (as applicable) any Note
Guarantor may enter into one or more indentures supplemental hereto, for any of
the following purposes:
(1) to cure any ambiguity, omission, defect or inconsistency,
(2) to provide for the assumption by a successor of the obligations
of the Company under this Indenture,
(3) to provide for uncertificated Notes in addition to or in place
of certificated Notes,
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(4) to add Guarantees with respect to the Notes, to secure the
Notes, to confirm and evidence the release, termination or discharge of
any Guarantee or Lien with respect to or securing the Notes when such
release, termination or discharge is provided for under this Indenture,
(5) to add to the covenants of the Company for the benefit of the
Noteholders or to surrender any right or power conferred upon the Company,
(6) to provide that any Indebtedness that becomes or will become an
obligation of a Successor Company or a Note Guarantor pursuant to a
transaction governed by Article 5 (and that is not a Subordinated
Obligation) is Senior Subordinated Indebtedness or Guarantor Senior
Subordinated Indebtedness for purposes of this Indenture,
(7) to provide for or confirm the issuance of Additional Notes,
(8) to make any change that does not adversely affect the rights of
any Holder under the Notes or this Indenture, or
(9) to comply with any requirement of the SEC in connection with the
qualification of this Indenture under the TIA or otherwise.
Section 9.02 With Consent of Holders. Subject to Section 6.08, the
Company, the Trustee and (if applicable) any Note Guarantor may amend 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 (including consents obtained in connection with a tender offer or exchange
offer for Notes), and the Holders of not less than a majority in aggregate
principal amount of the Outstanding Notes by written notice to the Trustee
(including consents obtained in connection with a tender offer or exchange offer
for Notes) may waive any existing Default or Event of Default or compliance by
the Company or any Note Guarantor with any provision of this Indenture, the
Notes or any Note Guarantee.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.13, may not:
(i) reduce the principal amount of the Notes whose Holders must
consent to an amendment or waiver;
(ii) reduce the rate of or extend the time for payment of interest
on any Note;
(iii) reduce the principal or extend the Stated Maturity of any
Note;
(iv) reduce the premium payable upon the redemption of any Note or
change the date on which any Note may be redeemed as described in Section
10.01;
(v) make any Note payable in money other than that stated in the
Note;
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(vi) make any change in Article 14 or Article 15 that adversely
affects the rights of any Holder in any material respect;
(vii) impair the right of any Holder to receive payment of principal
of and interest on such Holder's Notes on or after the due dates therefor
or to institute suit for the enforcement of any payment on or with respect
to such Holder's Notes; or
(viii) make any change in the amendment or waiver provisions
described in this sentence.
Notwithstanding Section 9.01 and the foregoing provisions of this
Section 9.02, no amendment to Article 14 or Article 15 of this Indenture or the
definitions relating thereto that adversely affects the rights of any Holder of
Senior Indebtedness at the time outstanding (which Senior Indebtedness has been
previously designated in writing by the Company to the Trustee for this purpose)
may be made unless the holders of such Senior Indebtedness (or any group or
representative thereof authorized to give a consent) consent in writing to such
amendment.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders of each Note affected
thereby, with a copy to the Trustee, a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any supplemental indenture or effectiveness of any such amendment, supplement or
waiver.
Section 9.03 Execution of Amendments, Supplements or Waivers. The
Trustee shall sign any amendment, supplement or waiver authorized pursuant to
this Article 9 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
shall be fully protected in relying upon, an Officer's Certificate and an
Opinion of Counsel to the effect that the execution of such amendment,
supplement or waiver has been duly authorized, executed and delivered by the
Company and that, subject to applicable bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, moratorium and other laws now
or hereinafter in effect affecting creditors' rights or remedies generally and
the general principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness), whether considered in
a proceeding at law or at equity, such amendment, supplement or waiver is a
valid and binding agreement of the Company, enforceable against it in accordance
with its terms.
Section 9.04 Revocation and Effect of Consents. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of that Note or any
Note that evidences all or any part of the same debt as the consenting Holder's
Note, even if notation of the consent is not made on
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any Note. Subject to the following paragraph of this Section 9.04, any such
Holder or subsequent Holder may revoke the consent as to such Holder's Note by
notice to the Trustee or the Company received by the Trustee or the Company, as
the case may be, before the date on which the Trustee receives an Officer's
Certificate certifying that the Holders of the requisite principal amount of
Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver. The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Holders entitled to consent
to any amendment, supplement or waiver as set forth in Section 1.08.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder of Notes, unless it makes a change described in any of clauses
(i) through (viii) of the second paragraph of Section 9.02. In that case, the
amendment, supplement or waiver shall bind each Holder of a Note who has
consented to it and every subsequent Holder of such Note or any Note that
evidences all or any part of the same debt as the consenting Holder's Note.
Section 9.05 Conformity with TIA. Every amendment or supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
Section 9.06 Notation on or Exchange of Notes. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee shall (if required
by the Company and in accordance with the specific direction of the Company)
request the Holder of the Note to deliver it to the Trustee. The Trustee shall
(if required by the Company and in accordance with the specific direction of the
Company) place an appropriate notation on the Note about the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
ARTICLE 10
REDEMPTION OF NOTES
Section 10.01 Right of Redemption.
(a) Except as set forth in this Section 10.01, the Notes will not be
redeemable at the option of the Company prior to December 1, 2004. Thereafter,
the Notes will be redeemable, at the Company's option, in whole or in part, and
from time to time on and after December 1, 2004 and prior to maturity. Such
redemption may be made upon notice mailed by first-class mail to each Holder's
registered address in accordance with Section 10.05. The Notes will be so
redeemable at the following Redemption Prices (expressed as a percentage of
principal amount), plus accrued interest, if any, to the relevant Redemption
Date (subject to Section 3.07), if redeemed during the 12-month period
commencing on December 1 of the years set forth below:
Redemption
Period Price
------ -------
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2004...................... 106.688%
2005...................... 104.458%
2006...................... 102.229%
2007 and thereafter....... 100.000%
(b) In addition, at any time and from time to time prior to December
1, 2002, the Company at its option may redeem Notes in an aggregate principal
amount equal to up to 35% of the original aggregate principal amount of the
Notes (including the principal amount of any Additional Notes), with funds in an
aggregate amount (the "Redemption Amount") not exceeding the aggregate cash
proceeds of one or more Equity Offerings, at a Redemption Price (expressed as a
percentage of principal amount thereof) of 113.375% plus accrued interest, if
any, to the Redemption Date (subject to Section 3.07); provided, however, that
an aggregate principal amount of the Notes equal to at least 65% of the original
aggregate principal amount of the Notes (including the principal amount of any
Additional Notes) must remain outstanding after each such redemption. The
Company may make such redemption upon notice mailed by first-class mail to each
Holder's registered address in accordance with Section 10.05 (but in no event
more than 180 days after the completion of the related Equity Offering).
Section 10.02 Applicability of Article. Redemption of Notes as
permitted by Section 10.01 shall be made in accordance with this Article 10.
Section 10.03 Election to Redeem; Notice to Trustee. In case of any
redemption at the election of the Company of less than all of the Notes, the
Company shall, at least 30 days prior to the Redemption Date initially fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of Notes
to be redeemed.
Section 10.04 Selection by Trustee of Notes to Be Redeemed. In the
case of any partial redemption, selection of the Notes for redemption will be
made not more than 60 days prior to the Redemption Date by the Trustee on a pro
rata basis, by lot or by such other method as the Trustee in its sole discretion
shall deem to be fair and appropriate, although no Note of $1,000 in original
principal amount or less will be redeemed in part.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. On and after the
Redemption Date, interest will cease to accrue on Notes or portions thereof
called for redemption.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Note redeemed or to be redeemed only in part, to the portion of
the principal of such Note that has been or is to be redeemed.
Section 10.05 Notice of Redemption. Notice of redemption as provided
in Section 10.01 shall be given by first class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date, to each Holder
of Notes to be redeemed, at such Holder's address appearing in the Note
Register.
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Any such notice shall state:
(1) the expected Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Note, and that, unless the Company defaults in
making such redemption payment or the Paying Agent is prohibited from
making such payment pursuant to the terms of this Indenture, interest
thereon shall cease to accrue from and after said date, and
(5) the place where such Notes are to be surrendered for payment of
the Redemption Price.
Notice of such redemption of Notes to be so redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Note.
Section 10.06 Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, the Company shall
segregate and hold in trust as provided in Section 4.03) an amount of money
sufficient to pay the Redemption Price of, and any accrued and unpaid interest
on, all the Notes or portions thereof which are to be redeemed on that date.
Section 10.07 Notes Payable on Redemption Date. Notice of redemption
having been given as provided in this Article 10, the Notes so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
herein specified and from and after such date (unless Company shall default in
the payment of the Redemption Price or the Paying Agent is prohibited from
paying the Redemption Price pursuant to the terms of this Indenture) such Notes
shall cease to bear interest. Upon surrender of such Notes for redemption in
accordance with such notice, such Notes shall be paid by the Company at the
Redemption Price. Installments of interest whose Interest Payment Date is on or
prior to the Redemption Date shall be payable to the Holders of such Notes
registered as such on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.07.
On and after any Redemption Date, if money sufficient to pay the
Redemption Price of and any accrued and unpaid interest on Notes called for
redemption shall have been
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made available in accordance with Section 10.06, the Notes (or the portions
thereof) called for redemption will cease to accrue interest and the only right
of the Holders of such Notes (or portions thereof) will be to receive payment of
the Redemption Price of and subject to the last sentence of the preceding
paragraph of this Section 10.07, any accrued and unpaid interest on such Notes
(or portions thereof) to the Redemption Date. If any Note (or portion thereof)
called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest
from the Redemption Date at the rate borne by the Note (or portion thereof).
Section 10.08 Notes Redeemed in Part. Any Note that is to be
redeemed only in part shall be surrendered at the Place of Payment (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Note without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Note so surrendered.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to any surviving rights
of registration or transfer or exchange of Notes herein expressly provided for),
and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(I) all Notes theretofore authenticated and delivered (other
than (i) Notes that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 3.06, and (ii)
Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 4.03) have been delivered to the Trustee cancelled or for
cancellation; or
(A) all such Notes not theretofore delivered to the Trustee
cancelled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
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(iii) are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of
the Company,
(2) the Company has irrevocably deposited or caused to be deposited
with the Trustee an amount in money, U.S. Government Obligations, or a
combination thereof, sufficient to pay and discharge the entire
Indebtedness on such Notes not theretofore delivered to the Trustee
cancelled or for cancellation, for principal of, and premium (if any) and
interest to the date of such deposit (in the case of Notes that have
become due and payable), or to the Stated Maturity or Redemption Date, as
the case may be;
(3) the Company has paid or caused to be paid all other sums then
payable hereunder by the Company; and
(4) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each to the effect that all
conditions precedent provided for in this Section 11.01 relating to the
satisfaction and discharge of this Indenture have been complied with,
provided that any such counsel may rely on any Officer's Certificate as to
matters of fact (including as to compliance with the foregoing clauses
(1), (2) and (3)).
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 7.07 and, if money
shall have been deposited with the Trustee pursuant to clause (2) of this
Section 11.01, the obligations of the Trustee under Section 11.02, shall
survive.
Section 11.02 Application of Trust Money. Subject to the provisions
of the last paragraph of Section 4.03, all money deposited with the Trustee
pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any) and interest on the Notes; but such money
need not be segregated from other funds except to the extent required by law.
ARTICLE 12
DEFEASANCE OR COVENANT DEFEASANCE
Section 12.01 The Company's Option to Elect Defeasance or Covenant
Defeasance. The Company may, at its option, at any time, elect to have
terminated the obligations of the Company with respect to the Outstanding Notes
and to have terminated the obligations of any or all Note Guarantors with
respect to the Note Guarantees, in each case as set forth in this Article 12,
and elect to have either Section 12.02 or Section 12.03 be applied to all of the
Outstanding Notes (the "Defeased Notes"), upon compliance with the conditions
set forth in Section 12.04. Either Section 12.02 or Section 12.03 may be applied
to the Defeased Notes to any Redemption Date or the Stated Maturity of the
Notes.
Section 12.02 Defeasance and Discharge. Upon the Company's exercise
under Section 12.01 of the option applicable to this Section 12.02, the Company
shall be deemed to
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have been released and discharged from its obligations with respect to the
Defeased Notes on the date the relevant conditions set forth in Section 12.04
below are satisfied (hereinafter, "Defeasance"). For this purpose, such
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Defeased Notes, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 12.05
and the other Sections of this Indenture referred to in clauses (a) and (b)
below, and the Company and each of the Note Guarantors shall be deemed to have
satisfied all other obligations under such Notes and this Indenture insofar as
such Notes are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following,
which shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of Defeased Notes to receive, solely from the trust fund
described in Section 12.04 and as more fully set forth in such Section, payments
in respect of the principal of and premium, if any, and interest on such Notes
when such payments are due, (b) the Company's obligations with respect to such
Defeased Notes under Sections 3.04, 3.05, 3.06, 4.02 and 4.03, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including the
Trustee's rights under Section 7.07, and (d) this Article 12. Subject to
compliance with this Article 12, the Company may, at its option and at any time,
exercise its option under this Section 12.02 notwithstanding the prior exercise
of its option under Section 12.03 with respect to the Notes.
Section 12.03 Covenant Defeasance. Upon the Company's exercise under
Section 12.01 of the option applicable to this Section 12.03, (a) the Company
and any Note Guarantors shall be released from their respective obligations
under any covenant or provision contained in Section 4.04 and Sections 4.06
through 4.14 and the provisions of clauses (iii), (iv) and (v) of Section 5.01
shall not apply, and (b) the occurrence of any event specified in clause (3)
(with respect to clauses (iii), (iv) and (v) of Section 5.01), (4) or (5) (with
respect to Section 4.04, Sections 4.06 through 4.14, inclusive, and any such
covenants provided pursuant to Section 9.01(5)), inclusive, (6), (7), (8) or (9)
(with respect to Subsidiaries), (10) or (11) of Section 6.01 shall be deemed not
to be or result in an Event of Default, in each case with respect to the
Defeased Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not to be "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with such covenants or provisions, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such Covenant
Defeasance means that, with respect to the Outstanding Notes, the Company and
any Note Guarantors may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant or
provision, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or provision or by reason of any reference in any
such covenant or provision to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.01, but, except as specified above, the remainder of
this Indenture and such Outstanding Notes shall be unaffected thereby.
Section 12.04 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 12.02 or
Section 12.03 to the Outstanding Notes:
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(1) The Company shall have irrevocably deposited or caused to be
deposited with the Trustee in trust money, U.S. Government Obligations or
a combination thereof, in amounts as will be sufficient, in the opinion of
a nationally recognized accounting or investment banking firm expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge the principal of, and premium, if any, and interest on the
Defeased Notes on the Stated Maturity or relevant Redemption Date in
accordance with the terms of this Indenture and the Notes;
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as Section 6.01(8) or
6.01(9) is concerned, at any time during the period ending on the
ninety-first day after the date of such deposit;
(3) Such deposit shall not result in a breach or violation of, or
constitute a Default or Event of Default under, this Indenture or any
other material agreement or instrument to which the Company is a party or
by which it is bound;
(4) In the case of an election under Section 12.02, the Company
shall have delivered to the Trustee an Opinion of Counsel from Debevoise &
▇▇▇▇▇▇▇▇ or other counsel to the effect that (x) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling or (y) since the Issue Date, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm to the effect that, the Holders
of the Outstanding Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Defeasance had not
occurred;
(5) In the case of an election under Section 12.03, the Company
shall have delivered to the Trustee an Opinion of Counsel from Debevoise &
▇▇▇▇▇▇▇▇ or other counsel to the effect that the Holders of the
Outstanding Notes will not recognize income, gain or loss for Federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred; and
(6) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each to the effect that all
conditions precedent provided for in this Section 12.04 relating to either
the Defeasance under Section 12.02 or the Covenant Defeasance under
Section 12.03, as the case may be, have been complied with. In rendering
such Opinion of Counsel, counsel may rely on any Officer's Certificate as
to compliance with the foregoing clauses (1), (2) and (3) of this Section
12.04 or as to any matters of fact.
From and after the time of any deposit pursuant to clause (1) of the
first paragraph of this Section 12.04, the money or U.S. Government Obligations
so deposited shall not be subject to the rights of the holders of Senior
Indebtedness or Guarantor Senior Indebtedness pursuant to the subordination
provisions of Article 14 or Article 15.
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Section 12.05 Deposited Money and U.S. Government Obligations To Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 4.03, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or such other
Person that would qualify to act as successor trustee under Article 7,
collectively and solely for purposes of this Section 12.05, Section 14.12 and
Section 15.12, the "Trustee") pursuant to Section 12.04 in respect of the
Defeased 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 (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee and its agents and
hold them harmless against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to Section 12.04 or
the principal, premium, if any, and interest received in respect thereof, other
than any such tax, fee or other charge that by law is for the account of the
Holders of the Defeased Notes.
Anything in this Article 12 to the contrary notwithstanding, the
Trustee shall deliver to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 12.04
that, in the opinion of a nationally recognized accounting or investment banking
firm expressed in a written certification thereof to the Trustee, are in excess
of the amount thereof that would then be required to be deposited to effect an
equivalent Defeasance or Covenant Defeasance. Subject to Article 7, the Trustee
shall not incur any liability to any Person by relying on such opinion.
Section 12.06 Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
Section 12.02 or 12.03, as the case may be, by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations of the Company and any other
obligor upon the Notes under this Indenture, the Notes and any Note Guarantees
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 12.02 or 12.03, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money and U.S. Government
Obligations in accordance with Section 12.02 or 12.03, as the case may be;
provided, however, that if either the Company and any other obligor upon the
Notes makes any payment of principal, premium, if any, or interest on any Note
following the reinstatement of its obligations, then the Company and any other
obligor upon the Notes shall be subrogated to the rights of the Holders of such
Notes to receive such payment from the money and U.S. Government Obligations
held by the Trustee or Paying Agent.
Section 12.07 Repayment to the Company. The Trustee shall pay to the
Company upon Company Request any money held by it for the payment of principal
or interest that remains unclaimed for two years. After payment to the Company,
Holders entitled to money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another Person
and all liability of the Trustee or Paying Agent with respect to such money
shall thereupon cease.
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ARTICLE 13
NOTE GUARANTEES
Section 13.01 Guarantees Generally.
(a) (i) Any Note Guarantor from time to time party hereto, as
primary obligor and not merely as surety, hereby jointly and
severally, irrevocably and fully and unconditionally Guarantees, on
a senior subordinated basis, the punctual payment when due, whether
at Stated Maturity, by acceleration or otherwise, of all monetary
obligations of the Company under this Indenture and the Notes,
whether for principal of or interest on the Notes, expenses,
indemnification or otherwise (all such obligations guaranteed by
such Note Guarantors being herein called the "Guaranteed
Obligations").
(ii) Any term or provision of this Indenture notwithstanding,
the obligations of each Note Guarantor under its Note Guarantee
shall not exceed the maximum amount, as will, after giving effect to
all other contingent and fixed liabilities of such Note Guarantor,
result in the obligations of such Note Guarantor under the Note
Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under applicable law, or being void or unenforceable under
any applicable law, including any law relating to insolvency of
debtors.
(b) Further Agreements of any Note Guarantor. (i) Any Note Guarantor
from time to time party hereto hereby agrees that (to the fullest extent
permitted by law) its obligations hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability of this Indenture, the Notes or
the obligations of the Company or any Note Guarantor to the Holders or the
Trustee hereunder or thereunder, the absence of any action to enforce the same,
any waiver or consent by any Holder with respect to any provisions hereof or
thereof, any release of any other Note Guarantor, the recovery of any judgment
against the Company, any action to enforce the same, whether or not a notation
concerning its Note Guarantee is made on any particular Note, or any other
circumstance that might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
(ii) Each Note Guarantor hereby waives (to the fullest extent
permitted by law) the benefit of diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest, notice and all demands whatsoever and covenants that
(except as otherwise provided in Section 13.03) its Note Guarantee will
not be discharged except by complete performance of the obligations
contained in the Notes, this Indenture, and its Note Guarantee. Such Note
Guarantee is a guarantee of payment and not of collection. Each Note
Guarantor further agrees (to the fullest extent permitted by law) that, as
between it, on the one hand, and the Holders of Notes and the Trustee, on
the other hand, subject to this Article 13 and Article 15, (1) the
maturity of the obligations guaranteed by its Note Guarantee may be
accelerated as and to the extent provided in Article 6 for the purposes of
such Note Guarantee notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
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guaranteed by such Note Guarantee and (2) in the event of any acceleration
of such obligations as provided in Article 6, such obligations (whether or
not due and payable) shall forthwith become due and payable by such
Guarantor in accordance with the terms of this Section 13.01 for the
purpose of such Note Guarantee. Neither the Trustee nor any other Person
shall have any obligation to enforce or exhaust any rights or remedies or
to take any other steps under any security for the Guaranteed Obligations
or against the Company or any other Person or any property of the Company
or any other Person before the Trustee is entitled to demand payment and
performance by any or all Note Guarantors of their obligations under their
respective Note Guarantees or under this Indenture.
(iii) Until terminated in accordance with Section 13.03, any Note
Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of the Company's assets, and
shall, to the fullest extent permitted by law, continue to be effective or
be reinstated, as the case may be, if at any time payment and performance
of the Notes are, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee on such
Notes, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Notes shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
(c) Each Note Guarantor that makes a payment or distribution under
any Note Guarantee shall have the right to seek contribution from the Company or
any non-paying Note Guarantor that has also Guaranteed the Guaranteed
Obligations in respect of which such payment or distribution is made, so long as
the exercise of such right does not impair the rights of the Holders under this
Note Guarantee.
(d) Each Note Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Indenture
and that its Note Guarantee and the waiver set forth in Section 13.05 is
knowingly made in contemplation of such benefits.
(e) Each Note Guarantor also hereby agrees to pay any and all
reasonable out-of-pocket expenses (including reasonable counsel fees and
expenses) incurred by the Trustee or the Holders in enforcing any rights under
its Note Guarantee.
Section 13.02 Continuing Guarantees. Each Note Guarantee shall be a
continuing Guarantee and shall (i) remain in full force and effect until payment
in full of the principal amount of all outstanding Notes (whether by payment at
maturity, purchase, redemption, defeasance, retirement or other acquisition) and
all other Guaranteed Obligations then due and owing, unless earlier terminated
as provided in Section 13.03, (ii) be binding upon such Note Guarantor and (iii)
inure to the benefit of and be enforceable by the Trustee, the Holders and their
permitted successors, transferees and assigns.
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Section 13.03 Release of Note Guarantees. Notwithstanding the
provisions of Section 13.02 any Note Guarantee will be subject to termination
and discharge under the circumstances described in this Section 13.03:
(a) Any Note Guarantor will automatically and unconditionally be
released from all obligations under its Note Guarantee, and such Note Guarantee
shall thereupon terminate and be discharged and of no further force or effect,
(i) concurrently with any sale or disposition (by merger or otherwise) of any
Note Guarantor or any interest therein in accordance with the terms of this
Indenture (including the Section 4.10) by the Company or a Restricted
Subsidiary, following which such Note Guarantor is no longer a Restricted
Subsidiary of the Company, (ii) pursuant to the terms of its Note Guarantee,
(iii) at any time that such Note Guarantor is released from all of its
obligations under all of its Guarantees of payment by the Company of Bank
Indebtedness of the Company, (iv) upon the merger or consolidation of any Note
Guarantor with and into the Company or another Note Guarantor that is the
surviving Person in such merger or consolidation, (v) upon legal or covenant
defeasance of the Company's obligations, or satisfaction and discharge of this
Indenture as provided in Article 11 or Article 12, or (vi) subject to clause
(b)(iii) of Section 13.01, upon payment in full of the aggregate principal
amount of all Notes then Outstanding and all other Guaranteed Obligations then
due and owing.
(b) Upon 30 days' notice by the Company to the Trustee, any Note
Guarantor that has not guaranteed payment by the Company of any Bank
Indebtedness of the Company shall be unconditionally released from all
obligations under its Note Guarantee, and such Note Guarantee shall thereupon
terminate and be discharged and of no further force or effect.
Upon any such occurrence specified in this Section 13.03, the
Trustee shall execute any documents reasonably required in order to evidence
such release, discharge and termination in respect of such Note Guarantor's Note
Guarantee.
Section 13.04 Agreement to Subordinate. Any Note Guarantee is, to
the extent and in the manner set forth in Article 15, subordinated and subject
in right of payment to the prior payment in full of all Guarantor Senior
Indebtedness of the relevant Note Guarantor giving such Note Guarantee and any
Note Guarantee is made subject to such provisions of this Indenture.
Section 13.05 Waiver of Subrogation. Each Note Guarantor hereby
irrevocably waives any claim or other rights that it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of the Company's obligations under the Notes and this Indenture
or such Note Guarantor's obligations under its Note Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder of Notes against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, until this Indenture is discharged and all of the Notes are discharged and
paid in full. If any amount shall be paid to a Note Guarantor in violation of
the preceding sentence and the Notes shall not have been paid in full, such
amount shall have been deemed to have been paid to such Note Guarantor for the
benefit of, and held in trust for the benefit of, the Holders of the Notes, and
shall forthwith be paid to the Trustee for the
96
benefit of such Holders to be credited and applied upon the Notes, whether
matured or unmatured, in accordance with the terms of this Indenture.
Section 13.06 Notation Not Required. Neither the Company nor any
Note Guarantor shall be required to make a notation on the Notes to reflect any
Note Guarantee or any such release, termination or discharge thereof.
Section 13.07 Successors and Assigns of the Note Guarantors. All
covenants and agreements in this Indenture by each Note Guarantor shall bind its
respective successors and assigns, whether so expressed or not.
Section 13.08 Execution and Delivery of Note Guarantees. The Company
shall cause each Domestic Subsidiary that is required to become a Note Guarantor
pursuant to Section 4.13, and each Subsidiary of the Company that the Company
causes to become a Note Guarantor pursuant to Section 4.13, to promptly execute
and deliver to the Trustee a supplemental indenture substantially in the form
set forth in Exhibit B to this Indenture, or otherwise in form and substance
reasonably satisfactory to the Trustee, evidencing its Note Guarantee on
substantially the terms set forth in this Article 13. Concurrently therewith,
the Company shall deliver to the Trustee an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee to the effect that such
supplemental indenture has been duly authorized, executed and delivered by such
Restricted Subsidiary and that, subject to the applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws now or hereafter in effect affecting creditors' rights
or remedies generally and the general principles of equity (including standards
of materiality, good faith, fair dealing and reasonableness), whether considered
in a proceeding at law or at equity such supplemental indenture is a valid and
binding agreement of such Restricted Subsidiary, enforceable against such
Restricted Subsidiary in accordance with its terms.
Section 13.09 Notices. Notice to any Note Guarantor shall be
sufficient if addressed to any Note Guarantor care of the Company at the
address, place and manner provided in Section 1.09.
ARTICLE 14
SUBORDINATION
Section 14.01 Agreement To Subordinate. The Company agrees, and each
Noteholder by accepting a Note agrees, that the Indebtedness evidenced by the
Notes is subordinated in right of payment, to the extent and in the manner
provided in this Article 14, to the prior payment in full in cash (when due) of
all existing and future Senior Indebtedness of the Company and that the
subordination is for the benefit of and enforceable by the holders of Senior
Indebtedness of the Company. The Notes shall in all respects rank pari passu
with all other Senior Subordinated Indebtedness of the Company and only
Indebtedness of the Company that is Senior Indebtedness shall rank senior to the
Notes in accordance with the provisions set forth herein. All provisions of this
Article 14 shall be subject to Section 14.12.
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Section 14.02 Liquidation, Dissolution, Bankruptcy. Upon any payment
or distribution of the assets of the Company upon a total or partial liquidation
or dissolution or reorganization of or similar proceeding relating to the
Company or its property, or in a bankruptcy, insolvency, receivership or similar
proceeding relating to the Company or its property,
(i) the holders of Senior Indebtedness will be entitled to receive
payment in full in cash of the Senior Indebtedness before the Noteholders
are entitled to receive any payment (except that Holders of Notes may
receive and retain Permitted Junior Securities and payments made from the
trust described in Article 12 if the funding of such trust is permitted
under Article 12), and
(ii) until the Senior Indebtedness is paid in full in cash, any
payment or distribution to which Noteholders would be entitled but for
this Article 14 will be made to holders of the Senior Indebtedness as
their interests may appear.
Section 14.03 Default on Senior Indebtedness. The Company may not
pay principal of, or premium (if any) or interest on, the Notes or make any
deposit pursuant to the provisions of Article 12 and may not otherwise purchase,
redeem or otherwise retire any Notes (except that Holders of Notes may receive
and retain Permitted Junior Securities and payments made from the trust
described in Article 12 if the funding of such trust is permitted under Article
12) (collectively, "pay the Notes") if (i) any Senior Indebtedness is not paid
when due in cash or Cash Equivalents or (ii) any other default on Senior
Indebtedness occurs and the maturity of such Senior Indebtedness is accelerated
in accordance with its terms (either such event, a "Payment Default") unless, in
either case, (x) the Payment Default has been cured or waived and any such
acceleration has been rescinded in writing or (y) such Senior Indebtedness has
been paid in full in cash or Cash Equivalents; provided that the Company may pay
the Notes without regard to the foregoing if the Company and the Trustee receive
written notice approving such payment from the Representative for the Designated
Senior Indebtedness with respect to which the Payment Default has occurred and
is continuing.
In addition, during the continuance of any default (other than a
Payment Default) with respect to any Designated Senior Indebtedness pursuant to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace period (a "Non-payment Default"), the Company
may not pay the Notes for the period specified as follows (a "Payment Blockage
Period") (except that Holders of Notes may receive and retain Permitted Junior
Securities and payments made from the trust described Article 12 if the funding
of such trust is permitted under Article 12). The Payment Blockage Period shall
commence upon the receipt by the Trustee (with a copy to the Company) of written
notice (a "Blockage Notice") of such Non-payment Default from the Representative
for such Designated Senior Indebtedness specifying an election to effect a
Payment Blockage Period and shall end on the earliest to occur of the following
events: (i) 179 days shall have elapsed since such receipt of such Blockage
Notice, (ii) the Non-payment Default giving rise to such Blockage Notice is no
longer continuing (and no other Payment Default or Non-payment Default is then
continuing), (iii) such Designated Senior Indebtedness shall have been
discharged or repaid in full in cash or Cash Equivalents or (iv) such Payment
Blockage Period shall have been terminated by written notice to the Trustee and
the
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Company from the Person or Persons who gave such Blockage Notice. The Company
shall promptly resume payments on the Notes, including any missed payments,
after such Payment Blockage Period ends, unless any Payment Default otherwise
exists. Not more than one Blockage Notice may be given in any 360 consecutive
day period, irrespective of the number of defaults with respect to Designated
Senior Indebtedness during such period. In no event may the total number of days
during which any Payment Blockage Period is in effect extend beyond 179 days
from the date of receipt by the Trustee of the relevant Blockage Notice, and
there must be a 181 consecutive day period during any 360 consecutive day period
during which no Payment Blockage Period is in effect.
No nonpayment default that existed or was continuing on the date of
delivery of any Blockage Notice to the Trustee shall be, or be made, the basis
for a subsequent Blockage Notice unless such default shall have been cured or
waived for a period of not less than 90 consecutive days.
Section 14.04 Acceleration of Payment of Notes. If payment of the
Notes is accelerated because of an Event of Default, the Company or the Trustee
shall promptly notify the holders of the Bank Indebtedness or the Representative
of such holders of the acceleration. Such acceleration will not be effective
until five Business Days after such holders or the Representative of such
holders receive notice of such acceleration and, thereafter, the Company may pay
the Notes only if this Article 14 otherwise permits payment at that time.
Section 14.05 When a Distribution Must Be Paid Over. If a
distribution is made to Noteholders that because of provisions of this Article
14 should not have been made to them, the Noteholders who received the
distribution are required to hold it in trust for the holders of Senior
Indebtedness and pay it over to them as their interests may appear.
Section 14.06 Subrogation. After all Senior Indebtedness of the
Company is paid in full and until the Notes are paid in full, Holders shall be
subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to such Senior Indebtedness. For purposes of such
subrogation, a distribution made under this Article 14 to holders of Senior
Indebtedness that otherwise would have been made to Holders is not, as between
the Company, its creditors other than the holders of such Senior Indebtedness
and Holders, a payment by the Company on such Senior Indebtedness, it being
understood that the provisions of this Article 14 are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one hand,
and the holders of Senior Indebtedness of the Company, on the other hand.
Section 14.07 Relative Rights. This Article 14 defines the relative
rights of Holders and holders of Senior Indebtedness. Nothing in this Indenture
shall:
(i) impair, as between the Company and Holders, the obligation of
the Company which is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms; or
(ii) prevent the Trustee or any Holder from exercising its available
remedies upon a Default, subject to the rights of holders of Senior
Indebtedness to receive distributions otherwise payable to Holders.
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Section 14.08 Subordination May Not Be Impaired by Issuers. No right
of any holder of Senior Indebtedness of the Company to enforce the subordination
of the Indebtedness evidenced by the Notes shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
Section 14.09 Rights of Trustee and Paying Agent. The Company shall
give prompt written notice to the Trustee of any fact known to the Company that
would prohibit the making of any payment to or by the Trustee in respect of the
Notes. Failure to give such notice shall not affect the subordination of the
Notes to Senior Indebtedness of the Company. Notwithstanding Section 14.03, the
Trustee or Paying Agent may continue to make payments on the Notes and shall not
be charged with knowledge of the existence of facts that would prohibit the
making of any such payments unless, not less than two Business Days prior to the
date of such payment, a Trust Officer of the Trustee receives notice
satisfactory to it that payments may not be made under this Article 14. The
Company, the Registrar or co-registrar, the Paying Agent, or a Representative or
holder of Senior Indebtedness may give the notice; provided, however, that, if
an issue of Senior Indebtedness has a Representative, only the Representative
may give the notice. The Trustee shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself or itself to be a holder of
any Senior Indebtedness (or a Representative of such holder) to establish that
such notice has been given by a holder of such Senior Indebtedness or
Representative thereof.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 14 with respect to any Senior Indebtedness that may at any time be held
by it, to the same extent as any other holder of Senior Indebtedness; and
nothing in Article 7 shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article 14 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
Section 14.10 Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative (if
any).
Section 14.11 Article 14 Not To Prevent Events of Default or Limit
Right To Accelerate. The failure to make a payment pursuant to the Notes by
reason of any provision in this Article 14 shall not be construed as preventing
the occurrence of a Default. Subject to Section 14.04, nothing in this Article
14 shall have any effect on the right of the Holders or the Trustee to
accelerate the maturity of the Notes.
Section 14.12 Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 12 by the Trustee for
the payment of principal of and premium, if any, and interest on the Notes shall
not be subordinated to the prior payment of any Senior Indebtedness of the
Company or subject to the restrictions set forth in this Article 14, and none of
the Holders shall be obligated to pay over any such amount to the Company or any
holder of Senior Indebtedness of the Company or any other creditor of the
Company.
100
Section 14.13 Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 14, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 14.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representatives for the holders of Senior Indebtedness
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 14. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 14, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article 14, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.01 and 7.03 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article 14.
Section 14.14 Trustee To Effectuate Subordination. Each Holder by
accepting a Note authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination between the Holders and the holders of Senior Indebtedness of
the Company as provided in this Article 14 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
Section 14.15 Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company and shall not be liable to any
such holders if it shall mistakenly pay over or distribute to Holders or the
Company or any other Person, money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article 14 or otherwise. With
respect to the holders of Senior Indebtedness of the Company, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article 14 or Article 15 and no implied
covenants or obligations with respect to holders of Senior Indebtedness of the
Company shall be read into this Indenture against the Trustee.
Section 14.16 Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Holder by accepting a Note acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness of
the Company, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Notes, to acquire and continue to hold, or to continue
to hold, such Senior Indebtedness and such holder of Senior Indebtedness shall
be deemed conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such Senior
Indebtedness.
Section 14.17 Trustee's Compensation Not Prejudiced. Nothing in this
Article 14 shall apply to amounts due to the Trustee pursuant to other Sections
of this Indenture.
101
ARTICLE 15
SUBORDINATION OF NOTE GUARANTEES
Section 15.01 Agreement To Subordinate. Each Note Guarantor agrees,
and each Noteholder by accepting a Note agrees, that all payments pursuant to
such Note Guarantor's Note Guarantee made by or on behalf of such Note Guarantor
are subordinated in right of payment, to the extent and in the manner provided
in this Article 15, to the prior payment in full in cash (when due) of all
existing and future Guarantor Senior Indebtedness of such Note Guarantor and
that the subordination is for the benefit of and enforceable by the holders of
Guarantor Senior Indebtedness of such Note Guarantor. Such Note Guarantee shall
in all respects rank pari passu with all other Guarantor Senior Subordinated
Indebtedness of such Note Guarantor and only Indebtedness of such Note Guarantor
that is Guarantor Senior Indebtedness shall rank senior to such Note Guarantee
in accordance with the provisions set forth herein. All provisions of this
Article 15 shall be subject to Section 15.12.
Section 15.02 Liquidation, Dissolution, Bankruptcy. Upon any payment
or distribution of the assets of a Note Guarantor upon a total or partial
liquidation or dissolution or reorganization of or similar proceeding relating
such Note Guarantor or its property, or in a bankruptcy, insolvency,
receivership or similar proceeding relating to such Note Guarantor or its
property,
(i) the holders of Guarantor Senior Indebtedness of such Note
Guarantor will be entitled to receive payment in full in cash of such
Guarantor Senior Indebtedness before the Noteholders are entitled to
receive any payment from such Note Guarantor (except that Holders of Notes
may receive and retain Permitted Junior Securities and payments made from
the trust described in Article 12 if the funding of such trust is
permitted under Article 12); and
(ii) until the Guarantor Senior Indebtedness of such Note Guarantor
is paid in full in cash, any payment or distribution from such Note
Guarantor to which Noteholders would be entitled but for this Article 15
will be made to holders of such Guarantor Senior Indebtedness as their
interests may appear.
Section 15.03 Default on Guarantor Senior Indebtedness. No Note
Guarantor may make any payment pursuant to its Note Guarantee and may not
otherwise purchase, redeem or otherwise retire or defease any Notes (except that
Holders of Notes may receive and retain Permitted Junior Securities and payments
made from the trust described in Article 12 if the funding of such trust is
permitted under Article 12) (collectively, "pay its Note Guarantee") if (i) any
Guarantor Senior Indebtedness of such Note Guarantor is not paid when due or
(ii) any other default on Guarantor Senior Indebtedness of such Note Guarantor
occurs and the maturity of such Guarantor Senior Indebtedness is accelerated in
accordance with its terms (either such event, a "Guarantor Payment Default")
unless, in either case, (x) the Guarantor Payment Default has been cured or
waived and any such acceleration has been rescinded in writing or (y) such
Guarantor Senior Indebtedness has been paid in full in cash or Cash Equivalents;
provided, that, a Note Guarantor may pay its Note Guarantee without regard to
the foregoing if such Note Guarantor and the Trustee receive written notice
approving such payment from the
102
Representative for the Designated Senior Indebtedness with respect to which the
Guarantor Payment Default has occurred and is continuing.
In addition, no Note Guarantor may pay its Note Guarantee during the
continuance of a Payment Blockage Period after receipt by the Company and the
Trustee of a Blockage Notice under Section 14.03. Notwithstanding the provisions
described in the immediately preceding sentence (but subject to the provisions
of the first paragraph of this Section 15.03), a Note Guarantor shall promptly
resume payments, if any are required, pursuant to its Note Guarantee, including
any missed payments, after such Payment Blockage Period ends, unless any Payment
Default otherwise exists.
In addition, during the continuance of any default (other than a
Guarantor Payment Default) with respect to any Guarantor Designated Senior
Indebtedness of a Note Guarantor pursuant to which the maturity thereof may be
accelerated immediately without further notice, except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
period (a "Guarantor Non-payment Default"), a Note Guarantor may not pay its
Note Guarantee for the period specified as follows (a "Guarantor Payment
Blockage Period"). The Guarantor Payment Blockage Period shall commence upon the
receipt by the Trustee (with copy to such Note Guarantor) of written notice (a
"Guarantor Blockage Notice") of such Guarantor Non-payment Default from the
Representative for such Guarantor Designated Senior Indebtedness specifying an
election to effect a Guarantor Payment Blockage Period and shall end on the
earliest to occur of the following events: (i) 179 days shall have elapsed since
such receipt of such Guarantor Blockage Notice, (ii) the Guarantor Non-payment
Default giving rise to such Blockage Notice is no longer continuing (and no
other Guarantor Payment Default or Guarantor Non-payment Default is then
continuing), (iii) such Guarantor Designated Senior Indebtedness shall have been
discharged or repaid in full in cash or Cash Equivalents or (iv) such Guarantor
Payment Blockage Period shall have been terminated by written notice to the
Trustee and such Note Guarantor from the Person or Persons who gave such
Guarantor Blockage Notice. A Note Guarantor may pay its Note Guarantee, after
such Guarantor Payment Blockage Period ends, unless any Guarantor Payment
Default otherwise exists. Not more than one Guarantor Blockage Notice to a Note
Guarantor in the aggregate may be given in any 360 consecutive day period,
irrespective of the number of defaults with respect to Guarantor Designated
Senior Indebtedness of such Note Guarantor during such period. In no event may
the total number of days during which any Guarantor Payment Blockage Period is
in effect extend beyond 179 days from the date of receipt by the Trustee of the
relevant Guarantor Blockage Notice, and there must be a 181 consecutive day
period during any 360 consecutive day period during which no Guarantor Payment
Blockage Period is in effect.
Section 15.04 Acceleration of Payment of Notes. If payment of the
Notes is accelerated because of an Event of Default, the relevant Note Guarantor
or the Trustee shall promptly notify the holders of the Bank Indebtedness of
such Guarantor (or the Representative of such holders) of the acceleration. Any
demand for payment under such Note Guarantor's Note Guarantee will not be
effective with respect to such Note Guarantor, until five Business Days after
such holders or the Representative of such holders receive notice of such demand
and, thereafter, such Note Guarantor may pay its Note Guarantee only if this
Article 15 otherwise permits payment at that time.
103
Section 15.05 When a Distribution Must Be Paid Over. If a
distribution from a Note Guarantor is made to Holders that because of the
provisions of this Article 15 should not have been made to them, the Holders who
receive the distribution shall hold it in trust for holders of Guarantor Senior
Indebtedness of such Note Guarantor and pay it over to them as their interests
may appear.
Section 15.06 Subrogation. After all Guarantor Senior Indebtedness
of a Note Guarantor is paid in full and until the Notes are paid in full,
Holders shall be subrogated to the rights of holders of Guarantor Senior
Indebtedness of such Note Guarantor to receive distributions applicable to such
Guarantor Senior Indebtedness. For purposes of such subrogation, a distribution
made under this Article 15 to holders of Guarantor Senior Indebtedness of a Note
Guarantor that otherwise would have been made to Holders is not, as between such
Note Guarantor, its creditors other than the holders of such Guarantor Senior
Indebtedness, and Holders, a payment by such Note Guarantor on such Guarantor
Senior Indebtedness, it being understood that the provisions of this Article 15
are and are intended solely for the purpose of defining the relative rights of
the Holders, on the one hand, and the holders of Guarantor Senior Indebtedness
of such Note Guarantors, on the other hand.
Section 15.07 Relative Rights. This Article 15 defines the relative
rights of Holders and holders of Guarantor Senior Indebtedness of each Note
Guarantor. Nothing in this Indenture shall:
(i) impair, as between a Note Guarantor and Holders, the obligation
of such Note Guarantor to pay the Guaranteed Obligations in accordance
with the terms of its Note Guarantee; or
(xii) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders of
Guarantor Senior Indebtedness of a Note Guarantor to receive distributions
otherwise payable to Holders.
Section 15.08 Subordination May Not Be Impaired by Note Guarantors.
No right of any holder of Guarantor Senior Indebtedness of a Note Guarantor to
enforce the subordination of the payments pursuant to such Note Guarantor's Note
Guarantee shall be impaired by any act or failure to act by such Note Guarantor
or by its failure to comply with this Indenture.
Section 15.09 Rights of Trustee and Paying Agent. A Note Guarantor
shall give prompt written notice to the Trustee of any fact known to it that
would prohibit the making of any payment to or by the Trustee in respect of its
Note Guarantee. Failure to give such notice shall not affect the subordination
of the payments pursuant to its Note Guarantee to Guarantor Senior Indebtedness
of such Note Guarantor. Notwithstanding Section 15.03, the Trustee or Paying
Agent may continue to make payments pursuant to such Note Guarantee and shall
not be charged with knowledge of the existence of facts that would prohibit the
making of any such payments unless, not less than two Business Days prior to the
date of such payment, a Trust Officer of the Trustee receives notice
satisfactory to it that payments may not be made under this Article 15. The
Company or any Note Guarantor, the Registrar or co-registrar, the Paying Agent,
or a Representative or holder of Guarantor Senior Indebtedness of any Note
Guarantor may give the notice; provided, that, if an issue of Guarantor Senior
Indebtedness of a Note
104
Guarantor has a Representative, only the Representative may give the notice. The
Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself or itself to be a holder of any Guarantor Senior
Indebtedness of a Note Guarantor (or a Representative of such holder) to
establish that such notice has been given by a holder of such Senior
Indebtedness or Representative thereof.
The Trustee in its individual or any other capacity may hold
Guarantor Senior Indebtedness of a Note Guarantor with the same rights it would
have if it were not Trustee. The Registrar and co-registrar and the Paying Agent
may do the same with like rights. The Trustee shall be entitled to all the
rights set forth in this Article 15 with respect to any Guarantor Senior
Indebtedness of a Note Guarantor which may at any time be held by it, to the
same extent as any other holder of Guarantor Senior Indebtedness of such Note
Guarantor; and nothing in Article 7 shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 15 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07.
Section 15.10 Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Guarantor Senior
Indebtedness of a Note Guarantor, the distribution may be made and the notice
given to their Representative (if any).
Section 15.11 Article 15 Not To Prevent Events of Default or Limit
Right To Accelerate. The failure to make a payment pursuant to a Note Guarantee
by reason of any provision in this Article 15 shall not be construed as
preventing the occurrence of a Default. Nothing in this Article 15 shall have
any effect on the right of the Holders or the Trustee to accelerate the maturity
of the Notes or make a demand for payment on a Note Guarantor pursuant to
Article 13 or the relevant Note Guarantee.
Section 15.12 Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 12 by the Trustee for
the payment of principal, premium, if any, or interest on the Notes shall not be
subordinated to the prior payment of any Guarantor Senior Indebtedness of any
Note Guarantor or subject to the restrictions set forth in this Article 15, and
none of the Holders shall be obligated to pay over any such amount to any Note
Guarantor or any holder of Guarantor Senior Indebtedness of any Note Guarantor
or any other creditor of any Note Guarantor.
Section 15.13 Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 15, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 15.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representatives for the holders of Guarantor Senior
Indebtedness or any Note Guarantor for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Guarantor Senior Indebtedness and other Indebtedness of such Note Guarantor, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 15. In the
event that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of such Guarantor Senior
Indebtedness to participate in any payment or distribution pursuant to this
105
Article 15, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Guarantor Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article 15, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 7.01 and 7.03 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article 15.
Section 15.14 Trustee To Effectuate Subordination. Each Holder by
accepting a Note authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination between the Holders and the holders of Guarantor Senior
Indebtedness of any Note Guarantor as provided in this Article 15 and appoints
the Trustee as attorney-in-fact for any and all such purposes.
Section 15.15 Trustee Not Fiduciary for Holders of Guarantor Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness of any Note Guarantor and shall not be
liable to any such holders if it shall mistakenly pay over or distribute to
Holders or the Company or any other Person, money or assets to which any holders
of Guarantor Senior Indebtedness shall be entitled by virtue of this Article 15
or otherwise. With respect to the holders of Guarantor Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article 15 and no implied
covenants or obligations with respect to holders of Guarantor Senior
Indebtedness of any Note Guarantor shall be read into this Indenture against the
Trustee.
Section 15.16 Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Holder by accepting a Note acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Guarantor Senior
Indebtedness of any Note Guarantor, whether such Guarantor Senior Indebtedness
was created or acquired before or after the issuance of the Notes, to acquire
and continue to hold, or to continue to hold, such Guarantor Senior Indebtedness
and such holder of such Guarantor Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Guarantor Senior
Indebtedness.
Section 15.17 Trustee's Compensation Not Prejudiced. Nothing in this
Article 15 shall apply to amounts due to the Trustee pursuant to other Sections
of this Indenture.
106
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
NORTH AMERICAN VAN LINES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
FLEET INSURANCE MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
FRONTRUNNER WORLDWIDE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
NACAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
NAVTRANS INTERNATIONAL FREIGHT
FORWARDING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vide President
NORTH AMERICAN DISTRIBUTION
SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
NORTH AMERICAN LOGISTICS, LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
NORTH AMERICAN VAN LINES OF TEXAS,
INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
RELOCATION MANAGEMENT SYSTEMS,
INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
GREAT FALLS NORTH AMERICAN, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
VANGUARD INSURANCE AGENCY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
ALLIED FREIGHT FORWARDING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
A RELOCATION SOLUTIONS MANAGEMENT
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
ALLIED INTERNATIONAL N.A., INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ALLIED VAN LINES TERMINAL COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
ALLIED VAN LINES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
EXHIBIT A
FORM OF NOTE(1)
NORTH AMERICAN VAN LINES, INC.
13 3/8% Senior Subordinated Notes due 2009
No. CUSIP No. [_________](2) [_________](3)
$ ___________________
North American Van Lines, Inc., a Delaware corporation (and its
successors and assigns), (the "Company"), promises to pay to ,
or registered assigns, the principal sum of $([____________] United States
Dollars) on December 1, 2009 [(or such lesser or greater amounts as shall be
outstanding hereunder from time to time in accordance with Sections 3.12 and
3.13 of the Indenture referred to on the reverse hereof)](4).
Interest Payment Dates: June 1 and December 1.
Record Dates: May 15 and November 15.
Additional provisions of this Note are set forth on the other side
of this Note.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
NORTH AMERICAN VAN LINES, INC.
By: ________________________________
Name:
Title:
This is one of the Notes referred to in the within-named Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:__________________________
Name:
Title:
Dated: ________________________
----------
(1) Insert any applicable legends from Article 2.
(2) Include this or other appropriate CUSIP Number for Initial Note that is
not registered under the Securities Act.
(3) Include this or other appropriate CUSIP Number for Exchange Note or
Initial Note that is registered under the Securities Act.
(4) Include only in Global Note.
A-1
[FORM OF REVERSE SIDE OF NOTE]
13 3/8% Senior Subordinated Note due 2009
1. Interest
The Company promises to pay interest semi-annually on December 1 and
June 1 in each year, commencing June 1, 2000 at the rate of 13 3/8% per annum
[(subject to adjustment as provided below)](5) [, except that interest accrued
on this Note for periods prior to the date on which the Initial Note was
surrendered in exchange for this Note will accrue at the rate or rates borne by
such Initial Note from time to time during such periods](6), until the Principal
Amount is paid or made available for payment. [Interest on this Note will accrue
from the most recent date to which interest on this Note or any of its
Predecessor Notes has been paid or duly provided for or, if no interest has been
paid, from the Issue Date.](7) [Interest on this Note will accrue from the most
recent date to which interest on this Note or any of its Predecessor Notes has
been paid or duly provided for or, if no such interest has been paid, from
[December 1, 1999](8).](9) Interest on the Notes shall be computed on the basis
of a 360-day year of twelve 30-day months. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest, which shall be the May 15 or November 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes not more than 15 days nor less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
[The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement (the " Registration Rights Agreement"), dated
November 19, 1999, among North American Van Lines, Inc., the Guarantors party
thereto, Banc of America Securities, LLC and Chase Securities Inc. Pursuant and
subject to the Registration Rights Agreement, until (i) the date on which this
Note has been exchanged for a freely transferable Exchange Note (as defined in
the Registration Rights Agreement) in the Registered Exchange Offer (as defined
in the Registration Rights Agreement), (ii) the date on which this Note has been
effectively registered
----------
(5) Include only for Initial Note when additional interest provisions, set
forth in the next paragraph, are included.
(6) Include only for Exchange Note.
(7) Include only for Original Notes.
(8) Insert first date of issuance of Additional Note and its Predecessor
Notes.
(9) Include only for Additional Notes (and Exchange Notes issued in the
exchange therefor).
A-2
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement (as defined in the Registration Rights Agreement), or
(iii) the date on which such Note is distributed to the public pursuant to Rule
144 of the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act (or otherwise is eligible for resale pursuant to Rule 144 (or any
successor provision) under the Securities Act without volume restriction, if
any): From and including the date on which a Registration Default (as defined
below) shall occur to but excluding the date on which such Registration Default
has been cured, additional interest will initially accrue on the Note at the
rate of 0.25% per annum. Such rate will increase by 0.25% every twelve weeks.
Any such additional interest shall not exceed such respective rates for such
respective periods, and shall not in any event exceed 0.50% per annum in the
aggregate, regardless of the number of Registration Defaults that shall have
occurred and be continuing. Any such additional interest shall be paid in the
same manner and on the same dates as interest payments in respect of this Note.
Following the cure of all Registration Defaults, the accrual of such additional
interest will cease. All Registration Defaults shall be deemed cured upon the
consummation of the Registered Exchange Offer. For purposes of the foregoing,
each of the following events, as more particularly defined in the Registration
Rights Agreement, is a "Registration Default": (i) neither the Exchange Offer
Registration Statement nor a Shelf Registration Statement (as defined in the
Registration Rights Agreement) has been filed with the SEC on or before the
120th day after the Issue Date (or if such day is not a business day, the first
business day thereafter); (ii) the Registered Exchange Offer is not consummated
on or before the 240th day after the Issue Date (or if such day is not a
business day, the first business day thereafter), (iii) if a Shelf Registration
Statement is required to be filed under the Registration Rights Agreement, (A)
the Shelf Registration Statement is not declared effective by the SEC on or
before the 270th day after the Issue Date (or if such day is not a business day,
the first business day thereafter) (or, in the case of a Shelf Registration
Statement required to be filed in response to any change in applicable
interpretation of the SEC, if later, on or before the 90th day after the
publication of such change) (B) after such Shelf Registration Statement is
declared effective and during the time that the Company is required to use its
reasonable best efforts to keep the Shelf Registration Statement in effect, such
Shelf Registration Statement ceases to be effective and continues not to be
effective (other than in connection with the consummation of the Registered
Exchange Offer), or the Company shall have suspended and be continuing to
suspend the availability of the Shelf Registration Statement, for more than 30
days in the aggregate in any consecutive twelve-month period.](10) (11)
2. Method of Payment
Payment of the principal of (and premium, if any) and interest on
this Note will be made at the office or agency of the Company maintained for
that purpose in The Borough of Manhattan, The City of New York or the corporate
trust office of an affiliate of the Paying Agent in New York City; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Note Register or, if a Holder has given wire instructions to the
Company, by wire transfer to a U.S. Dollar account maintained by the Holder with
a bank located in New York City.
----------
(10) Include only for Initial Note when required by the Registration Rights
Agreement.
(11) For an Initial Additional Note, add any similar provision, if any, as may
be agreed by the Company with respect to additional interest on such
Initial Additional Note.
A-3
3. Paying Agent and Registrar
Initially, State Street Bank and Trust Company, a Massachusetts
trust company, the Trustee, will act as principal Paying Agent and Registrar at
the corporate trust offices of its affiliate in the City of New York, State of
New York. The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Company or any Subsidiary of the Company may
act as Paying Agent, Registrar or co-registrar.
4. Indenture
This Note is one of the duly authorized issue of 13 3/8% Senior
Subordinated Notes Due 2009 of the Company (herein called the "Notes"), issued
under an indenture, dated as of November 19, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Indenture," which term shall have the
meanings assigned to it in such instrument), between North American Van Lines,
Inc., the Guarantors party thereto, and State Street Bank and Trust Company as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture) and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, any other obligor upon this Note, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The terms of the Notes include those stated in the
Indenture and those made a part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended, as in effect from time to time (the "TIA").
The Notes are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of such terms. Additional Notes may be
issued under the Indenture which may vote as a class with the Notes and
otherwise be treated as Notes for purposes of the Indenture.
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Note is entitled to the benefits of the certain senior
subordinated Note Guarantees of the Note Guarantors and may hereafter be
entitled to certain other senior subordinated Note Guarantees made for the
benefit of the Holders. Reference is made to Article Thirteen of the Indenture
and to any Note Guarantees for terms relating to such Note Guarantees, including
the release, termination and discharge thereof. Neither the Company nor any Note
Guarantor shall be required to make any notation on this Note to reflect any
Note Guarantee or any such release, termination or discharge.
5. Optional Redemption
(a) The Notes will be redeemable, at the Company's option, in whole
or in part, and from time to time on and after December 1, 2004 and prior to
maturity. Such redemption may be made upon notice mailed by first-class mail to
each Holder's registered address in accordance with the Indenture. The Notes
will be so redeemable at the following Redemption Prices (expressed as a
percentage of principal amount), plus accrued interest, if any, to the relevant
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date) if
redeemed during the 12-month period commencing on December 1 of the years set
forth below:
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Redemption
Period Price
------ -------
2004...................... 106.688%
2005...................... 104.458%
2006...................... 102.229%
2007 and thereafter....... 100.000%
(b) In addition, at any time and from time to time prior to December
1, 2002, the Company at its option may redeem Notes in an aggregate principal
amount equal to up to 35% of the original aggregate principal amount of the
Notes (including the principal amount of any Additional Notes), with funds in an
aggregate amount (the "Redemption Amount") not exceeding the aggregate cash
proceeds of one or more Equity Offerings, at a Redemption Price (expressed as a
percentage of principal amount thereof) of 113.375% plus accrued interest, if
any, to the Redemption Date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); provided, however, that an aggregate principal amount of the Notes equal
to at least 65% of the original aggregate principal amount of the Notes
(including the principal amount of any Additional Notes) must remain outstanding
after each such redemption. The Company may make such redemption upon notice
mailed by first-class mail to each Holder's registered address in accordance
with the Indenture (but in no event more than 180 days after the completion of
the related Equity Offering).
6. No Sinking Fund
The Notes will not be entitled to the benefit of a sinking fund.
7. Subordination
The Notes are subordinated to Senior Indebtedness, as defined in the
Indenture. To the extent provided in the Indenture, Senior Indebtedness must be
paid before the Notes may be paid. In addition, any Note Guarantees are or shall
be, as the case may be, subordinated to Guarantor Senior Indebtedness (as
defined in the Indenture), as applicable. To the extent provided in the
Indenture, Guarantor Senior Indebtedness must be paid before any Note Guarantee
may be paid. The Company and any Note Guarantor agree, and each Holder by
accepting a Note agrees, to the subordination provisions contained in the
Indenture and authorizes the Trustee to give such provisions effect and appoints
the Trustee as attorney-in-fact for such purposes.
8. Put Provisions
The Indenture provides that, upon the occurrence of a Change of
Control Triggering Event, each Holder will have the right to require that the
Company repurchase all or any part of such Holder's Notes at a repurchase price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest, if any, to the date of such repurchase (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date); provided, however, that the Company shall not
be obligated to purchase Notes in the event it has exercised its right to redeem
all of the Notes.
9. Denominations; Transfer; Exchange
A-5
The Notes are in registered form without coupons in denominations of
$1,000 and whole multiples of $1,000. A Holder may transfer or exchange Notes in
accordance with the Indenture and subject to certain limitations set forth
therein. No service charge shall be made for any transfer or exchange of Notes,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith. The
Company shall not be required (i) to issue, transfer or exchange any Note during
a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption (or purchase) of Notes selected for redemption
(or purchase) under Section 10.04 of the Indenture and ending at the close of
business on the day of such mailing, or (ii) to transfer or exchange any Note so
selected for redemption (or purchase) in whole or 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
The Trustee shall pay to the Company upon a Company Request any
money held by it for the payment of principal (and premium, if any) or interest
that remains unclaimed for two years. After payment to the Company, Holders
entitled to money must look to the Company for payment as general creditors and
all liability of the Trustee or Paying Agent with respect to such money shall
thereupon cease.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal of, and premium (if any) and interest on the Notes to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions, (i) the Indenture may be amended with
the consent of the Holders of a majority in principal amount of the Notes then
outstanding and (ii) any past default or compliance with any provisions may be
waived with the consent of the Holders of a majority in principal amount of the
Notes then outstanding (including in each case, consents obtained in connection
with a tender offer or exchange offer for Notes). In certain instances provided
in the Indenture, the Indenture may be amended without the consent of any
Holder.
14. Defaults and Remedies
If an Event of Default with respect to the Notes occurs and is
continuing, the Notes may be declared due and payable immediately in the manner
and with the effect provided in the Indenture.
15. No Recourse Against Others
No director, officer, employee, incorporator, member or stockholder,
as such, of the Company, any Note Guarantor or any subsidiary thereof shall have
any liability for any
A-6
obligation of the Company, or any Note Guarantor on the Notes under this
Indenture, the Notes, or any Note Guarantee, or for any claim based on, in
respect of, or by reason of, any such obligation or its creation. Each
Noteholder, by accepting the Notes, waives and releases all such liability. This
waiver and release are part of the consideration for issuance of the Notes.
16. Governing Law.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAW OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. THE TRUSTEE, THE COMPANY, ANY
OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES) THE
HOLDERS, AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR
STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
17. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. Abbreviations
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. 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 hereon.
A-7
[FORM OF TRANSFER NOTICE]
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint_________________________________________________________
agent to transfer this Note on the books of the Company. 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 of 1933, as amended, 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 neither of the foregoing boxes is checked, the Trustee or other Note
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 Section 3.13 of the Indenture
shall have been satisfied.](12)
Date:_________________________
--------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
Signature Guarantee:__________________________________
----------
(12) Include only for an Initial Note or an Initial Additional Note that bears
the Private Placement Legend, in accordance with the Indenture.
A-8
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
[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 of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:______________________ ____________________________________
NOTICE: To be executed by an executive
officer](13)
----------
(13) Include only for an Initial Note or an Initial Additional Note that bears
the Private Placement Legend, in accordance with the Indenture.
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box: [ ].
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.10 or 4.14 of the Indenture, state the amount (in
principal amount):
$
Date: __________________ Signed: ___________________________
(Sign exactly as your name appears on the other
side of the Note)
Signature Guarantee:_______________________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-10
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE(14)
The following increases or decreases in this Global Note have been
made:
Date of Exchange Amount of Amount of Principal Signature of
decreases in increases in amount of this authorized
Principal Principal Global Note officer or
Amount of this Amount of following such Trustees of
Global Note this Global decreases or Securities
Note increases Custodian
----------
(14) Include only for Global Notes
A-11
EXHIBIT B
Form of Supplemental Indenture in Respect of Note Guarantee
SUPPLEMENTAL INDENTURE, dated as of [_________] (this "Supplemental
Indenture"), among [name of [New Note Guarantor[s] (15)] (the "New Note
Guarantor[s]"), North American Van Lines, Inc., a Delaware corporation (the
"Company"), [any] [the] [each other] then existing Note Guarantor[s] under the
Indenture referred to below (the "Existing Guarantor[s]"), and State Street Bank
and Trust Company, as trustee (the "Trustee") under the Indenture referred to
below.
W I T N E S S E T H:
WHEREAS, the Company, [the] [any] Existing Guarantor[s], and the
Trustee have heretofore become parties to an Indenture, dated as of November 19,
1999, as amended (as amended, supplemented, waived or otherwise modified, the
"Indenture"), providing for the issuance of an aggregate principal amount of
$________of __% Senior Subordinated Notes due 2009 of the Company (the "Notes");
WHEREAS, Section 13.08 of the Indenture provides that the Company is
required to or may cause the New Note Guarantor[s] to execute and deliver to the
Trustee a supplemental indenture pursuant to which the New Note Guarantor[s]
shall guarantee the Notes pursuant to a Note Guarantee on the terms and
conditions set forth herein and in Article Thirteen of the Indenture;
WHEREAS, [the][each] New Note Guarantor desires to enter into this
Supplemental Indenture for good and valuable consideration, including
substantial economic benefit in that the financial performance and condition of
such New Note Guarantor is dependent on the financial performance and condition
of the Company and on [the] [such] New Note Guarantor's access to working
capital through the Company's access to revolving credit borrowings under the
Senior Credit Agreement; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the parties
hereto are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Note Guarantor[s], the Company, [the Existing Guarantor[s] and the Trustee
mutually covenant and agree for the benefit of the Holders of the Notes as
follows:
1. Defined Terms. As used in this Supplemental Indenture, terms
defined in the Indenture or in the preamble or recital hereto are used herein as
therein defined. The words "herein," "hereof" and "hereby" and other words of
similar import used in this Supplemental
----------
(15) Insert as appropriate.
B-1
Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.
2. Agreement to Guarantee. [The] [Each] New Note Guarantor hereby
agrees, jointly and severally with [all] [any] other New Note Guarantor[s], and
[all] [any] Existing Guarantor[s], fully and unconditionally, to guarantee the
Guaranteed obligations under the Indenture and the Notes on the terms and
subject to the conditions set forth in Article Thirteen of the Indenture and to
be bound by (and shall be entitled to the benefits of) all other applicable
provisions of the Indenture as a Note Guarantor. The Note Guarantee of each New
Note Guarantor is subject to the subordination provisions of the Indenture.
3. Termination, Release and Discharge. [The] [Each] New Note
Guarantor's Note Guarantee shall terminate and be of no further force or effect,
and [the] [each] New Note Guarantor shall be released and discharged from all
obligations in respect of such Note Guarantee, as and when provided in Section
13.03 of the Indenture.
4. Parties. Nothing in this Supplemental Indenture is intended or
shall be construed to give any Person, other than the Holders and the Trustee,
any legal or equitable right, remedy or claim under or in respect of [the]
[each] New Note Guarantor's Note Guarantee or any provision contained herein or
in Article Thirteen of the Indenture.
5. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE
APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. THE
TRUSTEE, THE COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR
ACCEPTANCE OF THE NOTES) THE HOLDERS, AGREE TO SUBMIT TO THE JURISDICTION OF ANY
UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE
CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE OR THE NOTES.
6. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby. The Trustee makes
no representation or warranty as to the validity or sufficiency of this
Supplemental Indenture.
7. Counterparts. The parties hereto may sign one or more copies of
this Supplemental Indenture in counterparts, all of which together shall
constitute one and the same agreement.
8. Headings. The section headings herein are for convenience of
reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
B-2
[NAME OF NEW NOTE GUARANTOR],(16) as
New Note Guarantor
By:
------------------------------------
Name:
Title:
NORTH AMERICAN VAN LINES, INC.
By:
------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY,
as Trustee
By:
------------------------------------
Name:
Title:
----------
(16) Add a signature block for each New Note Guarantor.
B-3
EXHIBIT C
Form of Regulation S Certificate
Regulation S Certificate
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: NORTH AMERICAN VAN LINES, INC. (the "Company")
13 3/8% Senior Subordinated Notes due 2009 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $_____ aggregate principal
amount of Notes, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S ("Regulation S") under the Securities Act of 1933,
as amended (the "Securities Act"), and accordingly, we hereby certify as
follows:
1. The offer of the Notes was not made to a person in the United
States (unless such person or the account held by it for which it is
acting is excluded from the definition of "U.S. person" pursuant to Rule
902(k) of Regulation S under the circumstances described in Rule 902(h)(3)
of Regulation S) or specifically targeted at an identifiable group of U.S.
citizens abroad.
2. Either (a) at the time the buy order was originated, the buyer
was outside the United States or we and any person acting on our behalf
reasonably believed that the buyer 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 was pre-arranged 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(a)(2) or Rule 904(a)(2)
of Regulation S, as applicable.
4. The proposed transfer of Notes is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling concession or
other fee or remuneration in respect of the Notes, and the proposed
transfer takes place before the Offshore Note Exchange Date referred to in
the Indenture, dated as of November __, 1999, between the Company and the
Trustee, or we are an officer or director of the Company or a distributor,
we certify that the proposed transfer is being made in accordance with the
provisions of Rules 903 and 904 of Regulation S.
6. We have advised the transferee of the transfer restrictions
applicable to the Notes.
C-1
You, the Company and counsel for the Company are entitled to rely
upon this Certificate and are irrevocably authorized to produce this Certificate
or a copy hereof to any interested party in any administrative or legal
proceeding 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 SELLER]
By:
------------------------------------
Name:
Title:
Address:
Date of this Certificate: _________________, _____
C-2
EXHIBIT D
Form of Certificate of Beneficial Ownership
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: NORTH AMERICAN VAN LINES, INC.
(the "Company")
13 3/8% Senior Subordinated Notes due 2009 (the "Notes")
Ladies and Gentlemen:
This letter relates to $___________ principal amount of Notes
represented by the offshore global note certificate (the "Offshore Global
Note"). Pursuant to Section 3.13(3) of the Indenture dated as of November
19,1999, relating to the Notes (the "Indenture"), we hereby certify that (1) we
are the beneficial owner of such principal amount of Notes represented by the
Offshore Global Note and (2) we are either (i) a Non-U.S. Person to whom the
Notes could be transferred in accordance with Rule 904 of Regulation S
("Regulation S") promulgated under the Securities Act of 1933, as amended (the
"Act") or (ii) a U.S. Person who purchased securities in a transaction that did
not require registration under the Act. Accordingly, you are hereby requested to
issue an Offshore Physical Note representing the undersigned's interest in the
principal amount of Notes represented by the Offshore Global Note, all in the
manner provided by the Indenture.
You, the Company and counsel for 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 Holder]
By:
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Authorized Signature
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